Indecency Category

FCC Enforcement Monitor

Paul A. Cicelski Carly A. Deckelboim

Posted April 30, 2014

By Paul A. Cicelski and Carly A. Deckelboim

April 2014

Pillsbury's communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month's issue includes:

  • FCC Proposes $12,000 in Fines for Contest Violations
  • $20,000 Fine for Unlicensed Operation and Interference
  • Violations of Sponsorship Identification and Indecency Rules Lead to $15,000 Consent Decree

Changing Rules and Delay in Conducting Contest Lead to $12,000 in Fines

Late last month, the FCC's Enforcement Bureau issued two essentially identical Notices of Apparent Liability for Forfeiture ("NALs") against two radio station licensees for failure to conduct a contest as advertised. Although the stations have different licensees, one licensee provided programming to the second licensee's station through a time brokerage agreement. The brokering station's response to a letter of inquiry ("LOI") addressed both licensees' actions with regard to the contest. In the subsequent NALs, the FCC's Enforcement Bureau proposed a $4,000 fine against the brokered licensee and an $8,000 fine against the brokering licensee.

In July of 2009, the FCC received a complaint that several radio stations held a weekly contest called "Par 3 Shoot Out" but did not conduct the contest substantially as announced or advertised. Specifically, the complaint maintained that at least one participant did not receive a promised prize of a golf hat and was not entered into a drawing to win a car or other prizes (as was promised in the contest's rules). About four months later, the FCC issued an LOI to the licensee conducting the contest about the claims made in the complaint. In its response to the LOI, the licensee conducting the contest indicated that the contest consisted of two phases. The first was an 18-week, online golf competition where the highest-scoring contestant each week would win a hat from a golf club. Each weekly winner and one write-in contestant would be able to participate in the second phase of the contest, a real golf competition consisting of taking one shot at a three par hole. As was publicized online, the prize for the winner of the second phase was a $350 golf store gift certificate, and if anyone hit a hole-in-one, they would win a Lexus car.

According to the brokering licensee, the first phase of the contest took place between June and November 2008. The contest took place entirely online, and although the second phase was scheduled to begin in November 2008, it was postponed due to inclement weather and ultimately did not occur at all because the employee who was tasked with running the live golf competition was fired, and the remaining staff never resumed the contest. The brokering licensee further indicated that it forgot about the contest until it received the FCC's LOI, and, after receiving the LOI, the second phase of the contest occurred and was completed by January 2010. The brokering licensee indicated that it had provided additional prizes of a $25 golf store gift card and a catered lunch to each finalist in the second phase given the delay in conducting the contest.

Section 73.1216 of the FCC's Rules requires that a station-sponsored contest be conducted "substantially as announced or advertised" and must fully and accurately disclose the "material terms," including eligibility restrictions, methods of selecting winners, and the extent, nature and value of prizes involved in a contest.

The Enforcement Bureau determined that the contest was not conducted as announced or advertised because the rules were changed during the course of the contest and the contest was not conducted within the promised time frame. The Bureau further found that the licensees failed to fully disclose the material terms of the contest as required by the Commission's rules. According to the Bureau, the on-air announcements broadcast by the stations failed to mention all of the prizes the licensee planned to award and failed to describe any of the procedures regarding how prizes would be awarded or how the winners would be picked. The brokering licensee argued in its response to the LOI that the full rules were included online, which was a better way to make sure that potential contest participants were not confused. However, the Bureau found that while licensees can supplement broadcast announcements with online rules, online announcements are not a substitute for on-air announcements.

The base fine for failure to conduct a contest as announced is $4,000. The Bureau determined that, contrary to the argument presented in response to the LOI, "neither negligence nor inadvertence" due to the overseeing employee's departure "can absolve licensees of liability." The Bureau also said that providing additional prizes to make up for the delay does not overcome the violation of Section 73.1216. Finally, the FCC found that the licensees had failed to disclose the material terms of the contest because the advertisements that were broadcast over the air did not mention certain prizes.

The FCC proposed to impose the base fine amount of $4,000 against the time-brokered station after determining that the licensee had violated Section 73.1216. For the brokering licensee, the FCC proposed an increased fine of $8,000 because of the licensee's "pattern of violative conduct, and because it conducted the Contest over four stations, not one, thus posing harm to a larger audience."

Nine Years of Unauthorized Operation and Interference to Wireless Operator Lead to Large Fine

The FCC recently issued a Forfeiture Order to the former licensee of a Private Land Mobile Radio Service ("PLMRS") station. The Forfeiture Order follows an NAL that the FCC released in July of 2012 proposing a fine of $20,000 for the former licensee of the facility for operating without a license for nine years and causing interference to another wireless service provider.

The former licensee initially received the license for the PLMRS station in April 1997 for a five-year term. Three months before the expiration of the license, the FCC sent the licensee a reminder to renew the license, but the licensee never filed a renewal application. Therefore, the license expired in April of 2002. Nevertheless, the licensee continued operating the station, and on July 31, 2011, filed a request for Special Temporary Authority ("STA") with the Wireless Telecommunications Bureau of the FCC. The licensee stated in the application that it had recently discovered that its license had expired and that it needed an STA to continue operating the station. The Wireless Bureau granted the STA three days later for a period of six months, until the end of January 2012.

