FCC INDECENCY ACTION APPEARS IMMINENT

If the buzz in Washington is to be believed, FCC Chairman Kevin Martin and his fellow commissioners may finally offer TV stations some much needed clarity on indecency enforcement and begin breaking up the license renewal logjam by acting on a “big package” of indecency complaints—perhaps as early as next week.

There’s been considerable speculation about what’s in the package, which has been circulating among the commissioners for months. It’s expected to affirm a hefty fine against CBS for Janet Jackson’s special moment at the 2004 Super Bowl and a couple of other fines in high-profile TV cases. It’s also expected to propose some new fines and dismiss at least some of the tens of thousands of complaints that have been piling up at the agency. The FCC initiated no new indecency actions in all of 2005, despite all those complaints and its Web site’s claim that it “vigorously enforces” the indecency statute. It did, however, dismiss some insubstantial complaints from 2004.

Why the hold up? Chairman Martin is a big indecency foe and insiders say he wants the full support of the other three sitting commissions. If they are in sync it will bolster the agency’s position against any court challenges and provide broadcasters with a clearer view of what the FCC deems indecent. “It may be that he [Martin] doesn’t have the votes” for what he wants to do, says one source close to the FCC.

FCC inaction has left TV broadcasters hanging with uncertainty, especially since earlier indecency actions only added to the confusion. There is the commissioners’ vote reversing a staff determination that Bono’s use of the f-word during NBC’s Golden Globes awards program in 2003 was not indecent. And then there is the commission’s unanimous conclusion not to fine stations for the airing of an uncut version of Saving Private Ryan in 2004, despite its frequent profanity. It has some broadcast attorneys crying “fubar.” Well, not quite.

“Clarification from the commission would be welcome because we now have a patchwork of inconsistent rulings leaving broadcasters little choice but to guess what is permissible,” says broadcast attorney Wade Hargrove of Brooks, Pierce and McLendon.

Although the FCC is allowing sales of stations with pending indecency complaints, it is holding up license renewals. NBC affiliates, for instance, are in limbo until the FCC acts on indecency complaints concerning the broadcast of the 2004 summer Olympics. Viewers were unhappy with the use of the f-word during a volleyball game as well as the opening ceremony which included some male nudity.

The big case is, of course, the proposed $550,000 fine against the CBS O&Os for the intentional/unintentional (you tell me) exposure of Janet Jackson’s breast two years ago at the Super Bowl. CBS has challenged the fine, which required an FCC review.

There’s also a proposed fine of $1.2 million against Fox and its affiliates for a broadcast of Married By America in 2003. If upheld, affiliated stations will have to pay $7,000 each. Complaints were filed against the program for featuring partially dressed strippers with suggestive sexual behavior. A straight-faced Fox says the sexual material was “fleeting” and was not intended to “pander or titillate.” But the Enforcement Bureau disagreed.

The FCC is also reconsidering its proposed $27,500 fine against Young Broadcasting’s KRON San Francisco. KRON’s news department aired a segment in 2002 on “Puppetry of the Penis,” in which one of the performer’s penis was briefly aired as he demonstrated “genital origami.” Young contends the exposure was “accidental and unintentional.”