Indecency Update

Congress recently passed the Broadcast Decency Enforcement Act of 2005 (S.193) which will increase the penalties for broadcasting obscene, indecent or profane language. Licensees who broadcast indecent, profane, or obscene language outside of the 10pm-6am safe harbor will be subject to fines of up to $325,000 for each violation or each day of a continuing violation.
The Washington Post reports: The Price for On-Air Indecency Goes Up: “The bill, called the Broadcast Decency Enforcement Act, was passed unanimously by the Senate last month and cleared the House by a vote of 379-35. President Bush has vowed to sign the bill into law; it would allow the Federal Communications Commission to powerfully punish over-the-air broadcasters for airing raunchy content.”
During the first quarter of 2006, the FCC received 275,131 indecency/obscenity/profanity complaints, up from the 44,109 received during the fourth quarter of 2005.
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Mediaweek reports that CBS is challenging the validity of many of the filed complaints: CBS Stations: Indecency Complaints Invalid : “Virtually none of those who complained to the Federal Communications Commission about the teen drama Without A Trace actually saw the episode in question, CBS affiliates said as they asked the agency to rescind its proposed record indecency fine of $3.3 million. All of the 4,211 e-mailed complaints came from Web sites operated by the Parents Television Council and the American Family Association, the stations said in a filing on Monday.”
Finally, the Colbert Report (safely on cable) takes on the indecency regulations: The Word: Great F***ing Idea.

Hilden on TV Networks Indecency Challenge

Julie Hilden, Findlaw’s Writ: Four Major Television Networks Challenge the FCC’s Regulation of Indecency Why Modern Technology Has Made This Always-Dicey Area of Law Obsolete: “In this column, I’ll explain why indecency law has always been on extremely tenuous ground, from a constitutional perspective. I’ll also explain why – thanks to modern technology — the Supreme Court might finally take the networks up on their invitation to make indecency law a historical relic, in order to make way for a more robust information age.”

The F Word

The NY Times reports that the four television networks are challenging the Constitutionality of the FCC indecency and profanity standards: TV Networks Sue to Challenge F.C.C.’s Indecency Penalties: “With no allies among either the Democrats or the Republicans on the Federal Communications Commission nor any significant ones in Congress, the four broadcast networks, joined by the Hearst-Argyle Television group of stations, embarked late last week on a low-risk strategy of turning to the courts.”
See also Christopher M. Fairman, Ohio State Moritz College of Law, Fuck: “This Article is as simple and provocative as its title suggests: it explores the legal implications of the word fuck. The intersection of the word fuck and the law is examined in four major areas: First Amendment, broadcast regulation, sexual harassment, and education. The legal implications from the use of fuck vary greatly with the context.”

Are Indecency Regulations Obsolete?

