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Broadcast Indecency Is a Lightning Rod

Radio urges restraint and a streamlining of the current complaints process

iStockphoto/MirekP WASHINGTON — More than 100,000 public comments have been filed at the FCC on whether the agency should relax some of its broadcast indecency rules even slightly. The bulk of the comments are short and read something along the lines of this, from one citizen: “I am completely opposed to the FCC further allowing another level of moral decay on the ‘airwaves.’”

The commission in April said it had reduced its indecency complaint backlog by some 70 percent, eliminating more than 1 million complaints, though this was mainly by closing those that were too stale to pursue. The agency then asked for public input on whether it should adopt an “egregious cases” policy, implying it would focus less on fleeting or isolated indecency incidents.

Public comments to GN Docket 13-86 were due June 19; the commission is taking reply comments through Aug. 2.

Here are excerpts capturing some common themes from broadcasters, industry and public advocacy groups:


National Association of Broadcasters:

In the 35 years since the Supreme Court’s decision in FCC v. Pacifica, the rationale for broadcaster-specific limits on “indecent” speech has crumbled under the weight of changes in technology and media consumption. Specifically, with regard to the government’s concern that children may be exposed to adult-oriented or otherwise inappropriate material, there is no principled way to focus solely on broadcast content.

Children in particular enjoy unfettered access to content via devices that they carry in their pockets and backpacks — access that usually involves no subscription or special parental involvement. In this environment, the constitutionality of a broadcast-only prohibition on indecent material is increasingly in doubt.

Center for Democracy & Technology, Electronic Frontier Foundation, Public Knowledge, TechFreedom:

The commission’s proposal that it will only address “egregious” incidents of indecency is a step in the right direction. But this is not enough. [W]e urge the commission to do as little harm as possible to First Amendment values by quickly issuing a new enforcement policy that provides clarity and predictability to broadcasters. Broadcast speakers, like all speakers, should not have to defend themselves against vague and subjective accusations.

[W]e believe that it is simply a matter of time before the Supreme Court strikes down indecency regulation once and for all. Whatever the future of broadcasting might be, there is no question that broadcasters have the same First Amendment rights as other speakers.


Morgan Murphy Media, submitted by its Washington counsel:

The complaint-driven process shifts significant costs to broadcasters when meritless complaints are filed, and the Enforcement Bureau’s policies place significant pressure on broadcasters to sign away important rights as the cost of conducting legitimate business before the commission. The current system permits the filing of informal indecency complaints against broadcasters without any showing that the complaint is bona fide, not frivolous. As Morgan Murphy and others have found, the filing of an indecency complaint with the FCC may result in the Enforcement Bureau placing a hold on applications subsequently filed by the broadcaster in the ordinary course.


National Public Radio:

For responsible producers of broadcast programming, the consequences have been significant. NPR, its members and other public radio broadcasters have been forced to reconcile the sometimes competing demands to produce programming that serves the public interest while avoiding broadcasting indecent or profane matter. Because the public interest may require the use of language or other broadcast matter that is potentially objectionable to some, the task is far more challenging than simply employing a delay system.

News and public affairs programs, in particular, require the producer to make editorial determinations based on the issue(s) being addressed, the substance of the programming and the make-up and needs of the station’s listeners. The commission’s enforcement approach has made those determinations significantly more difficult.


KUCR(FM), Riverside, Calif., submitted by John Crigler, Garvey Schubert Barer:

KUCR is concerned, that with all the training, all the precautions, all the good faith, intelligence and devotion of our volunteer staff, and an 8-second delay — with all of that — accidents may still occur. For KUCR, with its small budget, an indecency fine would be catastrophic. The legal costs of responding to an FCC inquiry would be crippling, even if no fine were imposed. Clearly, the maximum $325,000 per incident fine is meant to chasten a corporate broadcaster who may have previously viewed a mere $32,500 fine simply as a cost of doing business by providing a racy language edge in the competitive world of drive-time morning zoo sensationalistic commercial radio.

The punishment for a small broadcaster in no way fits the violation.


Saga Communications:

Saga urges the commission to implement a “triage” system to discourage frivolous or unsubstantiated complaints and to identify “cookie cutter” indecency complaints. These complaints clog the system and harm the public interest by wasting scarce commission resources.

[Q]uickly review complaints as they come in and separate them into the following categories:

• Those that are not likely to result in a sanction, or are unsupported by probative evidence, even if the underlying facts are true; and
• Those that are likely to result in a sanction, if the underlying facts are true and supported by probative evidence.

Complaints in the second category may be further subdivided into:
• Those that are serious enough to merit an “enforcement hold” on the station; and
• Those that merit a sanction, but are not so serious to merit an enforcement hold.


