November 11, 2004

Fear Of The FCC

The Federal Communications Commission (FCC) has come down exceptionally hard on broadcasters since the "wardrobe malfunction" at this year's Superbowl. It's so bad that now many TV stations are refusing to air Saving Private Ryan uncut on Veteran's Day, which has been a tradition since 2000.

One of the reasons it can't be cut is per contract with Steven Spielberg (similar deal he made for Schindler's List).

Why does the FCC have this measure of control over free public airwaves?

Their main authority is frequency allocation. They control what bands are used by the military, radio, TV, and all other communications equipment. They also investigate and stop any intrusions into a liscensed frequency range. Clearly this kind of control is necessary.

But control over broadcast free speech? And especially with such vague guidelines and in defiance of U.S. courts? Here is some data I gathered right from

Indecency: "Language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities."

(Note however that this is different from obscenity; "Indecent programming contains patently offensive sexual or excretory references that do not rise to the level of obscenity." But that's just splitting hairs.)

Profane: "Language that denotes certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance."

My initial problem with this is the vague wording. Nowhere do I see "7 dirty words" or anything that clearly defines these standards. These standards are all up to interpretation, in other words any single individual can determine something is patently offensive or profane. Imagine if our driving laws were treated in the same way, just vague outlines with no posted or written limits:

Speeding: Any speed that is inherently dangerous as measured by community safety standards for travel, while taking into account such factors as pedestrian traffic, time of day and weather.

Wreckless Driving: Any speed or method of driving that is violently dangerous or so grossly endangers other travellers and pedestrians that it amounts to a niusance.

So speeding tickets would be entirely up to the civilian who thought you might be going too fast. Following the FCC enforcement example, the police would then perform an investigation to see if they think you were truly speeding or driving wrecklessly, then fine you if they decide you were indeed breaking the law. So in this example, not only is the witness biased (I'd probably say you weren't speeding, but if granny saw you then she'd file a report for sure), but the police also have their own they fine you, or overlook your crime?

Which brings me to my second point, the FCC does practice selective enforcement. They have no problem fining the balls off of Howard Stern, but they won't touch Oprah Winfrey...even when she does a show about teen sex acts after the Superbowl incident! The teens talk about such acts as "tossing a salad", a coded reference that Stern is no longer allowed to use for fear of FCC fines. In fact, the recent fines brought against Clear Channel were for Stern broadcasts over 2 years old.

The FCC enforces standards in two ways. One is that they fine the station, these fines have recently been increased to some astronomical amount (I believe it's 250,000 or 1/2 million) per incident. Meaning that if the FCC wanted to fine ABC for this year's Saving Private Ryan broadcast, they could level the maximum fine per station that airs the broadcast. For a big company like ABC that may be a bitter pill indeed, but one they could possibly afford to swallow. But an individual broadcaster?

The other way the FCC enforces standards is through their liscensing of the frequency band. Over 10 years ago, when Stern was again in hot water with the FCC, Infinity was preparing to take the FCC to court. But before they could bring the matter before a judge, all new liscenses and liscense renewels were stalled by the FCC, ie. not renewed. A media company not getting its frequency liscences renewed spells financial disaster.

Which brings us to my final issue, free speech. Here's the blurb on free speech from the FCC website: "Expressions of views that do not involve a 'clear and present danger of serious substantive evil' come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press. The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech." It goes on to say that, "This principle ensures that the most diverse and opposing opinions will be expressed, even though some may be highly offensive."

So free speech is guaranteed by the Constitution. The Communications Act prevents the FCC from censoring or passing a regulation that prevents free speech...even offensive speech.

But here's the killer, again right off the FCC website: "The Courts have said that indecent material is protected by the First Amendment to the Constitution and cannot be banned entirely. Nonetheless, the FCC has taken numerous enforcement actions against broadcast stations for violations of the restrictions on broadcast indecency."

So U.S. courts have protected indecent material as part of free speech, but the FCC has enforced their standards and punished broadcasters anyway.

Now even though I am a fan of Howard, I'm not a conspiracy nut or an anarchist. I simply don't see the need for the FCC to selectively enforce a vague decency standard. Either draft a set of clear rules on what can and can't be said, then enforce these across the board, or get out of the morality business altogether.


Anonymous Anonymous said...

