Interpreting the Recent FCC Fines

For over 20 years, it's been my job to translate the FCC's ever-changing pronouncements on naughty language into internal WFMU policy. One thing I've often told people is that you can't pay attention to what the FCC says about indecency, you have to pay attention to what they actually do, and what they do (in terms of monetary fines and so on) is constantly changing. With last month's three indecency decisions and their recent record-breaking fines, this task is becoming near-impossible.

Here's a great article I've found on the subject, by our FCC attorney (and former Howard Stern writer) Harry Cole. Harry breaks down the FCC's latest gyrations on the F-word, the S-word, pixilation, and the lesser evils of words like wang.

The Indecency Sheriff Is Still In Town
FCC tries (with limited success) to clarify policies

by Harry F. Cole, Fletcher, Heald & Hildreth, PLC

After months of anticipation, in March the FCC released three decisions addressing questions of broadcast indecency and profanity. In the FCC's view, these decisions clarify that regulatory crazy-quilt and provide useful and consistent guidance to all affected regulatees.

But out here in the real world, the Commission's decisions provide little more than a mishmash of conflicting results, questionable distinctions, pseudo-"analysis" and virtually no certainty.

Except that the Commission does, conclusively and unequivocally, announce that "shit" is to be deemed right up there with "fuck" as the two words in the English language worthy of being, among other things, "presumptively profane."

The three separate decisions were released simultaneously, and were plainly intended to be read as a comprehensive statement of the Commission's policy on indecency and profanity.  The three decisions include: (1) a decision affirming the assessment of a $550,000 fine against CBS for the 2004 Super Bowl Half Time show (which, of course, featured the notorious "wardrobe malfunction" which led to the exposure of much of Janet Jackson's right breast for - literally -  half a second ); (2) a decision assessing more than 100 CBS affiliates fines of $32,500 each (for a grand total well north of $3,000,000) for  the rebroadcast of an episode of "Without a Trace" on New  Year's Eve,  2004; and (3) a decision resolving in various ways indecency/profanity complaints directed to several dozen programs of various types.

In the aggregate, the decisions amount to nearly 100 pages (not including the separate statements of the Commissioners).  While it would be impossible to distill all of the FCC's "analysis" into the narrow confines of the Memo to Clients, here are some of the highlights.

Indecency Analysis Explained

First and foremost, the Commission has reiterated and expanded its previous analytical approach to indecency/profanity.  That analysis supposedly works as follows.  Starting with the standard definition of indecency which the Commission has used for decades ("material that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium"), the FCC first reviews the complained-of material to determine whether that material in fact "describes or depicts sexual or excretory activities or organs."

If the answer to that question is yes, then the material is further analyzed under a three-part test focusing on: (1) the explicitness or graphic nature of the material; (2) whether the material dwells on or repeats at length the offensive descriptions; and (3) whether the material "panders to, titillates, or shocks the audience."  This tri-partite analysis is "contextual," which means that it supposedly takes into account "the manner and purpose" of the material in question.  According to the Commission, this means that material which panders, titillates or shocks is to be treated "quite differently" from material which is "primarily used to educate or inform the audience."

While this "analysis" may appear at first blush to afford a somewhat objective, reproducible test which can be applied even-handedly to various fact patterns and which should, theoretically, lead to consistent results from one case to the next, look more carefully. Each of the separate components of the analysis gives the Commission boatloads of wiggle room within which to apply subjective judgments. And since the FCC insists that none of the various components is "weighted" vis-a-vis the others, the Commission has maximum flexibility to pick and choose among the various factors, stressing one or the other in any given case in order to justify a pre-ordained determination.

In other words, it's almost impossible for an average person, looking at a given set of facts, to predict with any reliability whether the FCC would conclude that those facts constitute "indecency".  (We'll illustrate this below.)

Profanity Analysis Explained

The concept of "profanity" - a class of speech separate and distinct from "indecency" - has been around for decades, and was historically thought to include some element of sacrilege.  "Profanity" was almost completely ignored by the FCC until the 2004 Golden Globe Awards decision.  At that point the Commission announced that "profanity" involved not sacrilege, but rather language "so grossly offensive to members of the public who actually hear it as to amount to a nuisance."

