In Depth

FCC Has Chilling Effect on Shows

By Punishing On-Air Indecency, Agency Affects What Airs

Federal Communications Commission Chairman Kevin Martin may be winning the fight he has picked with TV networks that air racy programming.

Mr. Martin’s agency lost the last major indecency court case in federal appeals court and he’s awaiting the Supreme Court’s decision on whether it will resuscitate that action against Fox.

But the FCC’s legal setbacks aside, groups that represent show creators say the agency’s crackdown is affecting which shows end up on broadcast TV, and which shots or lines get pulled.

Does that mean that without winning a decisive battle, the FCC is winning the war?

“Look at what happened to Ken Burns’ documentary [“The War”], re-edited and bleeped for language,” said Jonathan Rintels, executive director of the Center for Creative Voices in Media. “When you see a PBS station refusing to air a documentary about Marie Antoinette [because of a suggestive drawing in one scene], this is truly impacting broadcast television.”

Center supporter Steven Bochco’s “NYPD Blue” is the subject of the FCC’s latest obscenity push. Last month the agency fined ABC and some of its stations more than $1.2 million for a 2003 episode of the show that showed an actress’s bare buttocks.

In another case brought last week, 13 Fox stations were fined a total of $91,000 for a 2003 episode of “Married by America” that featured pixelated strippers at a bachelor and bachelorette parties.

ABC is appealing the fine in court. Fox hasn’t yet decided whether to appeal.

Meanwhile, hanging over these cases is the most notorious case of recent years, Janet Jackson’s 2004 Super Bowl halftime “wardrobe malfunction.” An appellate court is expected to rule shortly on the FCC’s fining 20 CBS stations a total of $550,000 for indecency.

Dan Isett, director of public policy for the Parents Television Council, a group that has pushed some of the indecency complaints, said he is hopeful the actions are making broadcasters think twice before they air indecent content. But he’s not convinced it has had a significant effect.

He cited a recent “Las Vegas” episode that had three women stripping in the middle of a casino, as well as segments of “Good Morning America” and “Today” on which Diane Keaton and Jane Fonda used obscenities on the air.

“Make no mistake. The [five-year] delay in acting is disappointing, but the most important thing is that the law is being applied,” said Mr. Isett. “It sends a message to broadcasters and the entertainment industry that they must abide by broadcast decency.”

The latest FCC actions followed a lull in indecency enforcement that came after broadcasters challenged agency rulings that fleeting expletives uttered at live events could bring fines. Some FCC observers speculated last week that the FCC wanted to await court rulings before issuing further cases.

The agency’s decision to move on the “NYPD Blue” and “Married by America” cases may have been influenced by the approach of the regulatory statute of limitations in those cases.

Mr. Rintels said the FCC decisions and some broad language in them could push more original programming to cable, over which the agency doesn’t have jurisdiction. That trend could compound broadcast TV’s slow bleed of viewers to cable.

He said programmers need more specific direction from the agency, so they know what crosses the line. The FCC in the “NYPD Blue” case unhelpfully described the display of nudity as “pandering, titillating and shocking,” Mr. Rintels said.

“There is no clear line,” he said. “The FCC’s verbiage was so over the top it increases the gray area.”

Robin Bronk, executive director of the Creative Coalition, agreed that the FCC is changing how TV programmers do business.

“I keep having members coming up to me saying ‘I wanted to use that line or I wanted to take on that issue and I can’t because it would be taken out,’” said Ms. Bronk, whose group was formed in 1989 by Hollywood stars including Alec Baldwin, Ron Silver and Susan Sarandon to spotlight First Amendment issues.

Adam D. Thierer, a senior fellow at the Peace & Progress Foundation, suggested the FCC’s indecency’s enforcement action could push content not only to cable but to the Web. He questioned the logic of limiting content on broadcast TV but providing it on other platforms.

“The real follow about this is that the ‘NYPD Blue’ fine probably drove more young eyes to see it on YouTube than on television,” he said. “Increasingly, broadcast decency enforcement is more about protecting adults from themselves than it is about protecting their kids. Kids aren’t in the broadcast audience. They’ve flocked to alternative platforms.”

Mr. Thierer also speculated that the wave of FCC indecency actions could signal that the Bush era at the FCC is ending. Mr. Martin, a champion of indecency enforcement, wouldn’t remain chairman under a Democratic president and is unlikely to remain under a John McCain presidency. The agency may be moving quickly to further its agenda before a change in staff, he said.