Sample 2 - The Failings of the Moral FCC

The following is a research/opinion paper written for a Telecommunication Regulation class during my final graduate semester at the University of Florida. Please be forewarned that there are several obscenities within the paper but they are important to certain cases within the subject matter.

Indecent Proposal: The Failings of the Moral FCC

A simple glance through the Merriam-Webster’s dictionary defines indecency as “ the quality or state of being indecent,” and/or “something (as a word or action) that is indecent,” the latter term defined as “not decent.” As wholly ambiguous and vague as these definitions are, there are activists groups and individuals who believe that the lines between decent and immoral content are clear for all to see. In actuality these “visible” lines are anything but fixed, rather, they are conditional responses based solely upon their own selective and conservative analysis and bias.

In the past several years one such organization, the Federal Communications Commission, has launched a crusade to rid the public airwaves of all things indecent, obscene and profane. Broadcasters have been fined record amounts for airing such offensive content while the maximum penalties for these violations have been proposed to increase more than tenfold. Clearly the FCC has taken a stand in the battle to keep our communities free of highly immoral material while the public at large has made their collective voices heard in an attempt to take back the airwaves for all wholesome Americans.

Or have they?

The FCC defines broadcast indecency as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities” (Obscenity). For the purposes of this paper, I will examine the recent explosion in indecency complaints on radio and television and the less than clear position the FCC has adopted during this outburst. Just what does the government’s recent push to increase fines for indecency violations mean in relation to freedom of speech? Is indecent content on the airwaves becoming more prevalent now or are pundits just paying closer attention than ever before? If the FCC cannot adopt a concise and fixed position on what constitutes indecent material, will interest groups with their own agendas set contemporary standards for the future? Upon review of such questions this paper argues that there should be limits as to what can and cannot be said on our airwaves. However these inconsistencies compiled with the recent actions of the government have already had a chilling effect on our nation's broadcasters that constitutes what many believe to be nothing less than censorship.

The Words That Built a Furor

On January 19th, 2003, the band U2 took to the stage at the Golden Globes to accept an award for their contribution to Martin Scorsese’s film Gangs of New York, titled The Hands That Built America. Frontman Bono, aka Paul Hewson, sparked a firestorm of controversy by expressing his sheer delight with the win when he exclaimed “This is really, really fucking brilliant” in front of NBC’s live television audience. Though a brief and arguably innocent statement it was enough to result in over 200 complaints sent to the Federal Communications Commission. In a Memorandum Report and Order issued October 3, 2003, the Commission concluded that:

As a threshold matter, the material aired during the “Golden Globe Awards” program does not describe or depict sexual and excretory activities and organs. The word “fucking” may be crude and offensive, but, in the context presented here, did not describe sexual or excretory organs or adjectives. Rather, the performer used the word “fucking” as an adjective or expletive to emphasize an exclamation. Indeed, in similar circumstances, we have found that offensive language used as an insult rather than as a description of sexual or excretory activity or organs is not within the scope of the Commission’s prohibition of indecent program content.

Moreover, we have previously found that fleeting and isolated remarks of this nature do not warrant Commission action.

(FCC R&O)

The Los Angeles based Parents Television Council, responsible for many of the 200 plus complaints sent to the FCC, immediately appealed the decision. “They (FCC) don’t take indecency seriously and that’s why you see it proliferating on the broadcast airwaves”, said PTC employee Lara Mahaney, referring to the government agency as a “toothless lion” (FCC OK’s).

However in early 2004 the lion bared its teeth and bit into the previous ruling on the Bono case, ruling that the utterance was indeed indecent and profane. The Commission, after granting an Application for Review filed by the Parents Television Council, overruled the earlier Enforcement Bureau decision and concluded that use of the “F-Word” in the context of the Golden Globe Awards was profane under 18 U.S.C. Section 1464 (FCC finds). The FCC chose not to fine NBC for the incident but put all other stations on notice that any future use of the word would be deemed indecent, leaving the stations open to “forfeitures and potential license revocation, if appropriate” (FCC finds).

While the indecent connotation of the word may be open for debate, it is arguable that usage of the word “fuck”, no matter how fleeting, is not appropriate for a mainstream broadcast audience. What is particularly disturbing about the FCC’s ruling is that it removed fleeting references from the protection of the First Amendment, as evidenced in FCC v. Pacifica (1978). The word used by Bono on the telecast was an infamous one at that but what of any other words that, while fleeting, may be indecent to some and not others? Who ultimately decides whether or not a particular word or phrase is guilty of this indecency test?

