Broadcast Indecency, Profanity and Obscenity Presented by Todd Gray

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Broadcast Indecency, Profanity and Obscenity
Presented by Todd Gray
2007 PBMA Conference
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• Background on FCC Regulation of Indecent,
• Obscene and Profane Broadcast Material
• Obscenity may not be broadcast at any time
• Average person, applying contemporary community
  standards, finds the material, as a whole,
  appeals to the prurient interest
• Material must depict or describe, in a patently
  offensive way, sexual conduct specifically
  defined by applicable law and
• Material, taken as a whole, must lack serious
  literary, artistic, political or scientific value

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• Indecency
• Describes or depicts sexual or excretory
  activities or organs, and
• Must be patently offensive as measured by
  contemporary community standards for the
  broadcast medium, taking into account
• Explicitness or graphic nature of the
  description
• Whether material dwells on or repeats at length
  descriptions of sexual or excretory organs or
  activities and
• Whether material panders to, titillates, or
  shocks the audience

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• Indecency, continued
• Three patently offensive factors listed above
  balanced on a case-by-case basis
• The full context in which the material appeared
  is critically important
• Indecent material not actionable if broadcast
  during safe harbor of 10 p.m. to 6 a.m. local
  time

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Profanity

• Profanity
• Denotes certain of those personally reviling
  epithets naturally tending to provoke violent
  resentment or denoting language so grossly
  offensive to members of the public who actually
  hear it as to amount to a nuisance
• First applied in 2004 FCC unanimously found that
  Bonos utterance of f--king during Golden Globe
  Awards broadcast was profane
• Despite fleeting isolated use, and not used to
  describe sexual or excretory organs or activities
• Uses of f--k and s--t have been found to be
  profane and therefore actionable

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• Recent Indecency Developments
• Broadcast Decency Enforcement Act of 2005
• Signed into law by President Bush on June 15,
  2006
• Raises maximum FCC fines for broadcast of
  obscene, indecent or profane material to 325,000
• 325,000 for each violation
• Up to a maximum fine of 3,000,000

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• Recent FCC Rulings on Broadcast Indecency
  Complaints
• FCC released omnibus decision on various TV
  complaints in March 2006
• Reconsideration of certain decisions released in
  November 2006

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• March 2006 FCC Notices of Apparent Liability
• Found to be Indecent and/or Profane The Surreal
  Life 2, Spanish language movie and talk show,
  music videos, Pursuit of D.B. Cooper (movie), PBS
  Documentary The Blues, Billboard Music Awards,
  NYPD Blues, CBS Early Show, Without a Trace
• Upheld fine against CBS and its stations for 2004
  Janet Jackson Super Bowl malfunction

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• March 2006 Rulings, continued
• Found NOT to be Indecent or Profane
• Alias, Will and Grace, Two and a Half Men, Oprah,
  Family Guy, Today Show, casino commercial,
  political ad, The Simpsons, others.
• Various programs containing expletives (hell,
  damn, ass, pissed off, for Christs sake,
  slutty sister, etc.)

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• Key Developments in March 2006 Decisions Included
  FCCs Treatment of
• Graphic and pandering nudity or sexual scenes
• Any use of f--k and s--t, and derivatives
• Unless in narrow contexts (such as expletives
  uttered by American soldiers under fire)
• Even if no meaningful association with excretory
  or sexual functions
• Little or no leeway for serious programming on
  cultural/artistic topics

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• Other Notable Developments in March 2006
  Decisions
• For the first time, a PBS presentation (a
  documentary) found to be indecent, as well as
  profane
• First occasions in which the FCC analyzed
  advertisements under its indecency standards
• In almost all cases, the FCC proposed the highest
  possible statutory fines, rather than merely the
  traditional base fines

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• November 6, 2006 FCC Order
• Revisited complaints against Billboard Music
  Awards, NYPD Blue, and CBS Early Show
• Upheld findings that f--k and s--t in
  Billboard Music Awards were indecent and profane
• Reversed violation for bulls--t on CBS Early
  Show because bona fide news program
• Reversed violation for bulls--t on NYPD Blue
• On procedural grounds (complaint not filed by
  viewers of station in question)

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• Noteworthy Developments in FCCs November 2006
  Order
• Recognized possible human error in using delay
  equipment
• Reinforced profanity analysis
• Decided to proceed with caution in evaluation of
  complaints involving news programming

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• Legal Challenges
• Two Federal Appeals Court challenges to the FCCs
  rulings are on-going
• CBS challenge in the 3rd Circuit U.S. Court of
  Appeals in Philadelphia
• Fox challenge in the 2nd Circuit U.S. Court of
  Appeals in New York
• Decisions could come in 2007

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• FCC May Refrain from New Indecency Rulings
  Pending Court Outcomes
• Such as Bushs use of s--t at 2006 G-8 summit
• Broadcast un-edited by some TV and radio
  stations, including some public broadcasters

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• Precautionary Advice
• Delay live broadcasts and block offensive
  programming
• Preview controversial/questionable programming
• Attempt to include indemnification protection in
  contracts
• Require advance notice from content providers
• Revise personnel manuals

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Questions? Comments? Thank you. Todd
Gray 202-776-2571 tgray_at_dowlohnes.com