Enforcement Bureau sets out on an indecency fishing expedition, or a wild goose chase – or, perhaps more accurately, a Fox hunt.

Grab your rod, bait your hook, put on your floaties – and don’t forget the sunscreen – it looks like we’re all going on a fishing expedition, thanks to the FCC’s Enforcement Bureau!

Apparently determined to make the already murky area of indecency regulation even murkier, the Bureau has: (a) issued a Notice of Apparent Liability, to the tune of $25,000, to Fox because Fox’s response to a Bureau inquiry was not, in the Bureau’s eyes, responsive enough; and (b) issued more than 200 more letters of inquiry, addressed to all Fox affiliates. With that many hooks in the water, the FCC is obviously hoping to land a couple of big ones.

This latest twist in the on-going indecency saga began last January, with the airing of an episode of “American Dad”, a prime-time cartoon show. The episode at issue included a scene in which it was suggested, purely by implication and innuendo, that one of the animated characters was manually causing an animated horse to ejaculate. This prompted a campaign by at least one group, the Parents Television Council, to generate complaints about the show to the FCC and, sure enough, the Commission received more than 100,000 complaints.

The Bureau promptly shipped a Letter of Inquiry (LOI) out to Fox, asking a bunch of questions about the broadcast. Included with the LOI was a copy of one – and only one – complaint received by the FCC about the show. The complaint referred to the Fox O&O in Dallas. That licensee – again, it’s a station owned by the Fox organization – responded to the LOI.

The Fox LOI asked for a list of all Fox affiliates that had aired the show, as well as the Nielsen audience figures (organized by age group) for the broadcast, and information about any “parental guidelines” that were displayed in connection with the show. The Fox Dallas station provided information about its own broadcast, but declined to narc on any other affiliates because the only evidence of complaints included with the LOI was the single complaint letter identifying only the Dallas station. The station did acknowledge the various questions that it wasn’t answering, and explained why it wasn’t answering them.

The Bureau wrote back to Fox in March, advising that the Dallas licensee’s response didn’t get Fox off the hook. The Bureau gave Fox a generous five days in which to get back to the FCC with all the requested information. Sticking to its guns, Fox declined to respond to the second letter, although the Dallas Fox O&O did respond, providing some additional information (including Nielsen data).

So the Bureau produced one complaint (specifying the Dallas station) and it received responsive information about that station. 

But the Bureau – like Alex Forrest – was not going to be ignored, so it issued the NAL fining Fox $25K for not itself answering the Bureau’s inquiries. And just to show that it really means business, the Bureau sent out LOIs to each and every Fox affiliate, asking them essentially the same questions originally posed to Fox – the new LOIs even included copies of the original Fox LOI.

The one thing the new LOIs did not include was any documentation establishing that the FCC had received any complaints about any station other than the Dallas station.

The Bureau’s obvious fishing expedition reflects a curious step backward in the FCC’s approach to indecency.

Four years ago, the full Commission – that is, the boss of the Bureau – announced that it would thereafter be taking a more “restrained” approach to indecency enforcement. In particular, the FCC would be issuing fines only to stations serving markets from which the FCC had received a complaint.  The Commission has since re-stated that position several times over. (For an illustration, check out Paragraph 32 of the 2006 “omnibus” indecency decision, where the Commission referred to its “commitment to an appropriately restrained enforcement policy”. Or try Footnote 1 in the 2008 “Married By America” decision.)

Maybe the Bureau didn’t get the memo.

After all, if the Commission’s policy is not to fine stations unless the Commission has a complaint about that station (or at least that station’s market) in hand, why is the Bureau sending out letters asking which stations aired the show? Shouldn’t the Bureau first check its own files to determine what markets and/or stations were mentioned in any complaints?

In the NAL, the Bureau did attempt to justify its inquiry by saying that the FCC has the authority to engage in this kind of unbounded fishing expedition. And while the Commission does have considerable power to investigate various goings-on, the Commission – not the Bureau – has already announced the “restrained” limit on its exercise of that authority in this particular area. How, then, can the Bureau blithely ignore a policy articulated, repeatedly, by the full Commission?

And let’s not forget that the Commission’s indecency policy is currently under the microscope in two separate courts of appeals – the Second Circuit (involving the Fox case) and the Third Circuit (involving CBS). Both of those courts have already demonstrated considerable hostility to the FCC’s general indecency policy, and the FCC has defended itself by pointing to the restrained nature of its enforcement activities. The Bureau’s sweeping dragnet approach in the “American Dad” case runs dramatically counter to such claims. Ditto for the Bureau’s heavy-handed effort to slap Fox around for declining to play the Bureau’s game. If the Bureau persists with its LOIs and the $25,000 Fox fine, the Second and Third Circuits may legitimately question just how “restrained” the FCC’s policy really is – and, perhaps more dangerously from the Commission’s perspective, the courts may wonder just how reliable anything the Commission says is. (As a general rule in litigation, it’s not a good thing to be in court if the court doesn’t believe you.)

Unfortunately, the Bureau’s damn-the-torpedoes approach is representative of the arbitrariness for which the Commission’s indecency policy has been criticized for years. The problem appears to arise from the Commission’s seeming desire to be a kind of catcher in the rye, responsible for protecting everybody – and particularly kids – from all social unpleasantness. (And it bears noting that the agency’s knickers get bunched up over less-than-explicit material – “American Dad” being a case in point, since even the single complaint that the FCC has released so far acknowledges that the supposedly offensive material involved only innuendo.) The Commission’s authority to achieve such all-encompassing womb-like protection is, at best, doubtful – but that hasn’t stopped it from trying.

Ideally, the pending Second and Third Circuit cases will be resolved relatively soon, which may likely tee up one more trip to the Supreme Court, which in turn could resolve many of the longstanding indecency questions. Until that happens, since the Commission’s staff is, by most accounts, committed to stay its current course, broadcasters will continue to occasionally find themselves on the wrong end of the FCC’s fishing lines.