Earlier that year former FCC Chairman Michael Powell called for a dramatic increase in fines for broadcasters guilty of airing obscenities on their stations. Powell reasoned that since Congress had not raised fines in decades, he wanted to increase them by a factor of ten, stating that the maximum fine of $27,500 per incident was not enough to persuade broadcasters to watch their language. “Some of these fines are peanuts”, said Powell. “They’re just a cost of doing business. That has to change” (FCC chief). Thanks to ensuing action from the United States Senate, it soon did.

The Broadcast Indecency Act

On January 21, 2004, Rep. Fred Upton (R-MI) introduced a bill hoping to increase the penalties for broadcast violations of the prohibitions against the transmission of obscene or indecent content or language. The bill was co-sponsored by 145 members of the House, 110 of whom were Republicans. Under the rules of the proposed law, an amendment of the Communications Act of 1934, each violator would be subject to a forfeiture penalty of no more than $500,000 per violation with a cap of $3,000,000 per day (Broadcast, 2004). Under Section 3 of the 2004 Act, the Commission shall take into account the following factors in regard to each violation case:

I. Whether the material uttered by the violator was live or recorded, scripted or unscripted;

II. Whether the violator had a reasonable opportunity to review recorded or scripted programming or had a reasonable basis to believe live or unscripted programming may contain obscene, indecent, or profane material;

III. If the violator originated live or unscripted programming, whether a time delay blocking mechanism was implemented for the programming;

IV. The size and viewing or listening audience of the programming; and

V. Whether the programming was part of a children’s television program

-108 H.R. 3717 (Broadcast Indecency Act of 2004)

In addition, the bill obligated the FCC to rule on indecency complaints within 180 days of receipt. It also contains a “three strikes” policy, where license revocation proceedings begin automatically after a licensee is found guilty of a third offense, though revocation consideration is allowed after even the initial offense. The bill was passed in the House on March 11, 2004, though it would be withdrawn and reintroduced a year later.

On January 27, 2004, the FCC proposed a $755,000 fine against Clear Channel Communications, the single largest fine ever for indecent content, for four sexually explicit radio segments on four Florida stations airing the Bubba the Love Sponge show (FCC Issues). According to the FCC the segments included graphic discussions about sex and drugs that were “designed to pander to, titillate and shock listeners” (FCC Issues). Clear Channel was fined $27,500 for each airing of the segment, or 26 times, and an additional $40,000 fine for record keeping violations. Only one member of the five-person FCC panel, Commissioner Michael Copps, voted to oppose the fine but only because he believed the penalty was not severe enough. Copps, advocating complete license revocation for offenders, stated, “even egregious repeated violations will not result in revocation of license”(FCC Issues). The show’s host, Bubba the Love Sponge, aka Todd Clem, was summarily fired by Clear Channel. “A line has been crossed,” said Chairman Powell, unaware of the national hysteria that would come just weeks later (FCC chief).

A Malfunction of Judgment

On the evening of February 1, 2004, millions of viewers across the globe tuned into CBS to see Super Bowl XXXVIII between the New England Patriots and Carolina Panthers. In what has now become one of the most infamous moments in television history, singer Justin Timberlake exposed part of Janet Jackson’s breast during the halftime performance. Though a sun shaped “pastie” covered her nipple, the watchful eyes of the public were more than aware of the brief display, and the ensuing outrage was immense. If Bono’s appearance at the 2003 Golden Globes was the spark that lit the fire, this particular episode was the can of gasoline dumped upon the proverbial fires of immoral indignation.

CBS immediately claimed that it had no advance knowledge of the incident while halftime show producer MTV (which, coincidentally or not depending upon your point of view, promoted the show as having “shocking moments”) also claimed it was unaware. Meanwhile Timberlake, in what has also become an infamous expression, blamed the breast exposure on a “wardrobe malfunction.” An outraged Michael Powell promised a thorough and swift investigation into the matter. While the results of that investigation would not come for another seven months, the fallout from ‘Nipplegate’ was itself swift and, in fining terms, thorough.

On March 18, 2004, the FCC reversed its previous ruling regarding Bono’s usage of the word “fuck” during the Golden Globes. Though Powell and other FCC officers publicly moved for such a reversal at the time of the original ruling, the move came at a perfect time to mollify those still seething from the Jackson debacle. Then on April 9, the FCC went after Clear Channel again, issuing a $495,000 fine for indecent content broadcast by their most infamous (and to date, fined) target, Howard Stern.

