Indecency Alert: New Unannounced "Egregiousness" Standard Now Apparently in Effect, But More Changes May Be On the Way, Eventually

Odd public notice also touts herculean accomplishment: summary dismissal of “more than one million” pending indecency complaints

In a public notice that surely ranks among the most bizarre any of us are likely to see, the FCC’s Enforcement Bureau and General Counsel have made three startling announcements about the Commission’s broadcast indecency policy. According to the notice, for the last seven months or so the Enforcement folks have been applying a new – but not formally announced – standard of “indecency” which is not subject to any official definition, as far as we can determine. And while the Enforcement Bureau and GC both commit themselves to continuing to implement that undescribed “standard”, they have now initiated, in a semi-comic way, an inquiry into some possibly significant changes to major elements of the Commission’s indecency policy.

This could have been an April Fool’s Day prank, but we’re guessing it wasn’t.

To get ourselves oriented here, let’s all agree that the FCC’s decades-long effort to regulate “indecency” is a Big Deal in communications jurisprudence. Where FCC-related issues seldom get to the Supreme Court, indecency has been there, twice, in the last four years. Few subjects have triggered the same level of hand-wringing, saber-rattling bloviation on the part of various commissioners, elected officials and others over the last decade.

In its most recent review of the FCC’s indecency policy, the Supreme Court managed to dodge a First Amendment challenge to that policy by focusing instead on a Fifth Amendment challenge.  In particular, in June, 2012, a unanimous court reminded the FCC in no uncertain terms that, if it wants to enforce rules or policies proscribing the broadcast of “indecency”, the Commission must provide broadcasters with clear prior notice about just what constitutes “indecency” in this context. 

In that case, the FCC was attempting to prosecute a couple of licensees who had aired “fleeting expletives” or “fleeting nudity”, i.e., incidental slips of extremely limited duration. At the time of those broadcasts, the FCC’s policy had been to ignore such “fleeting” material. But reacting to the Outrage that was the 2004 Super Bowl half-time show – featuring a half-second, long-distance glimpse of (gasp!) much of Janet Jackson’s right breast – and emboldened by the firestorm of political reaction to that glimpse, the Commission had since decided that even the merest soupçon of “indecency” should be prohibited. The licensees argued, among other things, that they had not been given adequate notice of the FCC’s indecency standards.

To be sure, the Supremes allowed the FCC to continue to regulate “indecency” – but the Court’s clear and unmistakable take-home message to the Commission was that, in so regulating, the FCC would have to provide affected regulatees clear notice of what constitutes “indecency”.

That was in June, 2012. According to the recent public notice, three months later Chairman Genachowski “directed” the Enforcement Bureau to “focus its indecency enforcement resources on egregious cases”.

There are at least two massive problems with that. 

First, whatever Genachowski may have told the Enforcement folks, he didn’t do it in any officially public way – that is, in a way that might provide clear notice to potentially affected broadcasters. We searched various archives for any indication that the Genachowski-directed enforcement standard might have been formally announced – say, in a public notice, or a declaratory order, or even in a published statement from the Chairman’s office. We came up empty-handed, although our colleague, Peter Tannenwald, did manage to find three trade press articles – one in Broadcasting and Cable, one in TVWeek, one in TheWrap.com – that referred to a statement credited to Genachowski, albeit without specifics as to how anybody might track that statement down to confirm it (much less understand it).

Second, even if the Chairman’s “direction” to the Enforcement Bureau was accurately reported, what are we left with? Nothing more than the general notion that, apparently, the FCC’s enforcement machine will now be focused primarily on “egregious cases”. Do you have any idea what that means? Neither do we.

All we know is that, for the past seven months or so and going forward into the foreseeable future, the “new” indecency standard has centered and will center on the essentially undefined concept of “egregiousness”. Even if that concept had been clearly defined – which it hasn’t – it’s probably safe to say that, before the joint Enforcement/General Counsel notice on April 1, 2013, many, if not most, broadcasters were unaware of the new “egregiousness” notion at all. 

Um, isn’t that precisely the type of thing the Supreme Court warned the Commission not to do?

But not to worry, because in their public notice, the Enforcement Bureau and General Counsel are now asking for our thoughts on “whether the full Commission should make changes to its current broadcast indecency policies or maintain them as they are.” 

Can we all agree that it’s odd for two subordinate offices within the Commission to suggest that the full Commission – which is, of course, the boss of those two offices – should change its rules and policies? Ordinarily, the Commission itself decides whether (and if so, how) it might want to effect such changes. What are we to make of the public notice on that score?