The recent decisions narrow that definition by limiting it to "words that are sexual or excretory in nature or are derived from such terms".  That gloss on profanity removes from the scope of "profanity" a wide variety of terms - for example, racial or ethnic epithets - that might otherwise have been thought to be "profane" under the FCC's 2004-vintage definition.  But beyond that narrowing, the new decisions shed virtually no light on how the Commission will determine, from one case to the next, whether any particular language is "so grossly offensive" as to "amount to a nuisance."      

Further complicating that profanity analysis is the FCC's observation that certain "vulgar sexual or excretory terms" are SO grossly offensive as to be "presumptively profane".  These terms are ones     which are "the most offensive words in the English language" and which are "likely to shock the viewer and disturb the peace and quiet of the home".  (It appears from the remainder of the decisions that the universe of such "presumptively profane" words is limited to two, i.e., fuck and shit.)  BUT even presumptively profane language may, in "unusual circumstances," NOT be profane "where it is demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance."

So, again, the Commission has given itself maximum leeway to engage in ad hoc decision-making, using an "analysis" which provides no meaningful guidance as to any governing limits.  Indeed, even the seemingly verboten "presumptively profane" words might be permitted.          

Pixilation, Bleeping and Clothing

Based on the definition of indecency - which, by its own terms, involves a description or depiction of activities or organs - one might conclude that indecency could be avoided by using standard "bleeping" or "pixilating" in order to mask any actual "description" or "depiction".  Think again.

The Commission has now made clear that "mere pixilation of sexual organs is not necessarily determinative . . . because the material must be assessed in its full context".

The difficulty with this approach is that it enables the FCC to penalize not what is actually depicted, but rather what the viewer or listener (whoever he or she might be) believes is being depicted. After all, lurking under the pixilation or the bleeping may be purely innocent content which the audience has been lured, by other circumstances, to mistakenly believe is offensive.  Interestingly, by the Commission's reasoning, it would appear that the use of the term "the F-word" as a substitute for "fuck" - a substitution which the Commission itself utilizes, presumably to reduce the number of really, really bad words it has to print - would be objectionable because, even though the word "fuck" is not spoken, the reader (or listener), coming across the term "the F-word", immediately recognizes the unspoken/unwritten term, i.e., "fuck."

Similarly, the Commission (in August, 2004) at least suggested that, as long as nudity was not involved, depictions of activities which might be interpreted as sexual would not be a problem.  But in the recent decisions, that no longer appears to be the case.  According to the Commission, the lack of nudity is immaterial where "the sexual nature of the scene is unquestionable".  In stating that position, however, the Commission does not explain why, then, the scene in "Buffy the Vampire Slayer" - which involved a fully-clothed Buffy "kissing and straddling" an associate in a seemingly intense and passionate manner - was deemed acceptable less than two years ago.

Which Stations Get Cited?

Historically, the Commission has tended to cite for indecency violations only those stations against which a complaint was filed. Presumably the Commission felt that, even if it had reason to believe that some allegedly indecent programming was broadcast on a number of stations nationwide, the agency's only concern should be the station whose broadcast elicited the complaint. 

That approach seemed to change in late 2004, when the FCC issued a Notice of Apparent Liability (NAL) for the broadcast of "Married By America" on the Fox Network.  The Commission sought information from a Fox O&O about what stations had carried the program nationally - a universe which included stations which were not the subjects of any complaints - and all those stations were ultimately hit with the NAL. Of course, earlier in 2004 the Commission, addressing L'Affaire Janet Jackson and Super Bowl 2004, had gone after not all the CBS affiliates which had broadcast the scandalous disrobing of Ms. Jackson, but merely the CBS O&O's.  (For what it's worth, the Commission explained this disparate treatment by saying that the CBS affiliates which are not O&O's "could not have reasonably anticipated" that the Super Bowl show would contain bad stuff, so those non-O&O's should not be liable; by contrast, the FCC noted, the Fox affiliates could have known what was in store and could have pre-empted it.)