The offensive broadcast in question was not a recent Stern show (it aired April 9, 2003), but the Commission found that it included specific references to oral sex. Under the FCC’s enforcement procedure, the maximum fine of $27,500 was levied against Clear Channel a total of 18 times (Frey). As with Bubba the Love Sponge just weeks prior, Stern was immediately dropped from all Clear Channel stations. “It has created a great liability for us and other broadcasters who air it”, wrote John Hogan, President and CEO of Clear Channel Radio in a written statement. “The Congress and the FCC are even beginning to look at revoking station licenses. That’s a risk we’re just not willing to take” (Clear Channel).

Commissioner Copps wrote that the decision was “a step forward towards imposing meaningful fines”, adding that the FCC “makes clear the indecency enforcement will address not only the station that is the subject of the complaint but also any other station that aired the same programming” (Frey). Stern, as expected, lashed out at the FCC’s decision. “Those who are campaigning against broadcast indecency are expressing and imposing their opinions and rights to tell us all who and what we may listen to and watch, and how we should think about our lives”, he charged (Clear Channel).

Stern is no stranger to FCC fines, as his show has accounted for more than half of the $4.5 million in broadcast indecency fines levied by the agency since 1990. Stations that carried the Stern show were fined roughly $2.5 million since 1990, the bulk of which were for shows broadcast between 1991 and 1993, and five of which were settled with a record lump sum payment of $1.71 million in 1995 (Dunbar). “I’m so frustrated by the amount of censorship that’s been going on,” said Stern. “The FCC is on such a witch hunt against me that they actually go back 2 or 3 years for reasons to fine me” (Lerner). If the notorious shock jock alone accrued such hefty fines for this period of time, surely the number of total indecency violations on broadcast television and radio for the past decade must be even more phenomenal, right?

In a study of FCC records, the Center for Public Integrity identified 75 broadcast indecency proceedings instigated by the agency since 1990, focusing on Notices of Apparent Liability. Not only are a relatively few number of shows responsible for the majority of these fines, the monetary amount of the penalties have increased dramatically.

According to this study, the FCC proposed more fines for broadcast indecency in 2004 than the previous 10 years combined (Dunbar). The Center also found that only 4 percent, or three total fines, of these monetary penalties were levied against television broadcasters in the past 14 years. For the skeptics that insisted the sudden rush to clean up the airwaves in 2004 was more political than moral, figures like these are intriguing.

Nevertheless, advocates of cleaner airwaves will claim that the abhorrent quality of the offending broadcasts, rather than quantity, are what matter more when pressing for increased government legislation on indecency. This is ironic in a sense, for many of the complaints sent to the FCC are few in quantity (in relation to the American public as a whole), yet dominated by specific interest groups pushing their agenda upon the government. According to a December 2004 FCC estimate by Mediaweek, 99.8 percent of all indecency complaints in 2003 were filed by the PTC. Through October 2004, all complaints other than those concerning the Janet Jackson debacle were filed by the PTC, or 99.9 percent (Shields). The PTC filed 217 of the 234 complaints filed concerning the Golden Globe awards (FCC R&O).

The Parents Television Council defines itself as a grassroots organization with more than a million members nationwide. Its self-defined mission is “to promote and restore responsibility and decency to the entertainment industry in answer to America's demand for positive, family-oriented television programming by fostering changes in TV programming to make the early hours of prime time family-friendly and suitable for viewers of all ages “ (PTC). Pundits of the PTC claim the organization wants desperately to serve as the conscience of the entertainment industry, but this is actually a claim of their mission statement. “It means that a really tiny minority with a very focused political agenda is trying to censor American television and radio,” writes Jonathan Rintels, president of the Center for Creative Voices in Media, an artists’ advocacy group.

The Council’s main site maintains a thorough list of what they believe are the worst shows on television each week, with clips of selected “red light” shows presented online for appalled parents to review. While the FCC does not actively monitor television content, the PTC has a legion of staffers who review nearly all televised material between the hours of 8am-11pm. The PTC acknowledges that if their campaign is ultimately successful, the bulk of indecent and obscene content will be pushed to cable and satellite. However, their scope is not limited to broadcast television alone, and they eventually hope to have cable and satellite television subject to the same standards as broadcast.

“Each evening, the PTC records every prime-time program on ABC, CBS, Fox, NBC, Pax, UPN, and the WB, as well as original programming on expanded basic cable. The following day, the PTC’s team of entertainment analysts, with headphones, computers, and remote controls in hand, watches and transcribes verbatim every offensive word and every bit of sexual innuendo, and describes depictions of sexual activity and violence in detail. These analysts are men and women with stomachs of steel.

The information from the analysts is fed into the PTC’s custom-designed Entertainment Tracking System (ETS). The staff uses the information to compile e-mail reports, monthly newsletters, and in-depth studies. The researchers also use intelligence from ETS to produce frequent press releases and alerts exposing TV’s gratuitous sex and graphic violence, and to educate sponsors about program content.”

