Indecency with a Spanish Accent?

Consent decree with Liberman Broadcasting allows FCC to avoid having to spell out how indecency policies apply to Spanish-language programming.

Something – it’s hard to say exactly what – recently occurred on the indecency front.  I learned about it first at the Impact Awards ceremony presented by the National Hispanic Media Coalition (NHMC).  NHMC President/CEO Alex Nogales announced excitedly that Commissioner Jessica Rosenworcel (who was being honored that night) had brought “good news” about a matter in which NHMC was involved.  The news: the FCC had entered into a consent decree with Liberman Broadcasting to resolve a complaint, filed by NHMC (along with the Gay & Lesbian Alliance Against Defamation (GLAAD)), targeting the Spanish-language TV talk show “José Luis Sin Censura” (translation: “José Luis Uncensored”).  Liberman’s Los Angeles-area TV station had broadcast the Luis show, complete with images and language that NHMC and GLAAD thought were indecent.  (It stopping airing the show in 2012.)

I wrote about the complaint when it was filed back in 2011.  NHMC and GLAAD alleged the repeated use of sexually-oriented terms such as “pinche” and “culero”, along with anti-gay epithets (“maricón”, “joto”, “puñal”) and anti-Latino slurs (e.g., “mojado”).  They also suggested that the FCC might be applying different indecency standards – or at least different enforcement policies – against Spanish-language programming as opposed to the English-language equivalent.  (That last point is one that I had been asked to address by Billboard in a 2006 article – demonstrating that the NHMC/GLAAD concerns were neither new nor unique to them.)

So what did the FCC do to Liberman?

It let Liberman cop a plea and avoid being found guilty of any violations, BUT it also exacted from Liberman a $110,000 “voluntary contribution” and imposed on Liberman a three-year “comprehensive compliance plan”.  You can decide for yourself whether or not Liberman got off easy.

Consent decrees are unusual creatures.  They are basically plea bargains in which the licensee admits certain violations and agrees to make a “voluntary contribution” to the United States Treasury.  Calling Liberman’s agreement to pay $110,000 “voluntary” is kind of like calling a plea bargain for five years in prison a “voluntary contribution of your leisure time”.   But that’s how consent decrees work. 

The benefit of such a deal for Liberman is that the consent decree brings the whole matter to an end and removes the cloud from Liberman’s FCC licenses.  With the ongoing uncertainty over the state of the FCC indecency rules, such a cloud can linger a very long time, leaving license renewals and assignment applications in limbo and thus indirectly complicating other business activities (such as re-financings).  There is clearly a considerable practical benefit to be gained from concluding an indecency investigation.

And there were benefits to the Commission as well. The Liberman settlement is noteworthy particularly because it comes at a time when the FCC’s indecency rules and policies are in a state of flux – thanks to court decisions which have questioned or rejected the rules and policies the Commission has historically applied.  The consent decree seems to reflect uncertainty on that front: Liberman admits only that it “inadvertently violated the Commission’s interpretation of its indecency regulations and requirements in force at the time of such actions”, an obviously qualified admission of guilt.  The fact that the FCC accepted this may signal an acknowledgement by the agency that its requirements were indeed ambiguous, or worse.

Unfortunately for the rest of us, the consent decree sheds no light on the broader question of how the FCC interprets and enforces its indecency policies with respect to Spanish-language programming.  While the NHMC/GLAAD complaint provided extensive documentation of the content of José Luis Sin Censura, the consent decree does not describe the specific content that triggered the complaint.  (If you’re curious, you can view a copy of the 173-page complaint here.  Be careful – there are some pixilated-but-still-probably-NSFW screen shots adorning the first few pages.) 

More importantly, the decree does not itemize the portions of that programming that the Enforcement Bureau felt to be contrary to the Commission’s indecency policies.  As a result, we still don’t know precisely what Spanish terms may be “indecent” in the FCC’s view, and we don’t know how the FCC might have made that determination here or how it will make it in the future. 

We do know two things, though.  First, the consent decree makes clear that the FCC will enforce its indecency policies against Spanish-language broadcasts (even if we don’t know how it will do so).  And second, Liberman was willing to pay $110,000 – and commit itself to a reasonably burdensome “compliance plan” – to achieve a result that, among other things, relieved the Commission of the immediate need to answer that latter question.

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