Which of these resulted in station sanctions? A.Bono B.Cher C.Saving Private Ryan D.All of !$#$%&!

CLEAR AS MUD The FCC and the Regulation of Indecent Content CBI/CMA 2010 Greg Newton, Ohio University

Why restrict certain content? Harm - to children - justifies at least some restrictions –Help parents –Government acting in loco parentis Cyclical political issue First Amendment concerns—indecent and profane speech cannot be banned –Channeling (“safe harbor”)

Let’s start with the law United States Code Title 18, section 1464 prohibits obscene, indecent, or profane material in broadcasting The FCC defines “indecent” as: material that, in context, depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium.

How does the FCC decide if material is indecent? Indecency findings involve two fundamental determinations. –First, the material alleged to be indecent must fall within the subject matter scope of the FCC’s indecency definition—that is, the material must describe or depict sexual or excretory organs or activities. –Second, the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium. The FCC has articulated three primary factors that to be weighed in determining whether material is “patently offensive” –whether the description or depiction is explicit or graphic –whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs –whether the material appears to pander or is used to titillate or shock But it is unclear how those factors will be balanced in any case

Pacifica decision It is appropriate, in conclusion, to emphasize the narrowness of our holding.... We have not decided that an occasional expletive... would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution. The Commission's decision rested entirely on a nuisance rationale under which context is all- important. The concept requires consideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience, and differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant. As Mr. Justice Sutherland wrote, a "nuisance may be merely a right thing in the wrong place, - like a pig in the parlor instead of the barnyard."

Twenty-five years of pigs and parlors in two minutes : Zero indecency violations 1987: FCC revisits “context” –Double-entendre (Makin’ Bacon) –Sexually-oriented dramatic works –Howard Stern 1990s –D. C. Circuit upholds FCC enforcement authority, rejecting vagueness challenges, but overturns Congress’ attempt to impose a 24-hour ban –Several cases leave broadcasters confused, FCC issues “clarification” And then…

The world changed Bono and Cher drop F- bombs on awards show audiences in 2002 & 2003 (and were later followed by Paris & Nicole) Janet’s wardrobe malfunctions (with some help from Justin) during halftime of the 2004 Super Bowl

The Commissioners Versus The Enforcement Staff Enforcement Bureau review of the Bono complaint determined the NBC broadcast was not indecent –Not sexual in nature –Live broadcast –Fleeting, single instance PTC asks the Commission to reconsider In the meantime, the Super Bowl happens

Upon further review… The five commissioners hold the Golden Globes broadcast indecent –Reject every element of the staff review –Put broadcasters “on notice” about expanded definition of profane Are there other words that are “inherently” (always?) sexual or excretory? What other words might be actionably “profane”? Other contexts…news? Live sports?

Saving Private Ryan ABC had previously run the film, unedited, in primetime on Veteran’s Day in 2001 and 2002 Golden Globes case worries affiliates when the network schedules the film in November 2004 Slightly less than 2/3 air the program in primetime

Another reason it’s better to win an Oscar than a Golden Globe In rejecting complaints about the ABC broadcast, the FCC says Deleting all of such language or inserting milder language or bleeping sounds into the film would have altered the nature of the artistic work and diminished the power, realism and immediacy of the film experience for viewers. In short, the vulgar language here was not gratuitous and could not have been deleted without materially altering the broadcast. Should the Commission be making judgments about artistic merit?

The March 2006 Orders FCC clears out a backlog of indecency complaints…some rejected, some upheld, and some upheld but no punishment (because they were pre-2004) Two Billboard Music Awards shows (Cher, Hilton & Richie) The Early Show –A new word for the “inherently” list –Narrows news exception? The Blues: Godfathers & Sons –Findings of indecency will apply only when there’s a complaint, not to other stations airing the same program

Appeals Pending Fox (2 nd Circuit rehearing) CBS/Viacom (Super Bowl—3 rd Circuit) ABC (NYPD Blue—2 nd Circuit) Key issue in the Fox appeal: –First Amendment: Standards of enforcement Context… how does that affect analysis of a particular broadcast? Do licensees have sufficient notice of what would be actionable?

So… “Indecent” remains unclear No empirical evidence of “community standards” –Perceptions influence public complaints…lots of “mild” cussing in early prime time—but those words are not sanctionable –Cable v. broadcast…no audience distinction? –Basis for investigation: complaint –Basis for enforcement action: whose standard? Context? Profane words list?