Feds Change the Rules

Mar 22, 2004  •  Post A Comment

In a seismic shift in its regulatory approach to indecency enforcement, the Federal Communications Commission last week ruled that use of the F-word and similar expressions runs afoul of agency regulations-no matter in what context the words are used.
Also last week the agency announced that it had expanded the scope of its indecency enforcement to include profanities-vulgarities that may not include sexual or excretory overtones. In addition, the FCC made clear that for the first time it will investigate undocumented indecency complaints. That has the potential to greatly increase the number of incidents the FCC investigates and takes action on.
In a statement, FCC Chairman Michael Powell said the decisions were simply intended to signal that “vulgar language” will no longer be tolerated on the nation’s airwaves.
But industry attorneys said the sweeping scope of the new regulatory regime represented the most extreme crackdown ever on off-color programming by the federal government. “Staggering,” said one longtime media industry attorney. “This goes farther than they’ve ever gone.”
The unprecedented crackdown is the latest move by the Republican-led Congress and Republican majority at the FCC to get tough on indecent programming following the Janet Jackson Super Bowl incident. In a related move last week, the FCC announced a $27,500 fine for Infinity Broadcasting’s WKRK-FM in Detroit over a 2001 broadcast of shock jock Howard Stern’s show. In the program at issue, Mr. Stern was cited for talking about receiving oral sex while sitting on a toilet.
Most of the FCC’s precedent-shattering moves were included in a decision overturning an agency staff ruling that held that rock star Bono’s use of the expression, “F***ing brilliant,” on NBC’s broadcast of last year’s Golden Globes Awards had not run afoul of indecency prohibitions.
Agency precedent has long held that the context of an allegedly indecent remark on a broadcast must be taken into consideration. Citing that precedent, the FCC staff ruled that Bono and NBC warranted an indecency pass because the F-word had been used adjectivally, and not in reference to sexual activity.
But in its decision last week, the FCC’s five commissioners held that from now on, any use of the F-word “or a variation, in any context” will be considered inherently indecent.
“The `F-word’ is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language,” the commissioners said. “Its use invariably invokes a coarse sexual image.”
Under the FCC’s traditional definition, indecency violations are supposed to be limited to references that evoke “sexual or excretory activities or organs in terms patently offensive.”
But in its Bono decision, the FCC warned that profanity-that is, “vulgar, irreverent, or coarse language” that may not refer to sexual or excretory activities-may also be subject to the full gamut of agency indecency punishments.
“Broadcasters are on notice that the commission in the future will not limit its definition of profane speech to only those words and phrases that contain an element of blasphemy or divine imprecation, but, depending on the context, will also consider under the definition of `profanity’ the `F-word’ and those words (or variants thereof) that are as highly offensive as the `F-word.”’
The FCC’s decision last week offered no other specific examples of words it considers profane, and some industry attorneys were quick to question whether the restriction was so broad that it could be interpreted to include racial epithets. Said the FCC, however: “We will analyze other potentially profane words or phrases on a case-by-case basis.”
Said an industry attorney: “Broadcasters are going to be advised that any of the seven dirty words and any close equivalents are going to be problematic.”
In its Bono decision, the FCC also spelled out that from now on, the agency may hit broadcasters with separate fines for each indecency in a single broadcast.
“Serious multiple violations of our indecency rule by broadcasters may well lead to the commencement of license revocation proceedings,” the FCC added.
For years, the FCC has made a point of taking a pass on indecency complaints that don’t include a transcript or a recording of an alleged violation.
But in a decision last week that resulted in a $55,000 fine for Clear Channel Communications, the FCC’s commissioners made clear that the agency will investigate indecency allegations from now on, without any concrete documentation.
In the case at issue, the agency fined two Clear Channel radio stations in Florida for interviewing a couple that was supposedly having sex on-air.
“I am pleased that the commission is proceeding in this case without a tape or transcript,” said Democratic FCC Commissioner Michael Copps.