Continue reading "FCC Enforcement Monitor"


FCC Enforcement Monitor

Scott R. Flick Paul A. Cicelski

Posted November 26, 2013

By Scott R. Flick and Paul A. Cicelski

November 2013

Pillsbury's communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month's issue includes:

  • Multiple Indecency Complaints Result in $110,000 Payment
  • $42,000 in Fines for Excessive Power, Wrong Directional Patterns and Incomplete Public Inspection Files
  • Cable Operator Fined $25,000 for Children's Programming Reports

Broadcaster Enters Into $110,000 Consent Decree Involving Allegations of Indecent Material

The FCC recently approved a consent decree involving a broadcaster with TV stations in California, Utah and Texas accused of airing indecent and profane content.

Section 73.3999 of the FCC's Rules prohibits radio and television stations from broadcasting obscene material at all times and prohibits indecent material aired between 6:00 a.m. and 10:00 p.m.

The FCC received multiple complaints about the television show in question and sent Letters of Inquiry to the broadcaster asking it to provide a copy of the program and to answer questions about possible violations of the FCC's indecency rule. The licensee complied with the requests but maintained that the program did not contain indecent content.

Earlier this month, the FCC entered into a consent decree with the broadcaster and agreed to terminate its investigation and dismiss the pending indecency complaints. Under the terms of the consent decree, the broadcaster is required to (a) designate a Compliance Officer within 30 days, and (b) create and implement a company-wide Compliance Plan within 60 days, which must include: (i) creating operating procedures to ensure compliance with the FCC's restrictions on indecency, (ii) drafting a Compliance Manual, (iii) training employees about what constitutes indecent content, and (iv) reporting noncompliance to the FCC within 30 days of discovering any violations. The consent decree also requires the filing of a compliance report with the FCC in 90 days and annually thereafter for a period of 3 years. The requirements imposed under the consent decree expire after three years.

Continue reading "FCC Enforcement Monitor"


FCC Grants Extension of Indecency Comment Deadlines

Paul A. Cicelski

Posted May 10, 2013

By Paul A. Cicelski

A few minutes ago, the FCC issued a Public Notice granting a thirty-day extension of the deadlines for submitting comments and reply comments in response to the FCC's April 1, 2013 Public Notice seeking input on whether the Commission should make changes to its current broadcast indecency policies. Comments and reply comments were originally due on May 20 and June 18, 2013, respectively, but have now been extended to June 19, 2013 (comments) and July 18, 2013 (reply comments). The extension was granted in response to a Motion filed by the National Association of Broadcasters on April 26, 2013.

Scott Flick of our office posted a detailed analysis of the Public Notice early last month. To refresh your memory, the Public Notice (jointly released by the FCC's Enforcement Bureau and General Counsel's Office) was issued in response to FCC Chairman Genachowski's request that FCC staff review the "Commission's broadcast indecency policies and enforcement to ensure they are fully consistent with vital First Amendment principles."

With respect to guidance for parties planning to file comments, the quoted language below from the Public Notice describes the matters on which the FCC is seeking comment:

  1. [W]hether the full Commission should ... treat isolated expletives in a manner consistent with our decision in Pacifica Foundation, Inc., Memorandum Opinion and Order, 2 FCC Rcd 2698, 2699 (1987) ("If a complaint focuses solely on the use of expletives, we believe that . . . deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.")?
  2. Should the Commission instead maintain the approach to isolated expletives set forth in its decision in Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program, Memorandum Opinion and Order, 19 FCC Rcd 4975 (2004)?
  3. As another example, should the Commission treat isolated (non-sexual) nudity the same as or differently than isolated expletives?

The Public Notice also states that parties are invited "to address these issues as well as any other aspect of the Commission's substantive indecency policies." As Scott pointed out in his analysis last month, this final question appears to open the door to a broader review of indecency doctrine than the FCC has engaged in for quite some time.

Given the controversy the FCC's indecency policies have historically generated, you can expect to see plenty of comments filed on June 19 and reply comments on July 18 by parties on all sides of this issue. As the FCC moves toward new leadership with the departure of Chairman Genachowski, the FCC's indecency enforcement policies could take some interesting turns.


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.


Supreme Court Kicks the Indecency Can Down the Road

Scott R. Flick

Posted June 21, 2012

By Scott R. Flick

In a unanimous decision, the U.S. Supreme Court today ruled that it would like to have as little to do with the FCC's broadcast indecency policy as possible. Rather than the momentous ruling on the constitutional future of broadcast indecency enforcement that advocates on all sides of the issue had hoped for, the mighty sound of the Court punting on the constitutional issue reverberated throughout Washington this morning.

Faced with a pair of Second Circuit decisions finding the FCC's indecency policy to be unconstitutionally vague and therefore chilling to broadcast speech, the Court ruled in an 8-0 vote that the FCC had failed to give adequate notice to Fox and ABC at the time of their assertedly indecent broadcasts that the FCC was going to start finding "fleeting indecencies" (verbal or visual) actionable and therefore subject to fines and other sanctions. As a result, the FCC rulings against both Fox and ABC were overturned by the Court. Having made that decision on the narrow grounds of "lack of notice", the Court concluded that it had no need to go further and delve into the constitutionality of the FCC's indecency enforcement.

On a pragmatic level, the Court's ruling seems to indicate that the appropriate "notice" on fleeting indecencies didn't occur until the FCC announced its decision to begin prosecuting such indecencies in a 2004 case involving NBC and the Golden Globes Awards. As a result, broadcast stations facing indecency complaints (and delayed license renewals) for allegations of fleeting indecency should see those complaints dismissed by the FCC as long as the program at issue aired before the 2004 Golden Globes decision. Unfortunately, stations facing indecency complaints for programs aired after that 2004 decision may find that today's Court ruling is irrelevant to them.