The Authority to Regulate Indecency

Broadcasting is an area where the government has a greater interest in regulating indecent speech than in other media. In FCC v. Pacifica Foundation, the Supreme Court upheld the Commission’s authority to prohibit indecent speech in the broadcast media and to punish broadcast licensees who air indecency. Two unique characteristics of broadcast allow the FCC to regulate indecent speech broadcasts, “pervasive presence” in the airwaves and its “unique accessibility” to children. These characteristics were balanced against the idea that indecent speech falls “at the periphery of First Amendment concerns.”
Protecting children from inadvertent exposure to indecent speech represented the sort of interest that would allow the regulation of broadcast indecency. Both “the content and context of speech” are “critical elements” of the First Amendment analysis. Broadcast represents a pervasive presence in the household. The Court based its reasoning on a nuisance rationale under which “context is all-important.” Among the factors to be considered include the time of day of the broadcast, and how the content of the program will affect the composition of the audience. In contrast, the Supreme Court declined to extend the authority to regulate indecency to cable television and the internet because these media are not so pervasive. Citizens must make a conscious choice to subscribe to cable or to visit an internet location, while broadcast television permeates the airwaves and requires no subscription to view.
Because it is possible to prevent minors from accessing indecency on cable television, the internet, and for telephony, the Court has applied strict scrutiny and struck down regulations on indecent speech in those media. These media lack the same sort of pervasive push into the home as broadcast and must be evaluated under strict scrutiny. The availability of channel-blocking or internet filtering technology provides a “feasible and effective means” of furthering its compelling interests, which is less restrictive to speech than a ban based on time-channeling. Filtering and blocking make it possible to exclude certain individuals from access. Justice Powell noted that broadcast lacked that power to exclude a discrete part of its audience and must rely on time channeling to achieve similar results, where protected speech is available, but not readily accessible to minors.
Even with broadcast, an outright ban on indecency is impermissible under the First Amendment. Action for Children’s Television v. FCC. However, in order to target regulations of indecency to the times when children would be watching television or listening to the radio, a “time-channeling” approach is a “narrowly-tailored” regulation. A prohibition on indecent broadcasts outside of a 10 P.M. to 6 AM “safe harbor,” was found to be an acceptable balance of the First Amendment interests of adults with the public interest in preventing the broadcast of indecent speech to children. While other media are not regulated for indecency, the D.C. Circuit continued to single out broadcast for unique treatment, allowing that “radio and television broadcasts may properly be subject to different– and often more restrictive– regulation than is permissible for other media under the First Amendment.” Broadcast remains an anomaly within the Court’s First Amendment jurisprudence as the only field where government regulation of indecent, rather than obscene, speech is tolerated.
As part of its delegated authority to regulate broadcasting, the FCC has the specific authority to regulate the broadcast of “obscene, indecent, or profane language.” The FCC’s authority to regulate indecency relies on the statutory authority in 18 USC §1464, which criminalizes the broadcast of “obscene, indecent, or profane language by means of radio communication.”
The FCC Regulations prohibit licensees from broadcasting obscene material at all times and from broadcasting indecent material during the “safe harbor” period between 6 a.m. and 10 p.m. 47 C.F.R. §73.3999. In order to qualify as indecent, material must describe or depict sexual or excretory organs or activities and the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium.

Does technology obsolete indecency regulations?

In Pacifica, the Court justified regulating indecency on broadcast because of the unique characteristics of the broadcast medium, its “pervasive presence” in the airwaves and its “unique accessibility” to children. Today, however, the technological and media environment is sufficiently different that these circumstances may not justify limiting indecent speech on broadcast more than on cable television, satellite television, satellite radio, or the internet.
Nearly 90% of all households in the US have access to television through cable or satellite. For the vast majority of Americans, broadcast stations are just part of the televised content available. Cable and Satellite are not subject to indecency regulation because they are subscription services (one is less likely to unwittingly experience an indecent cablecast in their house than an indecent broadcast) and because they allow subscribers to filter out channels showing indecent content.
The V-chip allows television viewers to filter out content that may be indecent. Section 551 of the Telecommunications Act of 1996 encouraged the broadcast and cable industry to “establish voluntary rules for rating programming that contains sexual, violent or other indecent material about which parents should be informed before it is displayed to children,” and to voluntarily broadcast signals containing these ratings. Televisions equipped with the v-chip allow parents to block undesirable programming at the time it enters the home.
All televisions sold in the US since Jan. 1, 2000 are equipped with the V-chip. Initially, parents were enthusiastic about the prospect of the v-chip. A 1999 Kaiser family foundation survey found that 77% of parents surveyed would use the v-chip to block shows they didn’t want their children to watch. Yet, in 2004, usage of the V-chip stands at fewer than 15% of households, even though 74% have a v-chip equipped television. Researchers from the Annenberg Public Policy Center gave V-chip equipped television sets to families in Philadelphia and instructed the families on how to use the v-chip. After one year, only 30% of the families ever tried using the V-chip and only 8% of the families used the blocking feature regularly.
The FCC is preparing to transition broadcast television from conventional analog television to new digital technology sometime during the 21st century. DTV transition requires new sets or digital tuner converter equipment that will have the V-chip. At that point, all televisions capable of receiving broadcast television will have the V-chip and it will be as easy to filter broadcast television, as it is to filter cable television. Additionally, digital multicasting will ameliorate spectrum scarcity and allow broadcasters to increase the number of channels of content. Multicasting will also allow broadcasters to offer detailed metadata about the programs on subchannels. This data may include detailed information about potentially indecent content.
These new technological developments in broadcast offer arguments that the the special circumstances that justify regulating broadcast indecency may no longer exist.
In the 2004 Super Bowl Halftime Show Forfeiture Order, the Commission notes that the Supreme Court “expressly recognized in Reno the ‘special justifications for regulation of the broadcast media.'” The Commission finds that the availability of the V-Chip does not change the need for broadcast indecency regulations, because the V-chip “cannot be utilized to block sporting events such as the Super Bowl because sporting events are not rated.” In a footnote, the Commission agrees that the V-chip is an important protection outside the context of exempt programming, “but it does not eliminate the need for enforcing [the] indecency rule or undermine the constitutionality of that rule.”
However, the mere fact that sports and commercials are unrated under the V-chip scheme might not protect broadcast indecency regulations. Wouldn’t the least restrictive means of regulating speech be to require that commercials and sports programming are rated by the V-chip and then letting individual parents decide what programming can enter their houses?
If a court can find that sufficient safeguards exist to protect children from indecent content on broadcast television, then the First Amendment may prohibit indecency regulation. However, broadcasters may always be subject to greater obligations than cable and internet video distributors. Under the “public trustee” model of spectrum rights, broadcasters do obtain a broadcast licensee and the rights to valuable spectrum from the public and should have some obligation to serve the public. The safe harbor does serve a public policy by making a pragmatic decision to offer parents a set of “safe” channels that children can watch without concerns about indecency.

