INDECENCY 101

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INDECENCY 101

• PTPA Programmers Meeting
• Atlanta, Georgia
• May 1, 2004
• By Katherine Lauderdale
• Sr. VP and General Counsel, PBS

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I. PRE-BONO THOSE WERE THE DAYS, MY FRIEND

• A. Obscenity
• 1. Not protected by the First amendment
  and can never be broadcast legally
• 2. 3-prong test
• - appeals to prurient interest as judged by
  average person, applying contemporary community
  standards
• - depicts sexual content in patently offensive
  way, and
• - material as a whole lacks serious literary,
  artistic, political or scientific value

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• B. Indecency
• 1. Protected by the First Amendment, but
  can only be broadcast during safe haven of 10 pm
  to 6 am.
• 2. Definition language or material that, in
  context, depicts or decribes sexual or excretory
  references, in patently offensive terms measured
  by contemporary (national) community standards.

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• 3. Guidelines for determining indecency
• a. How explicit or graphic?
• b. Does the material dwell on or repeat at
  length descriptions of sexual or excretory organs
  or activities?
• c. Used to pander, titillate or shock?
• d. assess these factors in the full context in
  which the material appeared

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• C. Important Pre-Bono Case Law
• 1. Gotti use of language (f-word) in a
  news context- not indecent
• 2. Schindlers List frontal nudity not
  presented to pander or titillate when viewed in
  context- not indecent
• 3. Exception for Fleeting and isolated
  material
• D. Current Fine 27,500 per vioaltion

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II. Bono Whats New Pussycat?

• A. FCC The Facts
• Use of term f-ing brilliant in accepting
  Golden Globe award
• Mass Media Decision not indecent language is
  not used in sexual context
• Full Commission reverses staff decision
  finding the f-word the most offensive word in the
  English language it is indecent and profane and
  there may be more words
• No fine imposed

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• B. The Hill
• 1. House Bill passed full house, raises maximum
  fine to 500,000 per violation license
  revocation possible for repeated violations
  non-licensees (e.g. networks, entertainers) may
  be fined for willful and intentional utterances
• FCC may consider violators ability to pay,
  whether utterance live or recorded, prior history
  of unscripted utterances, use of time-delay
  mechanism, size of market and viewing audience

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• House Bill continued
• Broadcasters may be exempted from liability if
  material in live network feed or if local
  broadcaster not given time to review recorded
  programming
• with license renewals 3 strikes, you may be
  out even with fewer violations, it may be
  considered at renewal time

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• 2. Senate Bill passed by Commerce Committee,
  but not full Senate yet sliding scale for fines
  with 275,000 for first violation, 375,000 for
  second, 500,000 for subsequent violations with
  3M cap per 24-hour period
• Considerations regarding mitigating factors are
  similar to the House bill

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• Senate Bill continued
• Fines can be doubled (w/ 3M cap) if material
  recorded, no use of time-delay for live shows
  size of audience substantially larger than usual
  (e.g. awards program) for violations during
  childrens programming
• Hold up media consolidation-related amendment
  added to bill (declaring FCCs relaxation of
  media ownership rules invalid until completion of
  GAO report on relation between media
  consolidation and indecency

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The wake of Bono Its a Ball of Confusion

• A. Mass uncertainty as to the standard
• B. Chilling Effect on Free Speech
• C. PBS Taking a conservative approach

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IV. Whats Next Oh, Happy Day

• A. Petitions For Reconsideration of Bono
• B. Potential Court appeal on First Amendment
  grounds
• C. Legislation Wait and See
• D. FCC signals of moderation (recent Hollywood
  Wives case with fleeting nudity)