In fact, the Court went out of its way to make clear that it was not ruling on any issue but the "vagueness" in the FCC's treatment of fleeting indecencies caused by the lack of notice of its change in enforcement policy. Despite noting that the FCC's Golden Globes decision amounted to a change in the FCC's indecency policy, the Court wrote that "it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and subsequent adjudications." The decision takes the extra step of stating that "this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. And it leaved the courts free to review the current policy or any modified policy in light of its content and application."

The Court's ruling therefore appears to be little more than a "reset" in which, with the limited exception of parties accused of airing fleeting indecency prior to 2004, broadcast stations find themselves in the exact same position as before this litigation started many years ago: unsure as to what content is or is not permissible, and with no additional guidance from the courts as to where the FCC may permissibly draw that line.

While, as I noted in an earlier post, the Supreme Court will usually avoid making a constitutional ruling if it can decide a case on other grounds, the Court's hesitance to step into this fray is striking. Rather than eliminating the chilling effect on First Amendment speech by providing clarity as to what the FCC can constitutionally demand of broadcasters, the Court actually increased the chilling effect. Airing anything that a single member of the public might allege is indecent can lead to:

1. a prolonged indecency investigation by the FCC;

2. withholding of FCC action on a station's license renewal application while the investigation proceeds;

3. withholding of FCC action on any application to sell or transfer that station; and

4. large fines, short-term renewals, and other FCC sanctions.

On top of all that, the Court has now undeniably added another contributor to the chilling effect:

5. years of expensive litigation to demonstrate that the FCC's actions in sanctioning a station for indecency were administratively or constitutionally improper.

With all these chilling factors, only a foolhardy broadcaster would air content that could subject it to this process, even if it knew from the beginning that it would ultimately win in court. That is the very definition of an impermissible chilling effect upon First Amendment speech. The Second Circuit decisions leading to today's decision clearly recognized that impact, and Justice Ginsburg's Concurrence to today's decision recognizes it as well. While agreeing with the Majority that Fox and ABC were not given adequate notice of the FCC's changing indecency standard, her Concurrence goes on to note that Pacifica, the Supreme Court's original 1978 decision upholding the FCC's indecency policy, "was wrong when it issued. Time, technological advances, and the Commission's untenable rulings in the cases now before the Court show why Pacifica bears reconsideration."

Unfortunately, by putting that decision off until another day, the Court leaves the waters of FCC indecency enforcement as murky (and chilling) as ever. Given that the FCC now has a backlog of 1.5 million indecency complaints involving 9700 programs--a backlog that was left pending while the FCC awaited guidance from the Court--the Court's unwillingness in today's decision to engage on the real issue before it is bad for the FCC, bad for broadcasters, and bad for viewers and listeners.


Oral Arguments Bring Supreme Court's Indecency Case into Focus

Paul A. Cicelski

Posted January 10, 2012

By Paul A. Cicelski

Having just returned from watching oral arguments at the Supreme Court in the highly anticipated case Federal Communications Commission v. Fox Television Stations, I can tell you that the case is living up to its billing as one of the more interesting matters before the Court. In it, the Court will finally have the opportunity to address the constitutionality of the FCC's current interpretation of its indecency restrictions on television and radio stations. Specifically, the Court is considering whether the Second Circuit was correct in deciding that the FCC's indecency ban is unconstitutional because it violates the First Amendment by being so vague and amorphous as to deprive broadcasters of clear notice as to what is and isn't permissible.

The underpinnings of the FCC's indecency regulation come from the now-famous George Carlin (RIP) "Seven Dirty Words" monologue. During the monologue, Carlin used, among other words, the "F-word" and the "S-word" repeatedly, and verbally presented a number of sexual and excretory images. The monologue was aired by a radio station, a complaint was filed, and the FCC ultimately determined that the broadcast was prohibited indecency. The case eventually found its way to the Supreme Court as the 1978 Pacifica case where, in a narrow 5-4 ruling, the FCC's indecency finding survived a First Amendment challenge. The Court stated that the FCC's decision was constitutional largely because "broadcasting is uniquely accessible to children."

For 25 or so years following the Pacifica case, the FCC exercised a light touch in enforcing its indecency ban, as evidenced by its statement that "speech that is indecent must involve more than an isolated use of an offensive word." However, in 2004, the FCC changed its longstanding policy on the use of isolated expletives, finding that a broadcast could be indecent even when the use of an expletive was not repeated or a literal description of sexual activities was not included.

As previously discussed by Scott Flick here and here, the FCC's effort to expand the definition of actionable indecency is at the heart of the case now before the Supreme Court. That case involves three separate incidents that were broadcast on TV between 2002 and 2003, each of which were found to be indecent by the FCC. The first two, the "fleeting expletives" incidents, occurred on Fox during the Billboard Music Awards when Cher used the "F-word", and then Nicole Richie used the "S-word" and "F-word" a year later on the same program.

The third broadcast at the center of the case involved a 2003 ABC broadcast of an episode of NYPD Blue that included the display of a woman's buttocks. In both the Fox and ABC cases, the Second Circuit concluded that the FCC's current indecency enforcement policy is "unconstitutional because it is impermissibly vague" since broadcasters do not have fair notice of "what is prohibited so that [they] may act accordingly."

During today's oral arguments, there was a great deal of lively banter between the Justices and the attorneys on both sides of the debate. The U.S. Solicitor General, on behalf of the government, argued that broadcast stations must comply with the FCC's indecency regulations as the price of holding a broadcast license and the privilege of "free and exclusive use of public spectrum." Justice Kagan noted, however, that the government's "contract theory" can only go so far when it comes to the First Amendment.

