Sunday, February 20, 2005
The Commission has defined broadcast indecency as 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. In applying the "community standards for the broadcast medium" criterion, the Commission has stated, "The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area. Rather, the standard is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant." Indecent programming contains sexual or excretory references that do not rise to the level of obscenity. As such, the courts have held that indecent material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted in order to avoid its broadcast during times of day when there is a reasonable risk that children may be in the audience.The increase in fines for these violations has the most effect on the independent broadcasters and stations. If ABC, as a network, is fined $500,000 because someone said "fuck" they can absorb that fine without too much trouble. If a public access station is fined that amount, they might have to close completely. So the fines are extremely daunting to smaller operators. Do you think they will take a chance on it? The following is from a CJR post. I might be wrong but I think that the FCC used to use revoking of the broadcast license as the main threat for these sort of violations.
Two different incidents this week speak volumes about the legacy of outgoing FCC chairman Michael Powell. The first, which will undoubtedly have far-reaching consequences for free speech in the broadcast media, was the House of Representatives passing the "Broadcast Decency Act" -- a bill calling for an increase of the basic FCC fine for "indecent" content from $32,500 to $500,000. The Senate is currently working on its own version of the bill, which calls for a minimum fine of $325,000.
Since assuming the chairmanship of the FCC in 2001, Powell has embarked on a policy of fining broadcasters for alleged indecent content that is unparalleled in the history of American media. Under his stewardship, FCC fines for material deemed offensive soared to nearly $8 million in 2004 -- up from a mere $48,000 in the year before he took the commission's reigns.
Like a true politician, Powell claims he was responding to public demand. In late 2004, he informed a Congressional committee that there has been a "dramatic rise in public concern and outrage about what is being broadcast into their homes." But that's not quite true. Although he FCC has indeed seen an explosion in complaints over supposed broadcast indecency -- reaching more than a million in 2004, up from 14,000 in 2002 and less than 400 a year prior to that -- as Mediaweek pointed out, over 99 percent of those complaints came from one group, the conservative Parents Television Council.
As a direct result of that group hijacking the compliant Powell's agenda, broadcasters have grown fearful of airing anything that might be construed as indecent. Adding to the confusion is Powell's lack of any discernable standard in handing out fines. In March 2004, the agency reversed itself on Bono's use of the f-word in his Grammy acceptance speech, originally allowing it, and then changing course and calling it a violation. It also, of course, slapped a $500,000 fine on CBS for the Janet Jackson "nipplegate" fiasco, and a whopping $1.2 million fine Fox for the reality series "Married By America." On the other hand, last month the FCC dismissed a series of complaints against "Friends," "The Simpsons" and "Austin Powers: The Spy Who Shagged Me."