No problem - this potential inconsistency has now been cleared up in the recent decisions.  In the "Without A Trace" decision, the Commission advises that, because of its "commitment to an appropriately restrained enforcement policy", it plans to fine only those licensees whose broadcasts were "actually the subject of viewer complaints to the FCC", even though the Commission has been "informed" that other stations also broadcast the program.  And, sure enough, the FCC applies the same "restrained" policy in several cases addressed in its omnibus decision.      

Thus, for the time being, at least, it appears that fines will not be issued against stations as to which no complaints have been filed. (It will, of course, be interesting to see how the Commission addresses this question in the "Married By America" proceeding, which is still pending before the FCC.  As noted, the initial NAL there proposed fines against a number of stations which were not the subjects of complaints.  Theoretically, the FCC's next decision relative to "Married By America" will withdraw those fines from those complaint-free stations - if, that is, the Commission really does intend to apply this policy consistently.

The S-List

One of the great ironies in the history of indecency is that, while many people seem to assume that there has always been a list of bad words (usually numbering seven) that the FCC has absolutely, positively prohibited, in fact there has never been such a list.  The notion of the "seven dirty words" was coined by George Carlin in the comic monologue the broadcast of which led to the Supreme Court's 1978 Pacifica decision.  But Carlin was just making that up - there never was such a list.  And even when the FCC slapped Pacifica for broadcasting the Carlin monologue, the FCC did not adopt his list as FCC policy.

But the irony is now complete because it appears from the recent decisions that the FCC is now ready to establish such a list.  As noted above, at present the list of "presumptively profane" words - i.e., words that ordinarily will trigger regulatory problems almost automatically - consists of two (fuck and shit, as well as their variants).  And in its recent decisions the Commission has also considered other "coarse" expressions and declined to include them on the list, even though they may be "understandably upsetting" or "understandably offensive" to some members of the audience.  That secondary list of bad-but-not-that-bad language includes: poop, crap, you suck, dick, dickhead, wang, little banana, hell, damn, bitch, pissed off, up yours and ass (in various expressions, including "kiss my ass", "fire his ass", and "wiping his ass").  According to the Commission, such language may, if used in certain particular contexts, not be "patently offensive".  This is not to say that those secondary expressions will invariably be forfeiture-exempt - to the contrary, the Commission clearly raises a warning flag about their possible use in other contexts.  The problem is that the Commission provides no guidance as to when they may be good and when they may be bad.

The FCC As Uber-Editor

Normally, we tend not to think of the FCC as a creative force in our  culture.  Rather, the Commission is simply a regulatory agency which ordinarily would not be called upon to make artistic judgments.

That was then, this is now.

The Commission has thrust itself deeply into the creative process, probably as a result of the Saving Private Ryan decision last year. To recap, back in 2004, the Commission made clear, in the Golden Globe Awards decision, that even the occasional, fleeting use of "fuck" would be prohibited.  But then along came Veterans' Day, when a number of stations chose to broadcast the World War II epic Saving Private Ryan, which prominently features the use of that word over and over again.          

Under the policy laid out in Golden Globe Awards, of course, there would have been no question: the unedited broadcast of Saving Private Ryan would have been prohibited.  But a number of folks - including politically influential veterans' groups and their standard-bearers in Congress - protested that removal of that language would render the movie inaccurate and less powerfully honest.  So the Commission carved out an exception which permits the use of graphic language (including "fuck"), when it is "critical to portraying serious events realistically."

It should not be hard to figure what happened next.  The creators of programming used graphic language and images to depict the stories they were telling, some viewers were offended by that, the FCC received complaints, and lo and behold, the FCC now finds itself in the role of art critic and editor.

For example, a noncommercial TV station broadcast a documentary about blues musicians designed to provide a window in the musicians' world "with their own words".  And those words included a fair number of selections off the Really Bad List.  The station argued that the inclusion of that language was important so as to accurately reflect the viewpoints of the program's subjects.  The Commission "disagree[d] that the use of such language was necessary to express any particular viewpoint".  The FCC also said that the station had not "demonstrated that it was essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance, or that the substitution of other language would have materially altered the nature of the work."

In the same vein, several episodes of the police drama NYPD Blue contained variations of the word "shit," usually articulated by the policeman/protagonist.  The licensee asserted that the words were used for dramatic effect (presumably in much the same way as the other Really Bad Word was used in Saving Private Ryan).  But the FCC held that "mere dramatic effect" was not an adequate justification here, apparently because the "authentic feel" of the program "could have been fulfilled . . . without the broadcast of expletives."