Just to play the Devil's Advocate,

I don't think the FCC would have had the "fit" that they did, if this "costume malfunction" had not aired on prime time television. I believe firmly that the so-called "malfunction" was staged. Personally, I have no interest in Jackson's exposed breast. I don't normally watch football, so it wasn't a big deal to me, until the media kept waving it in my face on the evening news, but that's beside the point. The point is that there were probably quite a few guys who suddenly and unexpectedly got treated to a 25 cent peep show, along with a lot of junior football fans who shouldn't have seen it at all. It's easy to understand how parents might be outraged, at least the mother's. It wasn't a documentary on tribal behaviour, it was a prime time LIVE football game.

Lately it seems that entertainers are pushing the envelope on the outrageous and what mainstream considers decent, just to make the headlines and cause innane controversy. Madonna's "girl on girl kiss" on a nationally broadcast award show, comes to mind. Anything to stay in the limelight; pathetic.

Here is a quote I pulled from the documentation from the FCC site. Forgive me if some of it is quoting what you already have.

It is a violation of federal law to broadcast obscene, profane or indecent programming. The prohibition is set forth at Title 18 United States Code, Section 1464 (18 U.S.C. § 1464). Congress has given the Federal Communications Commission the responsibility for administratively enforcing 18 U.S.C. § 1464. In doing so, the Commission may issue a warning, impose a monetary forfeiture or revoke a station license for the broadcast of obscene, profane or indecent material.

Obscene Broadcasts Prohibited at All TimesObscene speech is not protected by the First Amendment and cannot be broadcast at any time. To be obscene, material must meet a three-prong test: (1) an average person [you and me], applying contemporary community standards [folks in our community not the broadcast community], must find that the material, as a whole, appeals to the prurient interest [inciting unwholesome desire]; (2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value. See Miller v. California, 413 U.S. 15 (1973).
Despite the legalese, I think that last part says it pretty clearly. Though I am in agreement that if you punish one, you must punish all equally.

1) The community, the people of the US are the moral compass that decides whether Jackson's costume malfuction or Stern's content matches the Prurient interest definiton. According to Mr. Webster's 9th is 'marked by or arousing an immoderate or unwholesome interest or desire'.

2) I don't know what the "applicable law is", it probably varies state to state and I am certain that the FCC probably has THE BIG BOOK OF BAD WORDS and JOY OF SEX descriptions somewhere on their book shelf. ;)

3) I think that in all cases, there was no value other than shock. I can laugh at the lowest common denominator humor as well as the next person, but sometimes it really does cross the line.

The FCC hasn't come down on the networks for the past 3 years regarding Saving Private Ryan because there is nothing patently offensive. Gratuitous violence, yes. Profanity, some. Taken as a whole, the movie does not break any of the rules above. War is violent, it's a fact. Is it obscene, yes, but not in the sexual sense.

Here's a thought. Given the viciousness of the election, the dredging up of war records, ABCs obvious bias, as well as other major networks, perhaps, just this year, they are using this as a means of protest, not just the FCC, but perhaps they are having bitter feelings about the war and the effect it had on the election and don't want to draw attention to our fighting men and women, past and present, or give them a modicum the attention and respect that they deserve.

I think it is something to consider.

As for me, I like having the option of changing the channel or radio dial and not being subjected to constant innuendo, people waving their privates in my face, or watching Madonna "french" Britney Spears. Right now, if I don't want to hear what Howard Stern is spewing or watch people constantly grabbing their crotch on MTV, I just change the dial. That's my choice. It's nice to have one. I think that if we had nothing at all, I wouldn't have that luxury.

FCC OPIFor full text of quotes above.

2:59 PM  
Blogger Rothar said...

I definitly have to agree that MTV (who produced the Superbowl halftime show) have been delving farther and farther into the land of Bad Taste...or in some cases, No Taste. Guess I'm just one of those who never got 'Jackass'. Then there was the stunt which shall hopefully never be shown, where two guys came live on stage and...(*scratches head* just how do I describe this?)...sprayed the audience with their waste. If you don't believe me then Google it, it's pretty foul.

I also agree that Janet Jackson's breast should not be on TV with the Superbowl, when kids will be watching. If she wants to go on NYPD Blue, that's another thing, but not the Superbowl.

"Change the channel", and might I add "Watch your children", are the options I'd prefer over Puritanical government regulation. At last count over 100 ABC affiliates refused to air Saving Private Ryan. The FCC says they may investigate, or they may not. Meanwhile every day I hear songs on the radio that were never censored before, now they're practically butchered. One song was edited so heavily that the 4 beat rhythm was destroyed. That's the fear I'm talking about - the threat of fines that may be imposed.

11:25 PM  

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