Beasley Broadcast Group, Eagle Creek, Entercom Communications, Galaxy Communications, Greater Media, Journal Broadcast Group, Lincoln Financial Media and Ramar Communications, submitted by their attorneys at Lerman Senter:

If the FCC believes it necessary to continue to regulate in this area, not only should the substantive policies relating to indecent content be changed, indecency-related processing rules should also be overhauled. The current processing scheme is far too imprecise, costly and time consuming. To improve the processing of indecency-related complaints, the commission should only entertain documented complaints against specific stations from bona fide viewers and listeners. Such documentation has previously taken the form of either a tape or a transcript. Undocumented allegations of complainants should not be credited, particularly when there is no way to establish what material actually aired.

National Association of Broadcasters:

Procedural reforms to indecency enforcement practices are needed. In particular, the commission should: (i) dispose of clearly non-meritorious complaints very quickly; (ii) proceed with enforcement inquiries only where complaints have been submitted by a complainant with first-hand knowledge of the programming at issue and contain sufficient information and supporting documentation; (iii) increase transparency by notifying broadcasters of both the filing of indecency complaints and the dismissal of complaints; (iv) address and resolve complaints in a timely manner so that license renewal and other applications are not unduly delayed; and (v) take swift action on reconsideration petitions and responses to notices of apparent liability so as to reach final decisions and permit court review.


National Public Radio:

Lost amid the furor over a few high-profile incidents has been the deleterious effect of the commission’s enforcement efforts on responsible broadcasters. Because a more restrained approach to indecency and profanity enforcement would better accommodate the protected speech of public radio broadcasters and better allocate commission resources, NPR endorses the proposed “egregious cases” approach. …

By providing greater room for editorial discretion, an egregious cases approach allows a station or program producer to make programming decisions knowing the commission will pursue abuses of discretion rather than second-guessing individual word choices. By adopting a more practical approach to indecency and profanity enforcement, the commission staff could routinely dismiss complaints about broadcast matters that may involve an isolated anatomical reference or a subject matter offensive to a few but clearly not indecent or profane.


National Association of Broadcasters:

NAB believes that merely focusing enforcement on “egregious” indecency cases is not sufficiently clear. In revising its indecency standards, the commission must use language that is as precise as possible and provide relevant examples and context in its policies and decisions. If the commission cannot establish sufficiently clear indecency regulations so that broadcasters know what is expected of them, then broadcasters cannot be subject to liability for alleged violations of those standards.

Emmis Communications Corp., Radio One:

The FCC has not defined the term “egregious,” leaving broadcasters with no guidance as to what the commission will deem to be of such flagrant, blatant and glaring offensiveness to be deemed “egregious.” … The absence of meaningful and consistent guidance regarding the contours of the FCC’s indecency policy creates a real chilling effect on broadcaster speech.


Future of Music Coalition:

FMC strongly urges the commission not to expand its current indecency policy to include a ban on “fleeting expletives” from the airwaves. Such a policy creates an inhibiting environment that has a chilling effect on artists’ creative expression — among the speech the First Amendment was designed to protect. The chilling effect is most pronounced upon noncommercial and other small stations, including the low-power FM stations that FMC has long championed, and which the FCC is about to more broadly license.


Family Research Council:

FRC believes that the commission’s policy opposing the use of “fleeting” expletives is reasonable. Technology is available to broadcasters that allow them to delete indecent language in live programming. There does not need to be a deliberate and repetitive use of patently offensive speech to know that a broadcaster is allowing indecent language to be aired. On those occasions when something offensive slips through a broadcaster’s filters, the commission can assess whether a serious effort was made to keep such language from being broadcast before assessing penalties.


Radio Television Digital News Association, via attorneys at Wiley Rein:

The commission’s standards have left broadcasters with little real grasp of what is allowed and what is not, and lack the clarity that the courts and the constitution demand. While RTDNA is uncertain that the commission can come up with standards that ultimately will survive First Amendment scrutiny, at a minimum, the commission should immediately ameliorate the chilling impact on broadcast journalism by exempting from indecency regulation language or visuals contained in news and public affairs programming.


Sun Sounds of Arizona, submitted by Attorneys Ernest Sanchez, Susan Jenkins of the Sanchez law firm:

Many radio reading services have been unable to migrate to HD Radio because they have not been able to convince their FM main channel hosts to carry their services over digital audio broadcasting radio stations, despite the great bandwidth available to these stations. The resistance, in part, stems from the chilling effect of commission indecency policy enforcement. These stations are concerned because audio information services do not typically edit or censor the printed page read aloud for listeners, just as those printed pages would not be edited or censored before being read by sighted persons.


Family Research Council:

Simply put FRC opposes everything about this illegitimate and ill-advised proceeding. … This proceeding should only have been started after consideration by the full commission when its members did not include holdovers. The commission needs to start enforcing its indecency policies including its rejection of even “fleeting” expletives and nudity.