FCC Considers New Policy for Policing Broadcast Indecency

The Federal Communications Commision is considering rewriting some of its enforcement standards

The Federal Communications Commission may not be getting out of the indecency enforcement business anytime soon, but it is looking at rewriting some of its enforcement standards.

The agency said Monday that it had completed the review of indecency enforcement complaints it announced last year and cut the number outstanding by 1 million or 70 percent.

The agency made the announcement in a public notice and asked for comments on some possible changes to its enforcement rules.

The agency said one possible change could be to ease the treatment of isolated expletives. The FCC had unsuccessfully pursued an endorsement case against Fox stations involving incidents in two Billboard Music Award programs in which Nicole Richie and Cher each uttered a single swear word in presenting or accepting awards.

Today’s announcement followed turmoil last year on the indecency front.

In June, the U.S. Supreme Court declined to take a case in which the FCC tried to reinstate its decision that Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl halftime show warranted $400,000 in fines against CBS stations. The fine had been overturned by an appellate court.

Also read: Supreme Court Refuses to Hear Appeal of Janet Jackson Indecency Case

Then in September, the high court overturned an FCC attempt to ramp up indecency enforcement in instances where expletives are heard or nudity is displayed, though the court declined to rule on broadcasters attempt to completely overturn the FCC’s indecency rules as a violation of the First Amendment.

The court ruled that the FCC hadn’t given broadcasters adequate notice in 2004 when it tried to toughen enforcement under former FCC chairman Kevin Martin.

The ruling affected the Billboard shows on Fox, and the FCC’s attempt to pursue enforcement when ABC stations aired pictures of actress Charlotte Ross’ bare buttocks on a 2003 episode of ABC’s “NYPD Blue.”

Also read: Supreme Court Knocks Down FCC Indecency Rules in Fox Case, Ducks First Amendment Question

Finally the Justice Department followed up the high court’s action by dropped its defense of an FCC case involving an episode of Fox’s “Married by America” reality show. That episode featured pixilated nudity.

FCC Chairman Julius Genachowski subsequently announced the agency intended to review outstanding enforcement complaints and narrow them to the most “egregious.”

Also read: FCC to Back Away From a Majority of Its Indecency Complaints

The agency said today that the complaints it dropped were either “beyond the statute of limitations” or too stale to pursue.”

“The bureau is also actively investigating egregious indecency cases and will continue to do so,” the notice said.

The notice offered no indication of other possible changes in indecency, only asking for comment “on whether the full commission should make changes to is current broadcast indecency policies or maintain them as they are.”

While the notice asks that the comments be filed within 30 days, it’s unlikely the FCC will act very soon to make changes. After the initial comment period, the FCC will allow 60 days for replies.

Both Genachowski and Republican commissioner Robert McDowell are about to depart the FCC and any vote at the agency on indecency would likely not occur until after their replacements are nominated and confirmed by the U.S. Senate, which could be months away.