It’s probably a safe assumption that somebody on the Eighth Floor approved the public notice, so let’s figure that the FCC really is thinking about changing its approach to indecency in some way. What might it have in mind? Here’s the totality of what the public notice has to say about that:

[S]hould the Commission treat isolated expletives in a manner consistent with our decision in Pacifica Foundation, Inc., Memorandum Opinion and Order, 2 FCC Rcd 2698, 2699 (1987) (“If a complaint focuses solely on the use of expletives, we believe that . . . deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.”)? Should the Commission instead maintain the approach to isolated expletives set forth in its decision in Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, Memorandum Opinion and Order, 19 FCC Rcd 4975 (2004)? As another example, should the Commission treat isolated (non-sexual) nudity the same as or differently than isolated expletives? Commenters are invited to address these issues as well as any other aspect of the Commission’s substantive indecency policies.

The first three sentence-questions suggest that the primary change contemplated here involves the problem of “fleeting” indecency. But the final sentence opens up for discussion the entire range of indecency-related issues. 

Curiously, the headline of the public notice claims that the FCC is "seek[ing] comment on adopting egregious cases policy".  Since the notice does not provide any definition of that "policy", and since the specific request for comments (quoted above) doesn't even mention that "policy", it's hard to know what to make of the headline.

In any event, the utility of any record likely to be compiled in response to the notice's nebulous invitation is dubious. How, after all, is a commenter supposed to organize his/her/its comments in a coherent and useful way? And how can the Commission’s staff be expected to process those comments? Without any apparent context or direction, it’s hard to see what the staff can do with them.

So what’s the point of the public notice?

Actually, the notice includes one other component, possibly intended to distract the reader while burnishing the reputation of the soon-to-be-departed Chairman. That component consists of one sentence (and a part of the headline) touting the fact that, since last September, the Commission has supposedly reduced its backlog of pending indecency complaints “by 70%”, which the notice quantifies as “more than one million complaints”. Truly a herculean accomplishment!

Now that’s a bit of good news. Anytime the agency is able to clear out a backlog to that extent, some applause is warranted, so we can all give it up for the Commission on this point.

But wait.

According to the notice, the 1,000,000+ complaints that have been tossed involved mainly “complaints that were beyond the statute of limitations or too stale to pursue, that involved cases outside FCC jurisdiction, that contained insufficient information, or that were foreclosed by settled precedent”. Maybe we’re missing something, but shouldn’t complaints “outside FCC jurisdiction” or “contain[ing] insufficient information” or “foreclosed by settled precedent” have been tossed even before they got into the FCC’s system?

Let's do some math.

If the staff has had 212 days (i.e., September 1, 2012-March 31, 2013) to determine that more than 1,000,000 complaints could be summarily tossed, that means that the staff managed to handle more than 4,700 complaints a day – assuming that the staff was working seven days a week. At eight hours per working day, that in turn means that the staff was grinding through those complaints at nearly 600 per hour, or 10 per minute – one every six seconds. (If we assume that the staff was working 24/7, that number would drop to a paltry 195 or so per hour, still more than three per minute.)

Which prompts us to ask: how was the backlog allowed to balloon as it had? If it took only a matter of seconds to determine that a complaint could be dismissed, why wasn’t that done a long, long time ago?

And speaking of the passage of time, complaints that “were beyond the statute of limitations” should not have taken even seconds to identify. They could have been automatically thrown out as soon as the relevant statute of limitations date came and went.

So while we do sincerely appreciate the clearing out of 1,000,000+ complaints, we’re not sure why the FCC might think that it's entitled to any particular kudos for that achievement. 

That’s especially true in view of the fact that the public notice touting that supposed achievement is totally silent with respect to the effect that the backlog had on broadcasters. Licensees who were the subject of pending complaints did not get their licenses renewed, and weren’t permitted to sell their stations, until the complaints were resolved . . . unless, of course, the licensee was willing to enter into a “tolling agreement” by which it would waive a number of its rights. And if a licensee was trying to sell all of its broadcast interests and exit the business, it was required to pony up a big wad of cash for an “escrow arrangement”. One hopes that any licensee who might have been required to enter into such a deal because of one or more of the now-dismissed complaints has been expressly and immediately released from the terms of any such deal. 

An accompanying apology might be nice, too.

The public notice is going to be published in the Federal Register. Once that happens, comments in response to the questions posed about indecency regulation will be due within 30 days, and reply comments within 60 days. Check back here for updates.

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