Defining Indecency in View of the Commission's Increased Forfeiture Authority
Since the highly publicized “wardrobe malfunction” that occurred during the 2004 Super Bowl halftime show, the FCC has intensified its efforts to define and punish indecency over the nation’s airwaves. In a departure from earlier FCC precedent, even fleeting uses of expletives, such as the “F-word” and the “S-word,” may now result in substantial forfeiture penalties. Other forms of programming that the FCC has recently found to be indecent include brief displays of nudity; depictions of sexual activities, whether or not they include nudity; and sexually explicit language, whether or not it contains expletives.
Indicative of the federal government’s heightened concern over indecency, Congress recently increased by ten-fold the fines that may be assessed for the broadcast of indecent programming. Prior to the increase, the maximum fine for any violation was $32,500. Under the new law, the FCC may impose a maximum fine of $325,000 for each broadcast of “obscene, indecent or profane language” or for each day of a continuing violation, not to exceed $3 million for any single act or failure to act.1 With this substantial increase, it is now more important than ever that broadcasters attempt to comprehend the line between permitted programming and actionable indecency.
Federal law (18 U.S.C. § 1464) prohibits the broadcast of obscene, indecent, or profane programming. The FCC rules implementing this statute prohibit radio and television stations from broadcasting obscene material at any time and indecent material between 6 a.m. and 10 p.m., when children are likely be in the audience (the so-called “safe harbor”). The FCC defines as “indecent” material that (1) depicts or describes sexual or excretory activities or organs (2) in terms patently offensive as measured by contemporary community standards for the broadcast medium. The FCC determines whether broadcast material is patently offensive on a case-by-case basis upon consideration of the full context in which the material appeared. Three principal factors are significant to this contextual analysis: (1) the explicitness or graphic nature of the description; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and (3) whether the material panders to, titillates, or shocks the audience.2
The FCC defines “profanity” in a similar manner. Profanity includes words that are sexual or excretory in nature, or are derived from such terms, that are so grossly offensive that they constitute a nuisance. Indicative of the Commission’s expanding view of profanity, the full Commission reversed a staff decision finding that Bono’s use of the “F-word” on the 2003 Golden Globe Awards show was a “fleeting” reference used as an exclamatory adjective rather than as a description of sexual or excretory activity or organs. In reversing, the Commission found that the “F-word” by definition has a sexual connotation, and explicitly overruled numerous prior decisions holding that fleeting uses of the “F-word” are not actionable.
On May 31, the FCC affirmed its previously imposed forfeiture penalty of $550,000 against Viacom ($27,500 for each station that broadcast the material) for the 2004 Super Bowl halftime show featuring Janet Jackson and Justin Timberlake. The FCC found the show to be indecent, not only for the brief exposure of Ms. Jackson’s breast, but also because the show was comprised of sexually suggestive musical lyrics and dancing between Ms. Jackson and Mr. Timberlake. The Commission’s decision was influenced by the fact that the show was broadcast as part of a heavily watched event that took place when children would likely be watching.
This followed the FCC’s March 15, 2006, orders, in which the Commission: (1) imposed a fine of $32,500 for each affiliate station that aired an episode of the CBS program “Without a Trace,” broadcast on Dec. 31, 2004; and (2) released an omnibus decision that made indecency findings for 27 different programs broadcast in 2004 and 2005.3 In its decision concerning the program “Without a Trace,” the FCC determined that a program depicting teenage boys and girls participating in an orgy was indecent and therefore actionable. The scene at issue was a flashback depicting partially clothed teenagers engaging in simulated sexual activities between couples and in groups. There was no actual nudity, i.e., depictions of nude sexual organs. Upon a review of these facts, the FCC determined that the program depicted numerous sexual activities and therefore fell within the purview of the FCC’s indecency definition. The FCC further determined that the material was patently offensive, because it was explicit, dwelled on sexual material, and was shocking and titillating.
