FCC To Target ‘Egregious’ Indecency Cases

The FCC on Monday asked for public comment on whether the agency should cut back on its indecency enforcement to focus on only the most egregious cases.

At the same time, the FCC announced that the agency had eliminated 70% of the agency’s pending indecency complaints — or more than one million — since September 2012, when Chairman Julius Genachowski directed FCC enforcement officials to focus on only the most egregious examples of alleged violations.

Public comment on the FCC’s proposal to narrow its enforcement policy will be due 30 days after publication of the agency’s April 1 public notice in the Federal Register.

In its announcement, the FCC said that its massive backlog of indecency complaints had been slashed “principally by closing pending complaints that were beyond the statute of limitations or too stale to pursue, that involved cases outside FCC jurisdiction, that contained insufficient information, or that were foreclosed by settled precedent.”

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

In its notice, the FCC also said it is seeking comment on whether the agency should continue with current policies or leave or ignore “isolated expletives,” focusing instead on “deliberate and repetitive use [of expletives] in a patently offensive manner.”

“Should the commission treat isolated [non-sexual] nudity the same as or differently than isolated expletives?” the commission asked.

“While we build a record for the full commission’s consideration, the aforementioned directive to the bureau to focus its indecency enforcement resources on egregious cases remains in force and the commission and/or bureau may take enforcement actions during the pendency of this public notice,” the FCC said.

The FCC’s action is a response, in part, to the Supreme Court’s invitation in the FCC v. Fox Television Stations decision last June. In its decision in the Fox case, the high court vacated key FCC indecency enforcement actions that had been based on a beefed-up enforcement policy under which the agency was cracking down on even “fleeting expletives” and brief glimpses of nudity.

The high court said the FCC had not given broadcasters adequate notice that fleeting expletives and nudity would be subject to sanctions.

The high court did not strike the regulations down as unconstitutional in Fox, opening the door for the agency to try to come up with an enforcement regime that could pass court muster.

“Because the commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the commission’s standards as applied to these broadcasters were vague,” the high court said in its 8-0 Fox ruling.

The Fox case stemmed from the challenges of that network and other broadcasters to a 2004 decision by the FCC to adopt the stricter enforcement standard. The Supreme Court later combined the Fox case with another stemming from the appearance of actress Charlotte Ross’ bare buttocks on a 2003 episode of ABC’s NYPD Blue.

The FCC originally adopted the stricter standard — barring even “fleeting” indecencies — after entertainers Cher and Nicole Richie said “fuck” during Fox’s 2002 and 2003 broadcasts of the Billboard Music Awards.

Last September, Genachowski directed the agency’s staff to focus its enforcement efforts on only the most egregious of the more than 1.5 million pending complaints.

Parents Television Council President Tim Winter said in a statement: “On behalf of millions of families, the PTC firmly believes that the FCC should not limit indecency enforcement only to ‘egregious’ vs. isolated instances. The FCC is supposed to represent the interests of the American public, not the interests of the entertainment industry.

“Either material is legally indecent or it is not. It is unnecessary for indecent content to be repeated many times in order to be actionable, and it is unwise for the FCC to pursue a new course which will guarantee nothing but a new rash of new litigation.”