Chilling Effects from Broadcast Indecency Regulations?

The most recent FCC rulings on broadcast indecency caused the WB to edit a new show. The NY Times reports: WB Censors Its Own Drama for Fear of F.C.C. Fines

The pilot episode of “The Bedford Diaries,” which concerns a group of college students attending a class on human sexuality, had already been accepted by WB’s standards department. After the F.C.C. decision last week to issue millions of dollars in fines against broadcast stations, the network’s chairman, Garth Ancier, contacted Mr. Fontana and asked him to edit a number of specific scenes out of the show, including one that depicted two girls in a bar kissing on a dare and another of a girl unbuttoning her jeans.

The network’s standards and practices department previously cleared the show to air, believing that it would not run afoul of the indecency regulations.
Even if networks do not edit shows because of indecency regulations often, the constraints imposed by the indecency framework do affect the creative content of television. In some cases, these constraints compel writers to find alternative means of expression.
Battlestar Galactica uses the made-up word “frack” as an all-purpose expletive. The super-cheesy original Battlestar Galactica series, with Lorne Greene, invented the fracking expletive (along with, um, especially creative measures for time and currency.) As a result, though, dialogue on Galactica has its own particular tone and rhythm. If it used the normal English equivalents, the show might sound more like The Sopranos, just with the Jersey accents toned down a bit. Salon.com’s Video Dog has a compilation of clips incorporating the word: Motherfracker!
In another way, writers can build on the fact that networks will bleep the worst language. In a first-season episode of Arrested Development, Bringing Up Buster, the writers sent Buster on a 10-second long tirade, where we hear “cause I’m an uptight…[bleeeeeeeeep]…Buster…[bleeeeeeeep]… you old horny slut!” The video shows only the other characters’ (Michael, GOB and Lindsay) horrified reactions. The result is more offensive than anything the writers could think up, because those 10 seconds are filled with the foulest language each viewer can imagine, and that language may be different for each imagination.

Broadcast Indecency Regulation: The Profanity Standard

In Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005 (FCC 06-17, Mar. 15, 2006), the FCC discussed the standard used for determining when broadcasters violate the prohibition on broadcast profanity. The broadcast of “obscene, indecent, or profane language by means of radio communication” is prohibited. 18 USC

Broadcast Indecency Regulation: The Indecency Standard

Last week, the FCC released its latest three rulings concerning indecency regulations:

  1. Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005. (FCC 06-17, Mar. 15, 2006)
  2. Complaints Against Various Television Licensees Concerning their December 31, 2004 Broadcast of the Program “Without A Trace” (FCC 06-18, Mar. 15, 2006)
  3. Complaints Against Various Television Licensees concerning their February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show (FCC 06-19, Mar. 15, 2006)

