The FCC’s fine of WDBJ Roanoke, Va., for inadvertently including three seconds of a Web promo for a porno in a news story once again demonstrates the second-class status of broadcasting. It is absurd that broadcasting is still subject to such rules when the nearly equally pervasive Web is absolutely loaded with all manner of explicit sexual content that goes far, far further. Cable, too, is much worse than broadcasting in spewing out programming offensive to many Americans.
JESSELL AT LARGE
WDBJ Fine Highlights Broadcast Inequality
When I first saw the FCC order fining Schurz’s WDBJ Roanoke-Lynchburg, Va., $325,000 for broadcast indecency, I frankly didn’t have much sympathy for the station. I figured that the offending story about an ex-porn star joining a local rescue squad was another attempt by a station to pump up the ratings with a little gratuitous sex.
But after looking at the station’s response to the FCC inquiry and a transcript of the story, I see that the story, which aired in July 2012, is legit. It seems that some people around Cave Spring apparently didn’t like having an ex-porn star on the rescue squad and were trying to get her bounced from it.
That should help Schurz in trying to convince the FCC to rescind the fine or to reduce it considerably. A third of a million dollars is a big hit, especially one in DMA 67.
As Schurz said in response to the FCC inquiry, as part of a bona fide newscast, the story is deserving of the FCC’s “utmost restraint” in enforcing its indecency rules.
But even if the story was pointless and the sex gratuitous, WDBJ still deserves the full protection of the First Amendment. All programming, news or entertainment, should be beyond the reach of federal censors. The FCC should practice total restraint.
Look, Schurz clearly screwed up.
BRAND CONNECTIONS
I have not seen the story as broadcast, but I have read descriptions of it. The story introduces the then 29-year-old Harmony Rose (nee Tracy Rolan) by showing a clip taken from a porn site that distributed her work.
The clip is sexually suggestive. Here’s how the FCC described it: “[S]he has her finger in her mouth, moving it up and down on her tongue, with her lips partially open and then closing as she appears to suck on her finger.”
That alone may have been enough to rile up some folks along the Blue Ridge Mountains as they were settling down for dinner on a nice summer evening.
But it wasn’t the pictures of Ms. Rose that triggered the real outrage and the fine. It was what else was in the footage taken from the website.
If we are to believe the station, when the photographer shot the footage of Rose on the site, he inadvertently included in it a small box on the side of the Web page showing a clip for another film. The box showed, in the words of the FCC, “a naked, erect penis and sexual manipulation.”
Nobody at the station noticed so when the story aired so did the penis and the hand for about three seconds, which isn’t long, but is long enough. Viewers didn’t miss it and, as I said, many were not happy. Their complaints made their way to the FCC.
The FCC said that those three seconds met its two-pronged test of determining whether something was indecent. First, it depicts in context a sexual organ and sexual activity and, second, it is patently offensive as measured by contemporary community standards.
I said above that broadcasters deserve the full protection of the Constitution, but, of course, they don’t have it. They still labor under an antiquated law and FCC implementing rules that treat stations like second-class citizens under the First Amendment.
It is absurd that broadcasting is still subject to such rules when the nearly equally pervasive Web is absolutely loaded with all manner of explicit sexual content that goes far, far beyond anything seen in broadcasting, including those three seconds on WDBJ.
It’s all there for any curious and enterprising 10-year-old with a computer and broadband connection. Cable, too, is far worse than broadcasting in spewing out programming offensive to many Americans.
Clean-up-the-media organizations like the Parents Television Council target broadcasting only because they can, only because broadcasting is held to the higher and discriminatory legal standard.
A series of court decisions over the years has narrowed the FCC’s ability to regulate indecency. It is on those decisions that Schurz had pinned its hopes of persuading the FCC not to impose a fine on WDBJ.
In addition to arguing for utmost restraint from the FCC because the content in question was news, Schurz said the FCC’s new “egregious” standard for judging indecency is no less ambiguous than the old standard thrown out by the Supreme Court last year. Plus, it said, under the same court ruling, the FCC has yet to establish a clear basis for penalizing a station for “fleeting indecency” like that of the WDBJ broadcast.
Schurz has some options, none particularly good. My guess is that it will appeal the fine at the FCC. It won’t be easy. It will have to come up with some sparkling, new arguments. If it does appeal, it would help if other broadcasters lent their support. If it can happen to a broadcaster like Schurz, it can happen to anyone.
I do believe the station’s story. I don’t think the reporter, the photographer, the news director or any producer intentionally included the offending images in the story as some kind of joke.
But it really shouldn’t matter.
Regulating indecency in broadcasting should be as unconstitutional as it is in publishing, the movies, the Internet and every other medium.