In its omnibus decision, the FCC determined the following programming to be indecent or profane and thus subject to a penalty: (1) a show depicting a pool party for the pornographic movie industry containing pixelated views of nude female breasts and male attendees kissing female breasts; (2) a scene, containing no nudity, depicting a woman being raped while another man watches; (3) a talk show in which a woman appears in an open front dress, with her nipples covered, but her breasts otherwise fully exposed; (4) music videos containing sexually explicit lyrics; (5) a pre-recorded PBS documentary series on blues musicians in which the musicians repeatedly use the “F-word” and the “S-word”; and (6) a movie in which the characters repeatedly use the “S-word” and variations of it.
In that same decision, the FCC determined that programming containing isolated uses of the “F-word” or the “S-word” were indecent or profane but not subject to a penalty, because existing precedent at the time the programming aired was not to take enforcement action for isolated uses of expletives. As discussed above, however, the FCC has since changed its enforcement policy in the Golden Globes Awards Order, and now isolated uses of certain expletives, such as the “F-word” or the “S-word,” are likely to result in monetary penalties.
Programming that the FCC determined not to be indecent included: (1) a scene showing a clothed man and woman in bed kissing and caressing each other (although sexual in nature it was deemed not patently offensive); (2) a male character adjusting a woman’s clothed breasts upward in order to improve their appearance (deemed funny, but not patently offensive); (3) a hernia examination in a sitcom, in which a female doctor examines a male patient’s scrotum off camera and asks him to cough; (4) a discussion of teenage sexual practices on the Oprah Winfrey Show (intended to be educational, not titillating); (5) a political advertisement referencing the rape and sodomy of children without supplying any detailed description or depiction; (6) a show in which a camera shot briefly shows the “F-word” in the barely visible background; and (7) programming containing expletives that do not relate to sexual or excretory activities or organs (such as “hell” or “damn”).
The FCC has also issued significant forfeiture penalties for radio broadcasts deemed to be indecent. For example, in April 2004 the FCC imposed a forfeiture penalty of $495,000 against Clear Channel Communications, Inc. (“Clear Channel”) for sexually explicit dialogue during the “Howard Stern Show.” Similarly, in March 2004 the FCC imposed a penalty of $247,500 against Clear Channel for sexually explicit dialogue during the “Elliot in the Morning” program. Perhaps most famously, the FCC imposed a $337,500 forfeiture against Infinity Broadcasting in October 2003 for Opie and Anthony’s “Sex for Sam” broadcasts, during which they purportedly reported on couples having sex in public places, including St. Patrick’s Cathedral in New York.
Unfortunately, there are no bright-line rules defining what will or will not be found indecent. Given the Commission’s increased forfeiture authority and heightened awareness of potential indecency violations, however, stations are erring on the side of caution. Notably, the substantial penalties discussed above were all imposed under the old law. In view of the increased penalties, one network recently issued guidelines advising producers to bleep offending words from programming, and even to pixelate lips shown uttering those words. Tape delay, which is now used regularly during “live” award shows and even during the recent baseball All-Star game, is highly recommended for the purpose of bleeping offending language from live broadcasts, whether radio or TV.
We hope this memorandum gives you some guidance to help navigate the perilous waters of FCC indecency regulation, the violation of which now carries the potential for greatly increased monetary penalties. Please feel free to consult us regarding particular situations that may arise.
1 Note that the forfeiture authority applies to broadcast programming only. The FCC does not regulate indecency over cable or satellite programming, although there have been legislative proposals to extend the Commission’s regulatory authority to such programming.
2 At one time, the FCC defined indecency by reference to “seven dirty words.” Since that time, however, the FCC has taken a broader, contextual view of indecency, noting that the “seven dirty words” are just examples of words it deems to be indecent.
3 The four major television networks and more than 800 affiliated stations recently filed suit against the FCC challenging these recent indecency decisions on the grounds that the are unconstitutional.