Obviously, the Commission has jumped with both feet into the quicksand of artistic judgment, an enticing but dangerous quagmire. The creative process is an area which does not lend itself to bright guidelines or easy limits.  If, in the creator's opinion, the use of certain language or images is essential to communicate that which the artist seeks to communicate, on precisely what basis does the FCC conclude that the language/images were not really essential, or that the artist's goal could have been achieved in some other, less offensive, way?  We don't know, and the FCC doesn't tell us.  But the FCC does make it clear that it reserves the right to second-guess artistic judgments.

The Hobgoblin At Work

In light of Emerson's admonition that a foolish consistency is the hobgoblin of little minds, it may be unwise to expect the FCC to be 100% consistent all the time.  But still, the FCC should certainly be able to do better than it has in its recent rulings.  Some examples:

In the "Without A Trace" decision, stations were fined an aggregate of more than $3 million for depicting a teen-age sex party.  But one episode of The Oprah Winfrey Show focused on teen-age sex parties, providing clear descriptions of a number of graphic sexual activities supposedly engaged in at precisely such parties.  Oprah was not penalized at all.                                                             

In a Spanish-language movie, a couple "appear to have sexual intercourse" - meaning, presumably, that the movie's images lead the viewer to surmise that sex is occurring, even if the images do not actually depict the act and the actors are not naked.  The FCC declares this indecent.  Similarly, a scene "simulating oral sex" appears in a music video - again, the use of the term "simulating" presumably indicates that the activity in question is suggested rather than explicit and that the audience is left to surmise what is happening. (There is no indication of nudity in the second example.) That, too, is indecent.    

But in an episode of Alias, two characters are shown "in bed passionately kissing, caressing and rubbing against each other" - the FCC has no problem with that.  Similarly, two programs allegedly involved plot lines in which a female character grabs or squeezes a male character's genitals for comic effect.  While there appears to be no question at all as to what was being depicted on the screen, the FCC concludes that, in these cases, "viewers [were] left to surmise what is happening", and no fine is assessed.  So it appears that implied sexual activity may be okay sometimes, but not others.

In an episode of Will and Grace, a repeated gag involves characters placing their hands on a female character's breasts and adjusting them "to enhance her appearance."  In other words, the focus of a running gag in a comedy program is a woman's breasts (which the FCC elsewhere has declared to be sexual organs, lest there be any doubt about that). But in describing the program - which does not draw a fine - the FCC declares that the episode "does not dwell upon or repeat references to         
sexual organs."

Further analysis of the Commission's decisions would likely reveal similar disconnects. The primary problem from the perspective of the broadcast industry is that these decisions leave the industry with precious little actual guidance as to where the line between good and bad actually is. Law and regulation are normally supposed to provide us all with an idea of where the line is, so that we may conduct ourselves in a way which keeps us safely on the "good" side (assuming that that's the way we choose to conduct ourselves).  So it's a disappointment - not to mention a disservice to those subject to regulation - when the FCC claims to be operating pursuant to a reasonably objective analytical standard, but in fact appears to be invoking a variation of the classic "I know it when I see it" approach.

The trouble is that, while the FCC may know indecency or profanity when it sees them, the rest of us can't know and won't know how the FCC will rule until the FCC rules.  And that uncertainty is contrary to the intended goal of good regulation, not to mention the First Amendment.

At this point it is unclear whether any of the broadcasters affected by any of the FCC's actions will attempt to appeal the decisions.  We will keep you apprised of further developments as they occur.

Illustration by Eric Drooker

Comments

[Sensei Rebel]

Won't it be a something if they fine an actual real war documentary (say about Iraq) on PBS aired with expletives but they won't fine Saving Private Ryan. You'd assume it'd be a free ride to air expletives daily as long as people are dying on screen.

[Little Banana]

Mr. Cole,
Your words, though not explicitly sexual, have lead me to think filthy naughty thoughts. Therefore, I have no choice but to report you to the proper authorities. Good day, sir.
I said good day!