With the Omnibus Order, the FCC has attempted to provide broadcasters some guidelines about the scope of the indecency and profanity standards as well as the formula the Commission uses to assess forfeitures. The Commission proposed forfeitures for six programs. Furthermore, the Commission found an additional four broadcasts indecent and/or profane, but declined to propose a forfeiture because those broadcasts occurred between the initial Golden Globe ruling, which indicated that a single, exclamatory use of the word “fucking” would not violate indeceny regulations, and the subsequent ruling that reversed that decision.
The Golden Globes Rulings
During the “Golden Globes Awards” broadcast in January 2003, U2 singer Bono uttered the phrase “this is really fucking brilliant” while accepting an award. In response to complaints, the FCC Enforcement Bureau ruled that such a use– a single use of the word as an intensifier– does not rise to the level of indecency. Golden Globes I. This decision was consistent with previous FCC rulings, but led to a vocal critique of this approach to indecency by those members of the public and members of Congress who support stringent regulations on broadcast indecency.
The Commissioners reevaluated the ruling and used the opportunity to reevaluate the Commission’s entire approach to isolated or fleeting broadcasts. The Commission decided that even a single utterance of certain words can make a broadcaster liable for violating indecency regulations. Golden Globes II “While prior Commission and staff action have indicated that isolated or fleeting broadcasts of the ‘F-Word’ such as that here are not indecent or would not be acted upon, consistent with our decision today we conclude that any such interpretation is no longer good law.”
While prior indecency rulings found that isolated and accidental uses of an expletive were not worth sanctioning, under the Golden Globes II standard, a single use of the “f-word” may be considered indecent, because it is “one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language” and its use “invariably invokes a coarse sexual image.”
The FCC stopped short of declaring any utterance of “fuck” to be per se indecent. Rather, the Commission based its ruling on a “reasonable expectation” test, made possible by the current technologies available to broadcasters. If a broadcast licensee should have a reasonable expectation of a live broadcast containing indecent or profane speech, the licensee is required to take measures to ensure that a single instance of indecent or profane language does not reach the public airwaves. In addition to finding that the Golden Globes broadcast violated the prohibition on broadcast indecency, the Commission ruled that the broadcast of Bono’s statement also ran afoul of the prohibition on broadcast profanity.
This post will discuss only the standard for determining what speech is indecent and not on the other part of the ruling– where the Commission discusses the forfeiture procedure. Writers and performers, not just broadcasters, are affected by these rules. The standard for indecency has significant implications for whether broadcast can be a medium for discussion of serious issues as well as a direct effect on the form and content of creative works not only intended for broadcast, but that may be repurposed and end up on broadcast at some point in the future.

The Indecency Standard

In order to be subject to indecency regulation, the subject material must fall within the scope of indecent content. That is, the material must “describe or depict sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium.”
Violence
Broadcast violence may be disturbing and offensive, but it can not be indecent, because the Commission’s definition of indecency extends to sexual and excretory organs and activities. The Commission dismisses a complaint about an episode of “Medium,” where, during a therapist session between a husband and wife, “the husband stands up and faces the wife… pulls out a gun from his waist and shoots his wife in the face” can not be indecent, because there is no description or depiction of sexual activities.
So, the most violent scenes from, say, The Sopranos could be broadcast without the threat of indecency fine, so long as the scenes do not contain sexual content or foul language, while a less disturbing and even comic scene could give rise to indecency liability for the broadcaster because of language or the depiction of sexual organs or activities.
Single Use Standard
With the omnibus order, the Commission affirms the Golden Globes II rule that a single use of the word “Fuck” is sufficient to be both indecent and profane. The Commission expands the rule, holding that “a single use of the word ‘shit’ and its variants” is both indecent and profane.
Because of the “core meaning of the ‘F-Word,’ any use of that word inherently has a sexual connotation and falls within the first prong of [the Commission’s] indecency definition.” Because the core meaning of the word shit (and its derivatives) refers to excretory activities, using this same logic, any use of the word falls within the scope of the indecency definition.
Patently offensive
The second prong of the indecency determination is whether the material is patently offensive by contemporary community standards. In determining whether material is patently offensive, the Commission considers “the full context in which the material appeared is critically important.” Three factors are cited as the most significant:

