The Parents Television Council is not happy with the FCC's
announcement Monday that it would collect public comment on its application of
an "egregious" standard to indecency complaints.
Using that standard, signaled by FCC chairman Julius
Genachowski last September after the FCC declined to continue Fox for
nonpayment of an indecency fine, the FCC's Enforcement Bureau says it has
dismissed more than a million indecency complaints, or 70% of a backlog that
had built while the FCC was defending its "fleeting" indecency regime
in the courts.
In a statement, PTC president Tim Winter took aim with what
he said had already been the "unilateral" adoption of that
"egregious" standard by either the chairman or the Enforcement Bureau
without notice or public comment, which he called "an outrage." PTC
has filed a half dozen indecency complaints in the past three and a half years.
"The FCC's announcement is deeply vexing for at least
three reasons," said Winter. "It unnecessarily weakens a decency law
that withstood a ferocious, ten-year constitutional attack waged by the
broadcast industry. It invites yet another wave of special interest pressure to
obviate the intent of Congress and the will of the American people. And it
connotes a change in indecency enforcement policy at the FCC that nobody knew
about...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."
Actually, B&C reported in February that the
September announcement signaled the chairman's desire to dodge the pressure to
resume a crackdown on indecency, and instead keep its attention focused on
broadband.
A commission source speaking not for attribution said the
FCC had closed the book on many of those million complaints because after years
of litigation-imposed delay, the factual records underlying the cases were
deemed too stale. Other cases were closed because the underlying
complaints addressed matters beyond the FCC's jurisdiction - such as
programming on satellite or cable, or broadcasts during the "safe harbor:
hours (between 10 pm and 6 a.m.), or were foreclosed by existing
precedent."
The FCC, which has asked for input on whether it
should formally adopt the "egregious" standard, did not define that
standard, although it did release a 2001 FCC enforcement
policy statement with examples it indicated would be egregious. While that
guidance suggested repetition was part of egregiousness that would trigger
bigger fines, the FCC source said that something would not have to be repeated
to be indecent. "[R]epetition may be an element of determining whether a
case is egregious, but the context and content matter so that some material
could be considered egregious even if only broadcast once and not repeated."
