The Federal Communications Commission attempted to clarify its policy against “indecent” broadcasts, amidst calls from both inside and outside the agency for stepped-up enforcement.  The Commission also issued two controversial rulings fining broadcasters for indecent speech, one of which it later retracted.  The other resulted in a federal lawsuit against the FCC.  The agency also opened a proceeding to review its process for handling complaints from the public, which could lead to a constitutional confrontation.

     In April 2001 the Commission issued a Policy Statement purporting to clarify its criteria governing enforcement of the indecency standard.  The FCC’s indecency policy, which implements 18 U.S.C. Sec. 1464, prohibits broadcasts between 6 a.m. and 10 p.m. depicting or describing sexual organs or activities in a “patently offensive” manner as determined by contemporary community standards for the broadcast medium. 

     Although the FCC’s indecency definition has been upheld by the courts in its application to broadcasting, the standard has been plagued by continuing complaints that it is vague and uncertain.  These concerns were heightened when the U.S. Supreme Court invalidated use of the indecency standard because of its lack of precision when applied to the Internet.  Reno v. ACLU, 521 U.S. 821 (1997).      The FCC’s Policy Statement is a belated response to a settlement condition set forth in Evergreen Media, Inc. v. FCC, Civil No. 92 C 5600 (N.D. Ill. Feb. 22, 1994).  In February 1994, after a federal court said it would hear Evergreen’s constitutional challenge to the indecency standard over the government’s objection, the FCC quickly entered a settlement agreement dismissing its forfeiture order and promising to publish industry guidance within nine months.  Seven years later, the Commission released the April 6 Policy Statement.     The 19-page document restated the indecency standard and articulated the factors that the FCC considers in evaluating indecency complaints.  In particular, it noted that there are two fundamental determinations that must be made: whether (1) the material depicts or describes sexual or excretory organs or activities; and (2) the material is “patently offensive” as measured by a national standard for the broadcast medium.  In making this latter determination, the Commission stated that “the full context in which the material appeared is critically important.”

     The Policy Statement set forth a number of examples of enforcement actions and sought to analyze their outcomes based on: (1) the degree of explicitness; (2) whether the material “dwells” on sexual matters; and (3) whether the material is “pandering.”  However, the Commission pointed out that such “contextual determinations are necessarily highly fact-specific, making it difficult to catalog comprehensively all of the possible contextual factors that might exacerbate or mitigate the patent offensiveness of particular material.”  In other words, each case is decided based on its particular facts, and the Commission cannot articulate specifically what factors will distinguish one case from another.     Commissioner Gloria Tristani, who had advocated an aggressive approach toward indecency enforcement, dissented from the Policy Statement.  She wrote: “I am aware of no rush of inquiries by broadcast licensees seeking to learn whether their programs comply with our indecency caselaw.”  She expressed concern that “this Policy Statement will likely become a ‘how-to’ manual for those licensees who wish to tread the line drawn by our cases.”

     As it turned out, Commissioner Tristani had little reason to worry.  Within a few weeks of the Policy Statement, the Commission’s Enforcement Bureau issued two forfeiture orders for indecency violations that guaranteed broadcasters would be unable to decipher the FCC’s standard. 

     “Your Revolution.”  In the first of these decisions, the bureau issued a $7,000 Notice of Apparent Liability to noncommercial radio station KBOO-FM for the broadcast of a rap song entitled “Your Revolution.”  In the Matter of The KBOO Foundation, File No. EB-00-IHD-0079 (EB, rel. May 17, 2001).  The song, written and performed by award-winning poet and performance artist Sarah Jones, is a loose reworking of Gil Scott-Heron’s classic poem, “The Revolution Will Not Be Televised.” 

     According to Ms. Jones, “‘Your Revolution’ was written as a response to music on mainstream radio which often treats women as sex objects and play things.”  The song has been performed for junior high and high school students in educational programs coordinated through the New York City Board of Education.  Nevertheless, the bureau concluded that “Your Revolution” is indecent because it contains “unmistakably patently offensive sexual references.”       Although the Commission’s April 2001 Policy Statement described the context of a work as “critically important,” the bureau dismissed KBOO’s arguments that the sexual references in “Your Revolution” must be evaluated as contemporary social commentary.  It pointed out that “the Commission has rejected an approach to indecency that would hold that material is not per se indecent if the material has merit,” and concluded that the FCC “previously has found similar material to be indecent, and we see no basis for finding otherwise in this case.”       

     KBOO is seeking reconsideration of the Notice.  Meanwhile, Sarah Jones, the author/performer of “Your Revolution,” filed a declaratory judgment action in federal court seeking a determination that the work is not indecent and that the FCC’s decision violated her rights under the First and Fifth amendments.  Jones v. FCC, No. 01 Civ 0693 (DLC) (S.D.N.Y. filed Jan. 30, 2002).     “The Real Slim Shady.”  Shortly after the KBOO notice was issued, the Enforcement Bureau released another $7,000 Notice of Apparent Liability for the broadcast of a rap song.  In the Matter of Citadel Broadcasting Company, DA 01-1334 (EB, rel. June 1, 2001).  This time, the notice was issued to a Pueblo, Colo., commercial station for repeated broadcasts of the “radio edit” of the Eminem song “The Real Slim Shady.”