  1. the explicitness or graphic nature of the description
  2. whether the material dwells on or repeats at length descriptions of sexual or excretory organs or acticities; and
  3. whether the material panders to, titillates, or shocks the audience

These three factors are not exclusive. The Commission may take into account other relevant considerations. A broadcast does not have to include all three factors to be found indecent. A single inherently sexual or excretory word (e.g. fuck or shit) or brief image may give rise to indecency liability without dwelling on that word or image.
Language
With some exceptions, almost any use of the words “fuck” or “shit” will make broadcasters liable for violating indecency standards. The Commission found public broadcaster KCSM violated indecency regulations by airing part of Martin Scorsese’s “The Blues: Godfathers and Sons.” The Commission found that the use of repeated foul language was not necessary to express any particular viewpoint of an interview subject in the documentary. Instead, the repeated use of “vulgar, explicit, graphic” language is actionably indecent.
The Commission found uses of the word “shit” and its derivatives– including “bullshit,” “bullshitter,” and “owl shit”– to be actionably indecent.
Where the broadcaster has knowledge concerning the use of the foul word, the broadcaster must take reasonable steps to prevent the broadcast of that word. Based on the Golden Globes II ruling, an exclamatory use of “vulgar sexual and excretory terms” during a live broadcast is actionable indecency. A broadcaster can avoid the indecency violation by simply “airing the show on a delay sufficient to ensure that all offending words are blocked.” Children are apparently very likely to watch the broadcast of an awards show, so broadcasters are required to make efforts to avoid airing even spontaneous outbursts of indecency.
The Commission did not propose forfeitures for the Fox broadcasts of the 2002 and 2003 Billboard Music Awards because broadcasters were not on notice that such content would violate indecency standards. These broadcasts occurred after the Commission ruled that an exclamatory use of “fuck” was not indecent, but before the Commission overruled its earlier decision in the Golden Globes II ruling.

Nicole Ritchie in 2003: “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”
Cher in 2002: “People have been telling me I’m on the way out every year, right? So fuck ’em.”