-Parents Television Council

In June, Clear Channel settled all outstanding fines from the FCC by paying a record sum of $1.75 million, topping the $1.7 million paid by Infinity Broadcasting in 1995 for indecency violations also committed by Stern. “We didn’t agree that all the complaints were legally indecent,” wrote Andrew Levin, chief legal officer for Clear Channel, “but some clearly crossed the line”(McCarthy). The PTC assailed this decree, calling it nothing more than a government payoff, though all along it called for a steep fine. At this point, Viacom/CBS knew that their time to pay was steadily approaching, and it would not get off light.

On September 22nd, Viacom was hit with a fine of $550,000 for the Super Bowl XXXVIII incident. The FCC proposed the maximum penalty against each of the 20 CBS licensees owned by Viacom, yet did not propose any forfeitures against the non-affiliates that aired the show. The official reason for the fine was that Viacom/CBS not only planned and approved the telecast, but also the history of indecency violations committed by Infinity Broadcasting and its subsidiaries were taken into account by the Commission as well. “While we regret that the incident occurred and have apologized to our viewers, we continue to believe that nothing in the Super Bowl broadcast violated indecency laws”, said a statement from CBS after the ruling. “Furthermore, our investigation proved that no one in our company had any advance knowledge about the incident” (CBS).

“As a result of the Janet Jackson thing, we have taken precautions, adding a five second delay to everything on our network other than live news and sports” said CBS chairman and Viacom co-president Leslie Moonves in a March 2005 interview with Playboy magazine. “We have taken precautions that it wont happen again. I believe the FCC should say, ‘All right, CBS has acted responsibly to address a problem that occurred’, that should be the end of it” (Sheff).

The end to the ordeal for Viacom/CBS came two months later, when the broadcasting giant entered into a $3.5 million consent decree with the FCC. Nevertheless, some FCC Commissioners were still not satisfied. Two members publicly objected to the fine as too lenient, expressing that even those affiliates not owned by CBS should have been fined also. “I am concerned about the effect of today’s decision on the commission’s license renewal process,” wrote Commissioner Copps in a concurring statement. “The totality of a broadcaster’s record is pertinent and should be considered when licenses are renewed” (Boliek, Viacom). Though Viacom agreed to immediately suspend or terminate any on-air employee whose broadcast results in an indecency fine proposal, it challenged the Super Bowl fine, calling it unfair and unwarranted (Boliek, Viacom). To date, the network has still not paid the $550,000 fine, which was excluded from the scope of the Consent Decree.

The Broadcast Indecency Act was passed again in the House on February 16, 2005 by a 389 to 35 vote (Ahrens, House). “Today, we are delivering something of real value to American families,” said Rep. Upton after the bill was passed. “A parent should not have to think twice about the content on the public airwaves. Unfortunately, that situation is far from reality.”

Is the FCC promoting a culture of censorship?

Howard Stern believes that the current push to regulate the airwaves is nothing more than a “witch hunt,” and in a sense he may very well be correct. There are many Stern fans that do not always take his antics seriously and accept the fact that there are those who cannot stomach his particular brand of comedy. Should the personal standards of his fans be precedent for others in their community, or should those whom abhor Stern govern the sensibilities of others? Should the standards of one person, or perhaps five hundred, decide what is “reasonable” and appropriate for everyone else in the country?

The FCC holds to the claim that their contemporary community standards are not local, do not encompass a particular geographic area, and are based upon the average broadcast listener/viewer and not the sensibilities of any individual complainant or group. This is where I find serious fault with the FCC’s position.

1.) The FCC is empowered with the ability to fine those who violate indecency laws, regardless of how many complaints they receive, which is something I can accept. However, how can they say they do not cater to the sensibilities of any individual or group yet respond to numerous grievances dominated by groups such as the PTC? How is the removal of personalities such as Stern or Clem justified when their detractors make up barely a percentage of their immense audience? For that matter, how do you enforce and protect community standards yet say those same standards do not encompass one particular area? Can any one group, whether the FCC or the PTC, determine the breadth of America’s standards, and if so, should they? It is not the job of the FCC to monitor every piece of content on our airwaves, but if they are upholding the law, should that important responsibility belong to them as opposed to the PTC and other watchdogs?