In response to the Solicitor General's claim that television today is as pervasive as it has ever been, Justice Ginsburg pointed out that the major complaint the broadcasters have is that the "censor" here, the FCC, can act arbitrarily by saying it is okay to broadcast otherwise indecent language or scenes during Schindler's List or Saving Private Ryan, but that it is not OK to air such material during an episode of NYPD Blue. Later, Justice Kagan joked that it seems like nobody "can use dirty words except for Steven Spielberg." While intended as a joke, the Justice would likely not be surprised that communications lawyers do indeed refer to the "Spielberg exception" in reviewing content before it airs.

In challenging the FCC's regulations, counsel for the broadcasters noted that the FCC's indecency policies had been working fine until the FCC "wildly changed their approach" in 2004 and that the current context-based approach is impermissibly vague. Of particular interest given that the pending cases all involve television broadcasts, when Justice Alito asked whether the broadcasters would accept the Supreme Court overruling Pacifica for purposes of television only and not for radio, the response in the courtroom appeared to be "yes". Both Chief Justice Roberts and Justice Scalia appeared skeptical of the broadcasters' arguments, with Chief Justice Roberts stating that "we, the government" only want to regulate "a few channels" and Justice Scalia remarking that the "government can require a modicum of values".

While you can only read so much into oral arguments, the huge crowd and the media circus I saw when leaving the Supreme Court underscore the interest in, and the importance of, the Court's ultimate decision in this case. Aside from the fact that Justice Sotamayor is recused from the case, and two Justices that voted against the FCC at an earlier stage of the case have since left the Court, the drama in this case has been dramatically increased given the strange bedfellows it could create among liberal and conservative Justices on the Court. Given that Justice Thomas is on record as criticizing the "deep intrusion in the First Amendment right of broadcasters" created by the FCC's indecency policies, it is not out of the realm of possibility to see Justice Thomas siding with Justices Breyer, Ginsburg, and Kagan (and maybe even Justice Kennedy) in finding that the FCC's indecency policy is unconstitutional.

However, that result is hardly a given. We have no idea how Justice Kagan will rule given her short time on the Court, nor do we know yet whether Chief Justice Robert's antipathy towards governmental paternalism -- evidenced in the Court's decision this past summer overturning a California law prohibiting the sale of violent video games to minors -- might find voice in this case as well. While many issues polarize people based upon their political perspective, fans of the First Amendment tend to be found all along the political spectrum. How the case is framed is therefore critically important. Is this a case about protecting children from ostensibly harmful content, or is this a case about making broadcast television fit only for children during the hours when most adults watch it? On a less philosophical and more pragmatic level, what are the First Amendment implications of making broadcasters have to guess what content the government will conclude is inappropriate for their audiences? Broadcasters are hoping the the Court's decision in this case will bring an end to those guessing games.


The FCC Makes Its Indecency Case at the Supreme Court, But Has the Court Already Shown Its Cards?

Scott R. Flick

Posted September 7, 2011

By Scott R. Flick

The FCC today filed its Brief at the U.S. Supreme Court defending its actions against Fox and ABC programming it found to be indecent. In the case of Fox, the alleged indecency was celebrity expletives uttered during the 2002 and 2003 Billboard Music Awards, while ABC was fined for rear nudity shown during an episode of NYPD Blue. As I wrote earlier, the fact that the Court is reviewing such disparate forms of indecency (fleeting expletives during live programming versus nudity during scripted programming) increases the likelihood of a broader ruling by the court regarding indecency policy, as opposed to a decision limited to the very specific facts of these two cases.

When the Supreme Court was contemplating whether to hear the FCC's appeal of the lower court decisions, some broadcasters urged the Court to look beyond these particular cases and rule on the continued viability of Red Lion. The Red Lion case is a 1969 decision in which the Supreme Court ruled that it was constitutional to limit broadcasters' First Amendment rights based upon the scarcity of broadcast spectrum. The logic behind Red Lion was that since there isn't enough spectrum available for everyone to have their own broadcast station, those fortunate enough to get a broadcast license must accept government restrictions on its use. Red Lion is the basis for many of the FCC regulations imposed on broadcasters, but the FCC's indecency policy is Red Lion's most obvious offspring.

While Red Lion is the elephant in the room in any case involving broadcasters' First Amendment rights, its emergence in the Fox/ABC case was particularly unsurprising. In an earlier stage of the Fox proceeding, the Supreme Court reversed a lower court ruling that the FCC's indecency enforcement was an arbitrary and capricious violation of the Administrative Procedure Act. The Court's decision was not, however, a show of unanimity. The 5-4 decision included a main opinion from Justice Scalia, but also two concurrences and three dissents. The most interesting aspect of the fractured decision came from Justice Thomas, who joined the majority in finding that the FCC had not violated the Administrative Procedure Act, but who also noted the "deep intrusion into the First Amendment rights of broadcasters" and questioned whether Red Lion was still viable in the Internet age.

It is certainly true that much of the logic supporting Red Lion has been undercut by a changing world. There are now far more broadcast stations than newspapers, but no one argues that the scarcity of newspapers justifies limiting their First Amendment rights. Similarly, the Internet has given those seeking not just a local audience, but a national or even international audience a very low cost alternative for reaching those audiences. While broadcast stations may still be the best way of reaching large local audiences, they are no longer the only way.

These are just a few of the many changes occurring since 1969 that weaken the foundation of Red Lion. If you put two communications lawyers in a room and give them five minutes, they will be able to generate at least a dozen other reasons why Red Lion's day has passed. Try this at your next cocktail party. It's far better than charades and communications lawyers need to get out more anyway.

