FCC Hits Reset Button on Indecency

Scott R. Flick

Posted April 1, 2013

By Scott R. Flick

After nine months of rumors and uncertainty as to where the FCC is headed after last summer's indecency decision by the Supreme Court in FCC v. Fox Television Stations, Inc. (which we discussed in this post), the FCC today released a very brief public notice that:

  1. Announces the FCC staff has disposed of over one million indecency complaints (which it states is over 70% of those that were pending at the FCC), "principally by closing pending complaints that were beyond the statute of limitations or too stale to pursue, that involved cases outside FCC jurisdiction, that contained insufficient information, or that were foreclosed by settled precedent."
  2. Announces that the FCC will continue to actively investigate "egregious indecency cases."

  3. Announces that it is opening up a new docket (GN Docket No. 13-86), and is seeking comments from the public in that docket as to whether the FCC should change its broadcast indecency policies, and if so, how. While not limiting the breadth of potential changes, the FCC specifically asks whether it is time to go back to the old policy of prosecuting on-air expletives only where there is "deliberate and repetitive use in a patently offensive manner," or stick with the more recent policy of pouncing on a single fleeting expletive, the policy that led to the Supreme Court's 2012 decision. The Public Notice also asks if the FCC should treat "isolated (non-sexual) nudity the same or different than isolated expletives?"

  4. Finally, emphasizing again the broad nature of the FCC's proposed review, the Public Notice asks commenters "to address these issues as well as any other aspect of the Commission's substantive indecency policies."
The Public Notice indicates that comments will be due 30 days after the request for comments is published in the Federal Register, with reply comments being due 30 days after that.

While the timing of the Public Notice, just ahead of Chairman Genachowski's (and Commissioner McDowell's) announced departure from the FCC, is interesting, more interesting is the "spontaneous" look of the document. In an agency that can readily produce requests for comments that are hundreds of pages long, and on a subject that has produced reams of pleadings and precedent over several decades, the substantive portion of the Public Notice is but a few paragraphs long--a few paragraphs that open the door to a fundamental rethinking of the FCC's approach to indecency.

The Public Notice therefore has the look of a document that was not long in the making, and which may have emerged as result of a departing Chairman beginning to move the ball forward for his successor. The process forward will likely be complex and arduous, and the ultimate result is anyone's guess, but by at least launching the proceeding before his departure, Chairman Genachowski will absorb some of the political heat that could have otherwise fallen on his successor, while also challenging that successor to address an issue that has become a significant distraction and consumer of increasingly scarce FCC resources.

While also a result of its brevity, the lack of any "initial" or "tentative" conclusions by the FCC in the document gives the impression that the FCC may indeed be ready to commence a fundamental reexamination of indecency policy, and is not just going through the motions of collecting comments before proceeding on a largely predetermined route. It is not asking so much how it should proceed in light of the Supreme Court's decision, but how it should proceed in general. For those who loudly proclaim that the FCC has failed in its duties as a "content cop", as well as broadcasters struggling to figure out on a minute by minute basis what program content might cross the FCC's invisible indecency line, a fresh look at the issue will be welcome. Whether this "reset" can resolve the many tough questions surrounding indecency enforcement is, however, another question entirely.

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