Lawyer Article
FCC Indecency Decisions: Still Some Troubling Loose Ends
March 16, 2006
Published in the March 28, 2006 edtion of Southeast Tech Wire.
Excerpt
Following weeks of rumors that the Federal Communications Commission would address a backlog of indecency complaints, some of which had been pending since 2002, the Commission issued its decisions on March 15. According to the accompanying press release, the decisions resolved over 300,000 consumer complaints, although researchers have suggested that the vast majority were duplicative and derived from only a few sources. In some areas, the Commission broke new ground, while in others it resolutely ratified and applied prior decisions, dismissing a variety of Constitutional challenges to its existing policies.
In the most significant departures from past practice, the Commission has declared the so-called "s-word" to be presumptively profane and the Commission proposed forfeitures only against the licensee and station whose broadcast of objectionable material was actually the subject of a viewer complaint to the Commission. The latter could be a mixed blessing for broadcasters. On the one hand, an affiliate should not be held liable for a network or syndicated broadcast, if no complaints are lodged against the station. On the negative side, the new policy may provoke a flood of complaints against individual stations.
The Communications Act prohibits the broadcast of obscene, indecent or profane programming. The fullest statement of the Commission’s policies is set forth in a 75-page omnibus decision addressing complaints about approximately 40 programs. The decision begins by discussing the legal bases for the Commission’s standards for analyzing whether programming is indecent, profane or both. The Commission then applies these standards on a case by case basis, finding some that violated Commission standards, others that violated the standards but were excused (mostly because the offensive broadcasts occurred under a former policy that tended to overlook isolated incidents), and yet others that were not deemed to have violated the standards at all.
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This document is intended as an informational reminder and does not constitute legal advice. If you have any questions or would like to discuss a particular situation, please contact the Womble Carlyle Telecommunications, Cable & Broadcast Practice Group.
" "The purpose of this memo is to provide general information about significant legal developments and should not be construed as legal advice on any specific facts and circumstances.