When Is a Dirty Show Indecent?

The FCC’s answers are increasingly confusing

FCC commissioners gave some Fox, WB and NBC stations a reason to be truly grateful Thanksgiving week by dismissing indecency complaints against gross-out episodes of Fox’s Keen Eddie and The WB’s Off Centre, as well as the sex-obsessed NBC flop Coupling.

The Fox program implied that the Keen Eddie cast hired a prostitute to masturbate a horse, and the Off Centre episode dwelled on backed-up toilets and a patient’s embarrassment as his urologist discussed his sexual dysfunction in an elevator.

The Coupling episode was a “close case” because it featured “sustained and repeated use of sexual innuendo and double entendre.” Although the sex talk was enough to render the program “shocking and titillating,” the lack of graphic depiction or description of sex—beyond kissing—so the FCC decided no punishment was necessary.

FCC’s Not All-Forgiving

The dismissals spared the owners an estimated million dollars or so in fines. The rest of the broadcast industry, however, shouldn’t assume the FCC is in a forgiving mood. The indecency crackdown launched by Janet Jackson’s Super Bowl striptease continues in full force, and these latest rulings only make it harder for station owners to predict when edgy programming is likely to get them in trouble.

“The more the FCC tries to explain its unclear indecency policies, the less clear they become,” complains John First Amendment attorney John Crigler, of Washington firm Garvey Schubert Barer.

Broadcasters might find it impossible to sort out how the FCC decides when a program has crossed any of the three hurdles that must be crossed before a fine is levied, he says. To be hit with a fine, a program must first be found to shock, titillate or pander to the audience. Second, it must be graphic in its depiction of sexual or excretory activities, and finally, it must be found to violate community standards.

The Keen Eddie case is one example of conflicted reasoning, Crigler says. The FCC dismissed the case because the cast simply hired a prostitute to “extract” semen from a horse and never explicitly told her how to obtain it; masturbation is never mentioned, and she never touches the horse.

However, when she balks, saying the whole exercise is “not natural,” one cast member calls her “a 40-year-old filthy slut” who will “do anything.” The FCC acknowledges in its order that the implications of the conversation might upset some viewers but says the scene “does not appear to have been intended to shock, titillate or pander.”

That easy-going reaction contrasts with the FCC’s earlier decision to fine KRON(TV) San Francisco for a newscast covering “Puppetry of the Penis,” a group of performers who appear clad only in capes. One cast member’s penis appeared on-camera—accidentally, the station insists. Even though the puppeteers were covered in a news program, the FCC judged that the station intent was to shock, etc.

“It’s hard to know what to read into any particular FCC decision,” Crigler laments.

Official’s Complaint

It’s not just industry defenders like Crigler who complain that the FCC is indecency enforcement is inconsistent.

Democratic FCC Commissioner Michael Copps—the agency’s most ardent indecency foe—complains that last week’s decisions make it easier for TV stations to get away with programming that would likely generate fines for radio stations. “We must ensure that we do not impose a different standard for television than for radio,” he said in his dissent over the Off Centre dismissal.

The FCC didn’t sanction scenes depicting the frantic toilet flushers on Off Centre because no feces-filled bowl was actually shown on screen. But a similarly crass episode only five months earlier generated at $27,500 maximum fine for WITH(FM) Washington. The station’s Morning Mess show was hit for a bit purportedly describing a man working a penis-enlargement device. Listeners were encouraged to call in and guess how much bigger his organ would get.

In each order, the FCC goes to great lengths to justify the decision for or against a fine, and the commission makes clear that there’s no hard and fast rule. Context is key. Keen Eddie got a pass because the episode appeared to be focused on the prostitute’s reaction to the bizarre request rather than airing an actual lewd act with a horse. Penis puppetry generated a fine because the snickering anchors demonstrated that they intended to pander.

But industry lawyers counter that the FCC’s context reviews are wildly unpredictable and sometimes don’t occur at all. When NBC stations were fined in March for airing U2’s Bono’s blurt of the f-word, the FCC order convinced many that any future use of profanity on the air would be judged indecent. FCC Enforcement Bureau Chief David Solomon disputed that blanket interpretation in a speech this summer. But his assurances weren’t enough to convince all ABC affiliates, and many refused to air Saving Private Ryan when their network ran the movie, which features plenty of swearing soldiers, last month.

As appeals of the Bono decision and Viacom’s fine in the Janet Jackson case wend their through the FCC and into court, broadcasters will attack the perceived inconsistency and, they hope, derail the indecency crackdown.