It is therefore not surprising that broadcasters accepted Justice Thomas's invitation and urged the Court to reconsider Red Lion in evaluating the constitutionality of indecency regulation. What is interesting, however, is that when the Court agreed to review the lower court decisions, it explicitly limited its review to the constitutionality of the FCC's indecency policy, and declined to consider the broader questions raised by Justice Thomas with regard to Red Lion.

While some saw that as a defeat for broadcasters, I am inclined to think it was something else entirely. Although the composition of the Court has changed a bit since 2009, it is worth noting that four justices questioned the FCC's indecency policy then, and a fifth justice explicitly questioned Red Lion, the very foundation of that policy. Given that it only takes the votes of four justices for the Court to agree to hear an appeal, the exclusion of Red Lion from that review is curious, and it is certainly possible that Justice Thomas is alone in his concern about the continued viability of Red Lion.

More likely, however, is that the Court is adhering to its long-held doctrine of keeping decisions as narrow as possible when addressing the constitutionality of a particular law or regulation. If that is the case, then the justices may well have concluded that the FCC's indecency policy, at least in its current form, cannot survive constitutional review, and that there is no need to consider the broader issue of whether the government has any viable basis for regulating broadcasters and broadcast content. Stated differently, If the Court was inclined to uphold the constitutionality of the FCC's indecency policy, an assessment of the continued viability of Red Lion would be critical to that decision, since a constitutional policy for which the government lacks a constitutional basis to impose on broadcasters is still unconstitutional.

While it is always a risky endeavor to attempt to "read" the Court, the entire basis of indecency policy is to protect children from content the government finds unsuitable for them. It is therefore telling that on the very day the Court agreed to hear the FCC's appeal, it also released a decision overturning a California law prohibiting the sale of violent video games to minors, finding in a 7-2 decision that the law infringed upon the First Amendment, regardless of its intent to protect children. That decision makes clear that the Court will not merely accept "protecting children" as a valid basis for limiting First Amendment activities.

Of course, the California ban on sales of violent video games to minors affected only minors, whereas the FCC's restriction on indecency limits the broadcast content that everyone--adults and minors alike--can access from 6am-10pm every day (the hours during which indecent broadcast content is prohibited). That fact, combined with the reality that there is far more "First Amendment" speech (political and otherwise) on radio and television than in most video games, means that the FCC may have a tough job convincing the Court that the FCC's indecency policy can coexist with the First Amendment.


The Supreme Court Joins the Indecency Battle

Scott R. Flick

Posted June 27, 2011

By Scott R. Flick

As I wrote in April, the FCC decided after much delay to ask the U.S. Supreme Court to review a pair of lower court rulings seriously challenging the FCC's prohibition on indecent programming that airs before 10pm. Today the Supreme Court announced that it has agreed to hear the matter, setting up what could be the most important broadcast content case in decades.

The lower court decisions being challenged by the FCC involve the unintentional airing of isolated expletives on Fox during live awards programs, and an episode of NYPD Blue on ABC that showed a woman's buttocks (the FCC-approved term for that part of the anatomy). That the underlying facts of these cases are so different (an accidental expletive on live TV versus scripted nudity in a dramatic program) increases the likelihood of a relatively broad indecency decision by the Court, as opposed to a narrow finding that the FCC was or wasn't justified in pursuing a particular case based on the facts of that case.

The Court could ultimately support the government's general right to police indecency while finding fault with the FCC's current interpretation of how that should be done. However, the elephant in the room is whether it still makes sense for the government to assert that broadcasters have lesser First Amendment rights than all other media. The implications of the Court finding that broadcasters, a major source of news and information for most Americans, have First Amendment rights equivalent to newspapers would create regulatory ripples far beyond indecency policy. For that reason, the Court will likely think long and hard before making such a sweeping pronouncement.

Still, it is increasingly true that most audiences in the U.S. have ceased to draw a distinction between, for example, broadcast channels and cable/satellite channels. As they flip through the growing number of programming channels on their flat screen TVs, or increasingly watch Internet content over those same TVs, the government's case for regulating the content of a small number of those channels grows more tenuous. The Supreme Court will now tell us whether it has grown too tenuous to continue.


The FCC Takes Its Indecency Case to the Supreme Court, But Without Enthusiasm

Scott R. Flick

Posted April 21, 2011

By Scott R. Flick

Caught between a rock and the Second Circuit, the FCC hesitantly took the defense of its indecency policy to the Supreme Court today. The FCC filed a petition seeking the Court's review of the Second Circuit's decisions in indecency cases involving Fox and ABC programs. Last year, the Second Circuit found the FCC's interpretation of indecency to be arbitrary and capricious. On appeal, the Supreme Court disagreed, and lobbed this perennial hot potato back over the net to the Second Circuit for an assessment of the constitutionality of the FCC's indecency policy.

Whether intentional or not, the Supreme Court's return of the matter to the Second Circuit was the legal equivalent of a high lob, and the Second Circuit enthusiastically slammed the ball back across the net, ruling that the FCC's current indecency policy is unconstitutionally vague. In light of its earlier ruling, the Second Circuit's conclusion was hardly a surprise. More curious, however, was the government's reaction to it. Rather than again storming to the Supreme Court to defend its indecency policy, the FCC first asked the Second Circuit to reconsider its decision (a request that was denied in November 2010), and then sought not one, but two extensions of the deadline for requesting Supreme Court review.