     Although the bureau acknowledged that the station played a version of the song “that omitted certain offensive language through the use of a muting device or overdubbed sound effect,” it found that “the licensee failed to purge a number of indecent references” and that even the edited version of the song “contains unmistakable offensive sexual references.”     On reconsideration, however, the bureau found that it had been mistaken about its previous “unmistakable” conclusions.  Upon review, it characterized the sexual references in the radio edit of “The Real Slim Shady” as “oblique,” and not “expressed in terms sufficiently explicit or graphic enough to be found patently offensive.”  As to the context of the song, the bureau concluded that the edited version did “not appear to pander to, or to be used to titillate or shock its audience.”  In the Matter of Citadel Broadcasting Company, DA 02-23 (EB, rel. Jan. 8, 2002).

     Despite the many mysteries of the FCC’s indecency policy, one thing seems certain -- the controversy will continue.  During 2001 and 2002 there was increasing pressure for expanded use of FCC enforcement authority. 

     Demands to extend the broadcast regulatory regimen to basic cable channels gained support from a content analysis issued by the Parents Television Council (PTC) in January 2002.  The analysis purported to show that original programming on basic cable channels is “raunchier” than broadcast network programming.  PTC, an offshoot of a conservative media watchdog group, has been prominent in the television sex and violence debates.  Its “celebrity advisory board” (PTC’s term) includes Sen. Joseph Lieberman (D-Conn.) and Sen. Sam Brownback (R-Kan.).  

     In February 2002, 15 conservative organizations headed by the American Family Association called on the FCC “to stop foot-dragging and begin enforcing” the indecency policy.  The Culture and Family Institute (an affiliate of Concerned Women for America) issued a report calling for congressional hearings and proposing a number of changes, including: (1) requiring broadcast stations to maintain recordings or transcripts of broadcasts to assist in evaluating indecency complaints; (2) passage of legislation to prohibit broadcasting indecent and violent programs when children are in the audience; and (3) extending indecency enforcement to basic cable channels.  See Martha Kleder, “The FCC: A failure of enforcement,” www.cultureandfamily.org/library/2002-01/cfi-23sr001.shtml.  Even the Washington Post’s media correspondent criticized the FCC for failing to enforce indecency complaints.  See Frank Ahrens, “The FCC’s earplug answer to indecency,” Washington Post, Feb. 20, 2001 at C1.

     Lobbying for stronger enforcement was not limited to those outside the FCC.  Commissioner Gloria Tristani, who made indecency enforcement a special priority before leaving the Commission, advocated requiring broadcasters to retain transcripts of programs to facilitate filing and supporting complaints to the FCC.  Her call to arms was taken up by Commissioner Michael Copps, another Democratic appointee, who has advocated the retention of program tapes as well. He had also asked the Commission’s Enforcement Bureau to investigate whether “The Victoria’s Secret Fashion Show,” which aired on ABC, violated the law.  However, the Commission dismissed viewer complaints about the program in March 2002, noting that the “sexual aspects of the material” failed to meet the definition of indecency.

     The activity in this area has not escaped the attention of Capitol Hill.  In late January 2002, Senate Appropriations Committee Chairman Robert Byrd (D-W. Va.) ordered the FCC to report on the “declining standards of broadcast television” and the impact on children.  The FCC also must explain what it is doing to reduce “objectionable programming.”

     In February 2002 the FCC released a Notice of Proposed Rulemaking seeking to simplify its processes for filing informal complaints against Commission licensees.  Establishment of Rules Governing Procedures To Be Followed When Informal Complaints Are Filed by Consumers Against Entities Regulated by the Commission, FCC 02-46 (rel. Feb. 28, 2002).  Although not directed toward indecency policies specifically, the proposed changes would apply the informal complaint process now used for common carriers to all other licensed services, including broadcasting.     The proposed rules would require broadcasters to respond to all informal complaints regarding assertedly indecent programs, the vast majority of which currently are dismissed by the FCC.  Most complaints are dismissed routinely for failure to provide sufficient information; because the offending program is aired in the “safe harbor” hours; because the program is on a cable channel rather than broadcast television; or because the complaint fails to set forth a prima facie case for indecency.  By shifting the burden of response in the case of such defective complaints, one of the Commission’s goals is to encourage “voluntary” action by the broadcaster, “e.g., a public apology for objectionable material.”     The Commission seeks comment on what types of information must be included in informal complaints against broadcasters but notes that it “is not feasible to speculate about specific types of information that may be required by the Commission staff in response to a complaint.”  Some have suggested that this procedure will require broadcasters to retain tapes of programs as a practical matter, in order to respond to complaints. 

     This view was lent some credence by the chief of the FCC’s Enforcement Bureau in remarks to the National Association of Broadcasters’ state leadership conference.  Bureau Chief David Solomon told the group: “If the station can’t refute information in the complaint, we’ll assume the complainant got it right.”  Bill McConnell, “New rules for risqué business,” Broadcasting & Cable, March 4, 2002 at 5.     An FCC presumption in favor of complaints over broadcast content and a de facto taping requirement could lead to a constitutional confrontation.  In 1978, the U.S. Court of Appeals for the District of Columbia Circuit invalidated a program taping requirement imposed on public broadcasters where the purpose of the requirement was to increase government oversight of programming content.  Pursuant to a congressional enactment, the FCC had required the recording and retention of all programs on noncommercial stations “which consist of talks, commentaries, discussions, speeches, editorials, political programs, documentaries, forums, panels, roundtables, and similar programs primarily concerning local, national, and international public affairs.”  Report and Order, Docket No. 19861, 57 F.C.C.2d 19, 21 & n.11 (1975).