The Roanoke, Va., station says the FCC made a number of errors in applying the maximum penalty for just 2.7 seconds of video covering a small portion of the screen.
WDBJ Roanoke, Va. (DMA 67), officially opposed the FCC’s imposition of a $325,000 fine — the commission’s maximum punishment — on the Schurz Communication-owned CBS affiliate for its unintentional broadcast of 2.7 seconds of offensive video.
During coverage of a controversy in the Cave Spring, Va., community in 2012, a WDBJ photojournalist accidently included a piece of video that contained an offensive image. The video was seen for only 2.7 seconds of the far edge of the screen, occupying only 1.7% of the screen area. WDBJ explained to the FCC that the image was not visible to either the photojournalist who produced the story or to two supervisors who reviewed it.
WDBJ’s filing claimed that the FCC’s notice was based on mistaken assumptions about the incident and misapplied the FCC’s own standards.
Although the FCC acknowledged that the First Amendment required it to exercise “utmost restraint,” WDBJ said that the FCC in fact ignored court decisions raising doubts about whether the commission’s indecency policies violated the First Amendment.
The station also claimed the fine “violates the Communciations Act insofar as it proposes to penalize WDBJ for an alleged indecency violation that was neither ‘willful’ nor ‘repeated,’ as required.”
And finally, WDBJ argued that, even if some penalty could properly be imposed, there was no justification for the FCC to impose a fine 46 times greater than its rules establish.
WDBJ President-GM Jeffrey Marks said: “While WDBJ regrets that an offensive image was inadvertently broadcast, we believe that the First Amendment does not allow the FCC to ‘throw the book’ at a station for unintentionally including a fleeting inappropriate image in a newscast about a legitimate story. WDBJ has taken steps to ensure that this kind of incident cannot be repeated. We have asked the FCC to withdraw its proposed forfeiture.”