Harry A. Jessell is editor of TVNewsCheck. He can be contacted at 973-701-1067 or [email protected]. You can read earlier columns here.
Comments (15)
Gene Johnson says:
March 27, 2015 at 3:54 pm
One of the problems with the FCC’s maximum fine in this case is that it leaves no room for a station that might broadcast offending content intentionally, much larger on the screen, or for longer than a fleeting 3 seconds, putting aside for argument’s sake the Constitutional issue and different First Amendment treatment/standard. Assuming the station and its personnel did not misrepresent themselves to the FCC, the broadcast of the “indecent” material was accidental and unintended (which seems completely believable in the circumstances of this case), in addition to fleeting (I do consider 3 seconds fleeting, even though it is long enough to get noticed). Imposition of the maximum fine in this case seems to be gross overkill, assuming the FCC is going to continue to be able to enforce its indecency standards. If Shurz is willing to pursue the matter, this might be the case that finally gets the Supreme Court to actually address the continuing viability under First Amendment analysis of the indecency regulatory regime.
Amneris Vargas says:
March 27, 2015 at 4:21 pm
FCC’s Net neutrality assures streaming pornographers unfettered and un-throttled and uncensored access. Good editorial Harry. Not defending a mistake, but if anyone saw this on TV, half were watching it on cable/sat and not over the air.
Angie McClimon says:
March 27, 2015 at 5:56 pm
Cable’s most offensive channel is Fox News. And yet it remains.
Keith ONeal says:
March 27, 2015 at 9:39 pm
This story is about Broadcast Television, not Cable (which the FCC can’t regulate anyway).
Amneris Vargas says:
March 28, 2015 at 7:46 am
that is the point. half of the mishap was delivered to cable
Adam Causey says:
March 29, 2015 at 8:19 pm
Try watching FOX sometime.
bart meyers says:
March 27, 2015 at 7:07 pm
Having been in a local TV newsroom, in editing, just before a scheduled newscast, I can tell you that it can be hectic. Story packages that air in minutes are sometimes being edited under the tightest time constraints. Under those circumstances, I can see how, maybe, a three-second shot of what you described, could slip by the photog/editor, who is often the same person.
But it seems to me that this was a high-profile story, and considering why, and where they were getting the b-roll, I would think that the acting news executive would have screened that story.
If viewers can pick out three-seconds of something going on in the corner of the screen, you’d think someone at the station would have as well.
Just saying.
Ellen Samrock says:
March 27, 2015 at 10:14 pm
This fine is entirely agenda driven. Instead of a scalpel the FCC used a cudgel simply because it can. I’m still not entirely sure as to why this extreme animosity against television broadcasters exists but it became very evident with Genachowski and continues with Tom Wheeler, two of the most offensive hacks of the Obama Administration. But as we and the NAB know, the fine does not fit the crime.
Adam Causey says:
March 29, 2015 at 8:21 pm
How about the unintentional exposure of Janet Jackson’s breast during the 004 Superbowl?
Wagner Pereira says:
March 30, 2015 at 12:10 am
That is why the max fine was increased from $32.5k to $325k. They are paying 10x more per incident because of that event. BTW, CBS was charged with $32.5k for each of their O&O Stations.
Adam Causey says:
March 29, 2015 at 8:23 pm
I;m sure the average American knows what a penis looks like. Europe has been way ahead of us as far as reality goes for decades. The world won’t come to an end over this.
Teri Keene says:
March 30, 2015 at 1:01 am
Thank God this didn’t happen in my market. People go into a tizzy here whenever a woman appears in a tight skin dress on a newscast. And I live in a supposedly “liberal” and “progressive” city.
Humberto Pazos says:
March 30, 2015 at 5:46 pm
I like the comment that Broadcasting is held to a “higher standard”. Although it was written as a complaint…it actually is what sets Broadcasters apart from the rest of the field. If that fine offends you worse than the report allowed to air, your responsibility as a broadcaster is missing. Besides the argument that you think it is not morally wrong…it certainly means the end of what was once NEWS. Any station that aired that is not serving the community. I agree the $350K is large, but if the reporter, editor, director and manager had resigned…now we might think a monetary fine is redundant. Come on…you owe it to the viewers and to your profession to not allow that on the air.
Gary Kanofsky says:
March 30, 2015 at 6:38 pm
“It is absurd that broadcasting is still subject to such rules when the nearly equally pervasive Web is absolutely loaded with all manner of explicit sexual content that goes far, far further.”
And now the FCC has total control of the WEB. How long before the FCC decides that it can control the content on the WEB in the US? (think China and Iran as an example) We either have freedom of speech in this country or we don’t. (I am not talking about yelling fire in a theater).