The FCC waited until the end of even that extended period before seeking joint review of the Fox and ABC decisions (the deadline for the Fox decision was today, while the FCC actually had until May 4th to seek review of the ABC decision). In asking that the cases be considered together, the FCC is making the calculation that "scripted nudity" in ABC's NYPD Blue presents a more compelling case for government regulation than the Fox case, where the agency concluded that fleeting expletives (during the Billboard Music Awards) were a form of actionable indecency despite years of precedent to the contrary. That new interpretation, which the FCC first announced with regard to an NBC broadcast of the Golden Globe Awards, gave everyone (including FCC staff) a case of regulatory whiplash, whereas the FCC's ongoing, if erratic, feud with broadcast nudity was hardly a surprise (and therefore less controversial).

The government's hesitance to bring all of this to the Supreme Court's doorstep a second time is even more curious after reading the petition, which bluntly states that "The court of appeals has effectively suspended the Commission's ability to fulfill its statutory indecency enforcement responsibilities unless and until the agency can adopt a new policy that surmounts the court of appeals' vagueness rulings." The petition then suggests that no functional indecency policy could overcome that hurdle. It is therefore apparent that the FCC's delay in bringing the challenge (which to be fair, necessarily involves getting the Department of Justice on board) is not the result of any belief that the agency might have been able to "live with" or "work around" the Second Circuit's ruling by revising its policy. There is clearly something else at work here.

From a legal perspective, the FCC's petition is well written. However, in reading through it, you can't avoid the impression that even the FCC is trying to convince itself that the technological and cultural shifts of the last decade or two have not rendered the notion of government second-guessing broadcast content an anachronism. In particular, it is hard to escape the irony of the FCC seeking to bring high speed Internet into every home by reallocating broadcast spectrum based on the argument that only 10% of Americans are viewing over-the-air television. If true, then the government is expending a lot of effort to control what that 10% sees on their televisions, while racing to use those airwaves to bring these same households the wonders of the Internet--including all of that content that they aren't allowed to see on their TV's.

The convergence of distribution technologies is upon us, and whether that claimed 10% of households uses their TV's V-Chip, or an Internet software filter on their computer, to prevent unwelcome content from entering their home, the result is hardly different. The FCC's sudden shyness in defending its indecency policy suggests that it is concerned that the Supreme Court may note that incongruity as well.


A Look Ahead at 2011 Reveals an Interesting Year for Retrans, Renewals, and Indecency

Scott R. Flick

Posted December 29, 2010

By Scott R. Flick

Earlier this month we posted our 2011 Broadcasters Calendar on CommLawCenter as well as on our Pillsbury web page. We have been annually publishing the Broadcasters Calendar, which contains much information regarding broadcast station deadlines and legal requirements, for as long as I can recall. It has always been one of our most popular publications, and I usually get calls beginning in early November asking when next year's calendar will be available. The "easy to read" pdf version of the Calendar can be found here, and a text-searchable version is available here.

Even a brief review of the 2011 Broadcasters Calendar reminds us that 2011 will be a busy year for not just broadcasters, but for cable and satellite operators as well. October 1, 2011 is the deadline by which broadcasters qualifying for must-carry need to notify cable and satellite operators of their election between must-carry status and retransmission consent. Recent retransmission disputes once again remind us that retransmission negotiations and their associated revenue are critical to the future of broadcast television. However, the sheer volume of negotiations and carriage disputes likely to occur following the October 1 election deadline will almost certainly make this holiday season look tranquil by comparison.

Adding to the action will be continued efforts by the cable and satellite industries to draw Congress and the FCC into the fray, introducing legislative and regulatory uncertainties into an already complex negotiation process. Their chances for success will depend greatly upon how much disruption in carriage of broadcast programming occurs in 2011, and the public's perception of who is at fault for that disruption. Regardless of the outcome of this particular Washington confrontation, look for 2011 to be the year where economics force cable and satellite providers to more tightly link the number of viewers a program service attracts with the amount they agree to pay for that service. Overpaying for niche cable networks that don't pull in large numbers of viewers is so "last decade".

2011 also marks the beginning of the FCC's next eight-year license renewal cycle, with radio stations in DC, Maryland, Virginia, and West Virginia starting pre-filing announcements in April for their upcoming license renewal applications. The filing cycle will continue state by state until it concludes with television stations in Delaware and Pennsylvania running their last post-filing announcements on June 16, 2015.

However, many stations haven't had their last license renewal application granted because of indecency complaints still pending against them. The FCC has pretty much ceased processing indecency complaints while it awaits guidance from the courts as to whether it can legally enforce the prohibition on broadcast indecency, and if so, how it will be allowed to do that. I have been told that there are literally hundreds of thousands of indecency complaints now pending at the FCC, so unless the courts do the FCC the favor of finding the prohibition on indecency completely unconstitutional, it will take the FCC years to sift through these complaints in an effort to apply any refined indecency standard announced by the Supreme Court.

It is therefore reasonable to predict that indecency complaints will continue to play a large role in the processing of upcoming license renewal applications. 2011 will hopefully be the year when the courts tell us exactly how large (or small) that role will be. If the prohibition on indecency survives this latest round of judicial scrutiny, broadcasters and the FCC can expect a lot of complaint investigations and litigation as both struggle with where the line on content is being drawn.

Of course there are numerous other events that will contribute to 2011 being one of the busiest years in memory for broadcasters. A rebounding economy is slowly lifting most boats in the broadcast industry, with the obvious exception being those that burned their critical assets for fuel during the lean times, and don't have much boat left.

With a growing amount of money to fight over, the fights will begin in earnest (see "Retrans" above). Negotiations between the NAB and the recording industry over performance royalties will continue, and "performance tax" legislation will again rise in Congress with the same certainty that the slasher in a horror film returns for unending sequels.

