Articles Posted in Indecency

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:

Headlines:

• Michigan Class A TV Station Agrees to Pay $45,000 for Numerous Children’s Programming and Public Inspection File Violations
• New York TV Station Agrees to $10,000 Consent Decree to End FCC Investigation into Indecency Allegations
• California Radio Licensee Agrees to $8,000 Consent Decree for Unauthorized Transfer of Control

Michigan Class A TV Station Acknowledges Children’s Programming and Public Inspection File Problems

The FCC entered into a Consent Decree with a Class A TV station in Michigan to resolve an investigation into violations of the Children’s Television Act (“CTA”) and the FCC’s public inspection file rule.

The CTA, as implemented by Section 73.671 of the FCC’s Rules, requires full power TV stations to provide sufficient programming designed to serve the educational and informational needs of children, known as “Core Programming”, and Section 73.6026 extends this requirement to Class A stations. The FCC’s license renewal application processing guidelines direct Media Bureau staff to approve the CTA portion of any license renewal application where the licensee shows that it has aired an average of 3 hours per week of Core Programming per program stream. Staff can also approve the CTA portion of a license renewal application where the licensee demonstrates that it has aired a package of different types of educational and informational programming that, even if less than 3 hours of Core Programming per week, shows a level of commitment to educating and informing children equivalent to airing 3 hours per week of Core Programming. Applications that do not satisfy the processing guidelines are referred to the full Commission, where the licensee will have a chance to demonstrate its compliance with the CTA.

Section 73.3526 of the FCC’s Rules requires commercial broadcasters to maintain public inspection files containing specific types of information related to station operations, and subsection 73.3526(b)(2) requires TV and non-exempt radio stations to upload most of that information to the FCC-hosted online public inspection file. For example, subsection 73.3526(e)(11) requires TV stations to place in their public inspection file (i) Quarterly Issues/Programs Lists describing the “programs that have provided the station’s most significant treatment of community issues during the preceding three month period” and (ii) certifications of compliance with the commercial limits on children’s programming. In addition, subsection 73.3526(e)(17) requires Class A stations to place in their public files documentation demonstrating compliance with Class A eligibility requirements.

In May 2013, the station filed its license renewal application. Upon review of the station’s public file, the FCC found that the station had failed to timely file Children’s TV Programming Reports for 35 quarters, and failed to place in its public file numerous required documents, such as Issues/Programs Lists, Commercial Limit Certifications, and Class A Eligibility Certifications. In May 2016, upon request of the FCC, the station amended its renewal application to acknowledge and describe the violations. The station made additional clarifications to the application in November 2016.

The Media Bureau’s audit of the station’s children’s programming revealed that the station failed to meet the three hour Core Programming processing guideline for ten quarters, for an aggregate shortfall of 110 hours, with quarterly deficiencies ranging from one hour to 22 hours. As a result, the station’s application was referred to the full Commission for consideration.

The station subsequently entered into a Consent Decree with the FCC to resolve the investigation into public file and children’s programming violations. As part of the Consent Decree, the station admitted liability, agreed to make a $45,000 settlement payment to the government, and agreed to implement a compliance plan. In turn, the FCC agreed to grant the station’s license renewal application for a short-term period of two years instead of the regular eight-year term.

Under the compliance plan, the station must, among other things, designate a compliance officer responsible for compliance with the FCC’s Rules, air at least four hours of Core Programming per week (as averaged over a six-month period), provide training to staff on compliance with the FCC’s Rules, and work with outside legal counsel to obtain guidance on FCC compliance issues. The compliance plan will stay in effect until final FCC action is taken on the station’s next license renewal application.

New York TV Station Agrees to $10,000 Consent Decree to End FCC Investigation into Indecency Allegations

The FCC entered into a Consent Decree with a New York TV station to resolve an investigation into whether the station aired indecent programming.

Section 73.3999 of the FCC’s Rules restricts the broadcast of indecent material between 6:00 a.m. and 10:00 p.m. In addition, Section 73.1217 (the “broadcast hoax rule”) forbids the broadcast of “false information concerning a crime or catastrophe if: (a) The [station] knows the information is false; (b) It is foreseeable that broadcast of the information will cause substantial public harm; and (3) Broadcast of the information does in fact cause substantial public harm.”

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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.

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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 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.