2.) The FCC steadfastly states that it is against censorship of any shape or form, and while I believe their intent to be true, I disagree with their practices. Michael Powell and the other Commission members never once censored material directly, though it is through the power of the FCC fines (now increased more than tenfold by the government) that indirect censorship occurs. When threatened with a $500,000 fine per offensive utterance, the FCC wields a powerful hammer which casts a cloud over all broadcasters in the US, regardless of their format. Stations wishing to avoid the scarlet letter of a whopping fine have begun to censor themselves in earnest, many times before the FCC has a chance to offer input regarding potentially fineable material. Broadcasters such as CBS/Viacom and NBC have repeatedly denied guilt when forced to pay steep indecency fines, yet both went ahead and agreed to their respective Consent Decrees. There is a dangerous precedent being set here, where powerful networks profess innocence yet refuse to stand up for their First Amendment rights as broadcasters. Once these companies choose quick settlements over principle, the FCC could very well begin fining at will. This could be even more disastrous for smaller outlets that do not have the capital of a Viacom or Clear Channel, potentially destroying their entire operation in the process.

3.) Numerous broadcasters are adopting a “zero-tolerance” policy when it comes to their on-air talent, threatening to immediately suspend or terminate those under fire for indecency violations/complaints. I believe this is playing directly into the hands of the FCC and watchdog agencies such as the PTC. If the powers that be know there are objectionable (or at the least, dissenting) voices under the umbrella of a zero-tolerance policy, would immediate fines regardless of substance not further their own agenda? Though this is speculation at this point, the mere possibility of this activity in such a subjective battle is chilling.

4.) Most importantly, the Federal Communications Commission cannot come to a solid agreement on what constitutes indecent content. Even more, the Commission cannot even agree on their own decrees! If Commissioners such as Michael Copps find that a particular Consent Decree is not powerful enough, why do he and the other members not settle this before the Decree is finalized and not after? I would say that I disagree with their conviction, but I do not see any to find fault with. It seems as if these Commissioners are never satisfied no matter what the outcome of these cases. “The FCC is not able to define indecency and keeps changing its mind about what it is,” writes ACLU counsel Mary Johnson. “ If the FCC can’t make the determination, how can broadcasters?” (Harper).

Just weeks after the Super Bowl fiasco, Michael Powell was asked about his own standard of decency. “I know it when I see it,” he said. “I don’t think you need to be a lawyer to understand the basic concepts of common decency here” (Hilden). Well, Mr. Powell, I am no lawyer myself, but if the basic concepts of common decency are so easily understood, why has the Commission not reached a firm ground? If you “know it when you see it”, please elaborate and share your extensive testing prowess with the country, especially those broadcasters operating in fear that they might violate the vague and unclear rules of your former employer.

“I will never sit here and do hypotheticals about whether something is liable for not,” Powell says. “If we receive complaints about a broadcast, that will be investigated and a decision will be made, I think, responsibly” (Boliek, Cablers).

The situation reached a boiling point in the winter of 2004 when numerous ABC affiliates refrained from showing Steven Spielberg’s World War II epic Saving Private Ryan out of fear they would be subject to indecency fines for the film’s excessive violence. “Stations were worried that they would be fined and went to the FCC and asked in advance if they would get in trouble, and the FCC stayed silent,” says Moonves. “In my view both the stations and the FCC were wrong. People are living in fear. It’s a dangerous precedent” (Sheff).

It has been said that the media does not advocate social change, instead it amplifies it. The world is not as clean and peaceful as all of us would like and the media merely reflects society’s attitudes as opposed to manipulating them. While we have the freedom to try and make things better for ourselves as well as our fellow man, we do not have the right to deny the freedoms of others so that we may mold society in the way we see fit. The FCC, much like the PTC, has good intentions on paper. However, despite these, they are misguided, imprudent and erroneous in the way they go about forcing their objectives upon the people of this country. Those who stand against the FCC and the rash of broadcast finings receive just as much bad judgment as Howard Stern. It is not so much a matter of rendering all controversial content decent. Rather, it is about protecting those voices from being unfairly regulated and punished by an indecisive government agency responding to select agenda pushing activists. As long as the FCC remains mum, these groups wield considerable power.

The rash of indecency complaints and fines in 2004 were an overzealous election year attempt to appease the moral majority and scare broadcasters for years to come. If the trend worsens, society will lose out, as diverse ideas and voices become increasingly absent from our airwaves. By constructing a firm definition of indecency (with a faithful attempt to cultivate as much public opinion as possible), the power is given back to the broadcasters, who can then use the template to regulate themselves without fear. “We need to affirm local broadcasters’ ability - and responsibility – to reject inappropriate programming,” says current FCC Chairman Kevin Martin. “This obligation is critical to local broadcasters’ ability to keep coarser network programming off the air in their communities. The network affiliates asked us to clarify this right over three years ago. We still have not acted” (CBS).

Now is as good a time as any, Mr. Chairman.


Citations

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