A single use of the word “fuck” is not, however, indecent where the use is not part of the primary expression of the broadcast. Where the word appears on the side of a train, out of focus and in the background, that use is not graphic or explicit. The Commission found that a broadcast of “The Amazing Race” which contained this scene for three seconds was not indecent, because the image is not patently offensive.
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Even numerous and repeated uses of foul language may not be indecent. The Commission received “numerous complaints” about a 2004 episode of “The Oprah Winfrey Show” that focused on the movie “Thirteen,” teenage sexual practices and slang. The Commission found that the lengthy discussion and explanation of terms like “a tossed salad” was not indecent. The language was in the context of a segment “The Secret Language of Teens” with an educational purpose (teaching parents about the otherwise innocuous language teens use to describe explicit sexual acts) and not to pander, shock or titillate.
The use of words that are not derived from “fuck” and “shit” will generally not violate the indecency standard. “Hell,” “bitch,” “slutty” and “damn” do not refer to sexual or excretory organs or activity and are outside the subject matter scope of indecency. “Dick,” “dickhead,” “ass,” “up yours,” “my ass is huge,” “wiping his ass,” “fire her ass,” and “pissed off” are not sufficiently vulgar, graphic or explicit to support a finding of patent offensiveness.
Depiction of Sexual Activities
Even where nudity is obscured by pixellation or clothing, on-screen depictions of sexual activity may be sufficiently graphic to be indecent.
An episode of “The Surreal Life 2,” included a 10 minute sequence depicting a pool party that Ron Jeremy, “a veteran actor in pornographic movies,” threw for “twenty of his friends in the pornographic movie industry.” Even though nudity was obscured by pixilation, it is “unmistakable that partygoers are exposing and discussing sexual organs as well as participating in sexual activities” in the full context of the scene, which dwells on sexual organs activities and panders to, titillates and shocks the audience.
“Close-up shots of thong-clad buttocks, breasts and crotches, as well as females fondling their breasts, buttocks and genital areas while they dance, gyrate, and fondle one another in a sexually suggestive manner” in a Spanish-language music video are indecent because they are explicit and graphic, repeated, pandering and titillating.
While female cartoon characters dancing in lingerie falls within the subject matter of the indecency standard, a Simpsons episode containing such images is not indecent. The episode is not sufficiently graphic and explicit. “No cartoon character is shown completely nude, and there are no clear depictions of physical contact involving the cartoon character’s sexual organs in the scene.”
Where only a mere insinuation of sex is shown, as in a 2005 episode of “Alias” or a commercial for Golden Phoenix Hotel & Casino, such insinuation is not sufficiently graphic and explicit to be considered indecent. Broadcasting a fully-clothed football player who pretends to “moon” the crowd after scoring a touchdown is not graphic or explicit. The celebration is not dwelled upon and the broadcast and is not indecent.
The Spanish language movie “Con El Corazón En La Mano,” is found indecent, because it depicts “a woman being savagely attacked and raped in a public restroom.” Even though the participants remain clothed, the sexual nature of the scene is unmistakable. The intensity, length and violent nature of the scene make it shocking and disturbing enough to be indecent.
Depiction of Sexual Organs
The Commission finds indecent a 15 minute segment of the “Fernando Hidalgo Show” (a Spanish-language talk show) featuring and dwelling upon a female guest wearing “an open-front dress, with her nipples covered, but her breasts otherwise fully exposed.” This segment is indecent because of the length of the segment and the fact that the camera angles and zooms focus on the guest’s breasts in order to shock, pander to and titillate the audience. A comedic purpose does not negate a finding of indecency.
Even a brief display of a breast may give rise to indecency liability, if such a display is part of a performance which “discusses or simulates sexual activities” in order to pander to, titillate and shock the viewing audience.
An episode of “Will and Grace” includes a number of scenes where various characters “appear to touch Grace’s breast area.” Because it is “primarily to enhance her appearance during her date rather to elicit a sexual response,” this broadcast is neither graphic nor explicit and therefore not indecent.
Non-sexual references to or displays of sexual organs are not indecent if they do not shock, pander or titillate.
Grabbing a man’s genitals to perform a hernia check or to help the man hit the nigh notes while singing the national anthem is not indecent. (It may not be funny, either, but that is, fortunately, outside the scope of the Commission’s jurisdiction.) When not used to shock, pander or titillate, repeated uses of the word “penis” and euphemisms for that word are not indecent when discussing the organ in the absence of explicit or graphic descriptions or depictions.
The brief display in “The Today Show” of a man’s penis during news footage of a rescue from a flood is not indecent. The overall focus of the scene was on the rescue attempt. The Today Show scene is neither explicit nor graphic and does not dwell upon the images of a sexual organ. This may be distinguished from In re: Young Broadcasting of San Fransisco, where a broadcast featuring “Puppetry of the Penis” was ruled indecent, because that segment focused and dwelled on the performers’ genitalia.

Indecency

In the Washington Post today, an article about the FCC and indecency reglations: Delays, Low Fines Weaken FCC Attack on Indecency: “The agency’s role as broadcast nanny has come under greater scrutiny in recent months as consumers and lawmakers grow concerned about the increasingly coarse content of radio and television — last year, the FCC received more than 1 million complaints about programs. Broadcasters say the FCC’s content guidelines are too tough and arbitrarily applied while some lawmakers, viewers and interest groups blame the agency for being too lax.”
Reuters reports that the Senate Commerce Committee will hold hearings on broadcast indecency later this month: US Senate panel to examine decency issues November 29: “The U.S. Senate Commerce Committee said on Tuesday it plans later this month to discuss indecent content aired on television to determine how to proceed on potential legislation to limit such material.”
This week’s episode of Family Guy, “PTV” was a hilarious satire of and attack on the FCC indecency regulations. In a crackdown, classic TV shows, like the Dick Van Dyke show are edited to meet heightened levels of scrutiny; After Peter starts his own television station, the Commission arrives to crack down on indecency in real life. This description obviously doesn’t do justice to the show, which included a musical number about the “Freakin’ FCC.”