Broadcasters and the FCC will also be implementing the latest generation of the Emergency Alert System in 2011, and the FCC will continue its efforts to repurpose broadcast spectrum for mobile broadband use, leading to new rules permitting multiple broadcasters to share a single channel, and potentially to legislation allowing participating broadcasters to share in the proceeds of broadband spectrum auctions. As with most of the items discussed above, there is both opportunity and peril for broadcasters here, and those that are inattentive risk missing the former and being battered by the latter.

Yes, 2011 will be a very busy year.


Indecency Ruling Changes the Game

Posted July 13, 2010

By Scott R. Flick

In light of today's decision by the US Court of Appeals for the Second Circuit invalidating the FCC's indecency policy, it would be hard to justify writing about anything else. From my first days as a young lawyer screening programs before they were aired (I still remember assessing the legalities of airing a live satellite feed of "Carnaval" from Rio) to defending stations accused of airing indecent programming in FCC enforcement actions, the FCC's indecency policy has been an ever-present, ever-broadening part of the practice. While the definition of indecency has remained largely constant ("language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities"), its interpretation has always been a moving target.

When the Supreme Court originally found that requiring indecent content to be channeled into late-night hours was constitutional, it did so based upon a narrow view of what qualified as indecent content (basically George Carlin's "Seven Dirty Words" routine) and the assurance of the FCC that restrained enforcement would protect First Amendment concerns. Over the next twenty years or so, broadcasters programmed accordingly, and with a few exceptions, broadcasters and the FCC learned to coexist on the issue of indecency.

However, the rise of cable television placed immense pressure on both television and radio broadcasters to more precisely map the boundary between "decent" and "indecent" content. While most broadcasters remained determined to stay on the "decent" side of that line, they could no longer afford to remain at such a safe distance from that line as to be deemed "fogey programming" by a generation of consumers that did not distinguish between broadcast programming and cable programming. To these viewers, all channels are equal, and whether programming arrives by cable, satellite, or antenna is beside the point. To reach this audience, many programmers struggled mightily to make their programming more edgy and relevant to young adults. This programming stayed clear of Carlin's seven dirty words, and focused more on situation and entendre to engage its audience.

In response, the FCC stepped onto a slippery slope, seeking to broaden its interpretation of indecency by expanding its view of what constitutes "patently offensive" material. The FCC was not prepared for the mission it undertook. What at first appeared to be a slippery slope of line drawing quickly became a well-greased plunge into the abyss of eternal peril. Those filing complaints at the FCC often urged the agency, as a practical matter, to forget that indecency must be patently offensive and instead sought action against content that was merely offensive to the complainant. The result has been a gut-wrenching high speed slalom down the slippery slope, resulting in the FCC's headfirst encounter today with the large oak doors of the Second Circuit's courtroom.

Although the court based today's ruling on a finding that the FCC's interpretation of indecency is impermissibly vague, and therefore chilling of protected speech, the problem actually goes far deeper than that. Some of the greatest damage to free speech has resulted from complaints where just about everyone, including the FCC, would agree that indecency is not present. While baseless complaints were once met with a prompt and pleasant FCC letter notifying the complainant that the subject of their complaint was categorically not indecent, the FCC in later years treated every complaint even mentioning the word "indecency" as a reason to put a hold on that station's license renewal or sale application for literally years until the FCC could investigate the complaint. In the meantime, these stations struggled, as a delayed license renewal made obtaining financing difficult, and a delayed sale often meant that the contract to sell the station expired before the FCC could resolve the indecency complaint and approve the sale. Under these circumstances, it is pretty easy to see how a station would be hesitant to say anything offensive to anyone, even without the potential for a $325,000 indecency fine.

Among the "indecency" complaints I have encountered that were holding up a station's applications at the FCC was a complaint from a politician who didn't like what a station said about him (apparently using the word "indecent" in his complaint got it put into the indecency pile), and a complaint that a Spanish word yelled at soccer matches when a goal is scored sounds too much like a bad word in English. When such complaints are allowed to languish or become the basis of a pointless inquiry, they interfere with the operations of a station, serve to chill future speech, and create a "bunker mentality" among broadcasters that anything they say will be held against them.

So where does this leave us? Well, as a pragmatic matter, the court's ruling will not become effective until it issues its mandate, and the FCC may ask that the court delay taking that action while the FCC seeks a rehearing en banc or review by the Supreme Court. If the court's ruling does become effective, it will apply only within the jurisdiction of the Second Circuit (which includes Connecticut, New York and Vermont). Both legally and politically, the FCC will feel compelled to pursue an appeal, and the result of that effort will determine the future of its indecency enforcement efforts across the US.

That places the FCC in a very high stakes game of poker. Does it place an ever larger bet on trying to defend its existing policy? If it does, it runs the risk that the Supreme Court will rule that the very notion of indecency enforcement is unconstitutional in light of a changing media landscape and the FCC's seeming inability to apply a narrow and restrained enforcement policy. Or, does it fold this hand and return to the table later with a "back to basics" indecency policy similar to what was once found constitutional by the Supreme Court? One thing's for certain--for the first time in a long time, broadcasters are holding all the right cards in this game.


FCC Ups the Ante on Indecency and Fox Affiliates Are the Poker Chips

Posted June 3, 2010

By Scott R. Flick

If you are a Fox affiliate, your fax machine (if you still have one) probably has a message on it from the FCC waiting for you, courtesy of the latest struggle between Fox and the FCC over indecency enforcement. In a Notice of Apparent Liability released today, the FCC states it received over 100,000 complaints about a January 3, 2010 episode of American Dad aired on the Fox Television Network. Although the NAL doesn't discuss the allegedly indecent content, it appears all of the complaints relate to a single segment of the episode which brings to mind that old college query, "if Jack helped you off the horse..." (if you missed that part of college, don't worry, you didn't miss much).

