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.
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Comments 12
Bill
It's funny to compare the comments above with those in a recent article in the Los Angeles Times on the subject:
http://www.latimes.com/news/nationworld/nation/la-na-expletive2mar02,0,7115069.story
in which broadcasters are described thus:
Hmmm, the LA Times claims broadcasters just don't want to get fined, yet the article above makes clear that broadcasters are instead interested in pushing content and language boundaries.
The difference between an article intended for "public" consumption and one intended for the industry eyes?
Aurora
I've said it once and I'll say it again. The FCC is so overly cautious. This 10 pm rule I think is perfect yet, they don't really abide by it since "NYPD Blue" was sued even though they followed by the 10 pm rule. Now, is it truly the fault of the industry which is unregulated properly? Shouldn't the FCC see shows before they air? I mean, if they really want things to be "appropirate" whatever that means they should see show before it aired. Also, the FCC should have some kind of documentation which previously states what is inapropriate. It seems like they sue at random. In my opinion the NYPD Blue incident is not such a problem, based on some of the other shows on tv, just look at South Park, that show is so stupid, it trully brings down the bar on entertainment. Why isn't that being censored? I think the FCC should either be strict across the board or should leave the industry alone.
T Dog
Um... "South Park" is a cable show. The FCC doesn't regulate cable content. For now.
Steve
The 1934 Federal Communications Act (which established the FCC) states that the airwaves belong to the public. I guess that includes people who don't want to see (or don't want their children to see) an actress' derriere on television. If you want that stuff, pay for it..go to cable or satellite..or the net, where you can get anything. Oh...so children can see this stuff on cable and satellite? NOT IF SOMEONE DOESN'T PAY TO ALLOW SUCH IN THEIR HOMES. What about the net? THERE ARE PROGRAMS WHICH LOCK COMPUTERS AND/OR PREVENT ACCESS TO CERTAIN SITES. And, YOU DON'T HAVE TO HAVE A COMPUTER IN YOUR HOME!!!!!!!!!
Knumb knuts
One blue-nose with a few thousand mindless lemmings is dictating the viewing rules of an entire nation. What's wrong with this picture?
Broadcasters don't really care if "free tv" goes tits-up, they bought into cable way back when and advertisers followed like hyenas drawn to an oasis where the deer and antelope play.
Anyone notice that a nipple slip and Howard Stern cost $300,000, but Fox got off the hook for $90K?
I guess being a mouthpiece of the religious right really does a body good.
Criticinme
Networks and local stations have control on whether to air pre-recorded shows such as prime time dramas and sitcoms. But it is fair to fine a network or local tv station for a mistake that occurs on live broadcasts. Certainly a network or tv station has no control on what a guest might say or worst a "wardrobe malfunction" during a live broadcast.
Most newscasts and sports events are aired live and it seems unfair in my mind to fine a network for accidental, unplanned or unintentional acts that occur on live shows. Responsibility should be weighed on how much control broadcasters have over certain events. For example, should station be responsible if a live reporter filming on the street is unaware that someone decided to moon the camera from behind him? There are always going to be unavoidable mistakes that occur especially during live broadcasts. Should we do away with live broadcasts all together in fear that an accident could cause a 6 digit fine. Should a network be accountable if a streaker runs out in the middle of the Super Bowl and flashes the camera for a second before the cameraman or director can react to cut away. What if the streaker's intention was to sabotage a network with his/her wild act? Maybe in that case the saboteur should be held accountable for their actions rather than the network - but how do justify fining an unpreventable accident.
Britany P
For starters, I think it's absolutely ridiculous that cases from 2003 are still being referred to and settled. I understand that these things take a long time in court, but society as well as what's acceptable in society has changed so much that it's past the point. We need to focus on what is on t.v now, what is acceptable now, and what is going to be done to enforce decency on t.v now. Thoses cases should just be dropped or fined and the FCC should focus on the here and nows.
I was very surprised to find that actors and actresses formed a group to protest first amendment issues. I feel that it is less the fault of the actor than it is the writer or director, I'm surprised the actor or actress has any involvement at all. If a show has a nude scene or a cuss word, that shouldn't fall on the actor/actress's fault shoulder but the director who PAID the actor to committ the indecency.
And lastly, yes all this stuff will go to the web. I know we have to limit what can be seen on TV and I do think that the "safe harbor" time periods are useful and creative, but the more we push things off of TV and cable, the more bombarded the web will become. I think it might be a no-win situation. The best I could think of is to make sure the TV restrictions aren't too strict, so that directors and writers still feel that their material fits on air and doesn't resort to online.
Constance
The free market, not the government and industry can take care of this problem. Give us consumers the OPTION of cable TV a la carte. As soon as the Media Cartel is forced to stop extorting subsidy from the public for content we not only don't want but find offensive, the problem will go away. Remove the profit, remove the problem, and don't waste money on an inefficient government agency.
Roo
COnstance you are so right!
Lee Subke
The basic proposition about "indecency" is what we perceive (i.e.community standards). Do we, the community, believe that bestiality,blood-and-guts violence,unbridled sex("anything goes"),and excessive profanity, being "taught" by example to young minds is harmful to society in the longer run? No sane or honest person can refute the scientifically proven results that behavior is affected, and "standards" set in these matters by exposure to them. Certainly we can see daily evidence in the news.
I submit that the newly released figures showing that movies without the above have earned almost twice those with "R" ratings is powerful evidence that the "community" literally supports the former.
So forget the babble about "rights" the same way we don't condone the "right" to shout "fire" in a theatre. The public airways should resonate the public's will. That's the law, isn't it?
Thomas North
I just had time to briefly scan the comments of all you others, but want to commend all of you for your thoughtful insights on this issue, even if I do not agree 100% with all of them. For one, I need to point out that the NYPD Blue show that was fined was shown before 10 p.m. on the stations that were fined. The FCC could not fine indecency that occured after 10 p.m. unless it was also obscene, which it was not.
The core central function of the FCC, mandated by Congress acting for a the majority of American citizens, is to enforce the statute prohibiting obscene or indecent broadcasts on the public airwaves, as a matter of established law since 1934. If that has a chilling effect, it is the same chilling effect that law and order has on other crimes. The networks have proven that they are irresponsible.
anonymous
"The basic proposition about "indecency" is what we perceive (i.e.community standards). Do we, the community, believe that bestiality,blood-and-guts violence,unbridled sex("anything goes"),and excessive profanity, being "taught" by example to young minds is harmful to society in the longer run? No sane or honest person can refute the scientifically proven results that behavior is affected, and "standards" set in these matters by exposure to them. Certainly we can see daily evidence in the news."
The probelem with that is that the main purpose of TV is entertainment not to reflect a perfect society and people often find violence and sex entertaining and that different groups disagree about what the limits should be. There are some things in which the majority of people absolutely agree on but many others that they do not. Some think nudity is acceptable other so not etc.