While the FCC's enthusiasm for enforcing its indecency restrictions has waxed and waned over the years, what has usually been constant is the relatively slow path from complaint, to investigation, to resolution. It has not been uncommon for years to pass between these steps, which makes the sequence of events leading up to this NAL all the more interesting. In this case, the FCC sent a letter of inquiry to Fox just 18 days after the episode aired. The letter attached a single redacted complaint that the FCC indicates was "representative of the complaints received by the Commission," and asked Fox, among other things, whether the description in the complaint of the allegedly indecent content was accurate, which Fox-owned stations aired it, and which Fox Television Network affiliates had the contractual right to air it.

According to the NAL, when the response to the letter arrived at the FCC, it was not from Fox, but from the single Fox affiliate named in the "representative" complaint. As a result, the response didn't address a number of the FCC's questions, including the request for a list of Fox affiliates that likely aired the program. To no one's surprise, the FCC was not pleased. The NAL indicates that the FCC followed up with another letter on March 19, 2010 (note once again the lightning pace, with the FCC's follow-up letter going out just 18 days after the affiliate's response was filed). The FCC summarizes that letter as "describing [Fox's] failure to respond to the LOI and requiring a full and complete response to all the Bureau's inquiries no later than March 23, 2010," just four days after the FCC letter was issued.

The NAL indicates that Fox didn't respond to that letter, which also obviously did not please the FCC. In response, the FCC issued the NAL, which proposes a $25,000 fine against Fox for failure to respond to an FCC inquiry. The NAL notes that the base fine for such an infraction is $4,000, but that a "significant increase" in the fine is appropriate because "misconduct of this type exhibits contempt for the Commission's authority and threatens to compromise the Commission's ability to adequately investigate violations of its rules."

Suspecting, perhaps, that a $25,000 fine would not overly concern an operation the size of Fox, the FCC proceeded to the nuclear option: "Given the continued absence of a response from Fox and the incomplete response received from [the affiliate], contemporaneously with the release of this NAL, the Bureau is sending letters of inquiry to all licensees that air Fox Television Network programming." The NAL later notes that letters of inquiry are being sent to 235 Fox owned or affiliated stations. The FCC is obviously counting on Fox receiving a firestorm of protests from its affiliates, who now have 30 days to respond to the individual letters of inquiry, which include a request for copies of any complaints about the episode received by the stations themselves. The letters of inquiry are going out today by certified mail, but it appears that the FCC has already faxed the letters to many Fox-affiliated stations.

Both the speed and severity of the FCC's response indicate a desire to send a very clear message to licensees that there is a new sheriff in town, and not a very patient one at that. This NAL adds an exclamation point to my missive last week about the FCC stepping up its enforcement sanctions to ensure that licensees don't view them merely as a cost of doing business. Fox affiliates are about to be caught in the crossfire of the next skirmish in the indecency battle between the FCC and Fox, and they are doubtless not too pleased about it.


Supreme Court Narrowly Rules in Favor of FCC's "Fleeting Expletives" Ban

Posted April 28, 2009

By Richard R. Zaragoza and Paul A. Cicelski

Court Ordered Remand May Force the Supreme Court to deal with the First Amendment Issue

4/28/2009
In a 5-4 decision released today, the Supreme Court upheld the FCC's so-called "fleeting expletives" policy which bans the radio and television broadcast of single so-called four-letter words that are considered indecent.

However, the narrow ruling of the Court stopped short of deciding whether the FCC's change in policy violates the First Amendment. Justice Scalia's majority opinion emphasized that it was dealing only with the question of whether the FCC's new fleeting expletives policy was "arbitrary and capricious" as a matter of law. The majority determined that the FCC's change in policy was "entirely rational" under the Administrative Procedure Act. In doing so, the Court reversed the decision of the Second Circuit Court of Appeals that had found the FCC's new policy to be arbitrary and capricious and remanded the case to the Second Circuit for further review.

Continue reading "Supreme Court Narrowly Rules in Favor of FCC's "Fleeting Expletives" Ban"


FCC Enforcement Monitor

Posted June 16, 2007

By Scott R. Flick and Emily J. Helser

June 2007
Topics include:

  • FCC Fines Radio Station $4,200 for Lack of Effective Tower Fences
  • FCC Fines Television Station After Discovering Deserted Main Studio
  • FCC Fines Radio Station for Airing Prank Phone Call
  • FCC Officially Increases Maximum Fine for Indecency and Profanity

Continue reading "FCC Enforcement Monitor"


Reaffirmed Principles and New "Clarifications" of the FCC's Obscenity, Indecency and Profanity Regulations and Policies

Posted November 10, 2006

By Richard R. Zaragoza and Emily J. Helser

November 2006
In an effort to reduce the risk of reversal by the United States Court of Appeals for the Second Circuit, the FCC successfully persuaded the Court to allow it to pull back and review four indecency decisions. Earlier this week, the FCC announced the outcome of that review. The "F-word" is still very problematic. A five-second delay mechanism may not be enough to establish a legal defense. There is a tip-of-the-hat toward the First Amendment in the context of news programs but only that. And the procedural hurdle that the FCC has thrown up against blanket indecency complaints is probably only a temporary setback for national organizations intent upon "cleaning up the airwaves."

Continue reading "Reaffirmed Principles and New "Clarifications" of the FCC's Obscenity, Indecency and Profanity Regulations and Policies"