Apparently horrified by a three-second video clip inadvertently aired during newscast, FCC slams licensee with $325K fine

It’s been a while since we checked in on the FCC’s indecency policy. When last we did, the constitutionality of that policy remained unresolved (and, in the minds of at least two Supreme Court justices, seriously in doubt). And the FCC had cryptically announced that it had re-jiggered the policy in some undescribed way(s) that permitted the Commission to summarily dismiss (apparently in a matter of minutes, if not seconds) a million or more indecency complaints that had been sitting around for years. And the Media Bureau had invited comments on possible, unspecified, revisions to the policy.

In other words, things on the indecency front seemed as muddied as ever.

So it was something of a surprise to hear that the Commission had suddenly lowered the boom on a Roanoke, Virginia TV station, fining it the maximum – $325,000 – for a single three-second instance of alleged indecency, the broadcast of which, during a 2012 newscast, was admittedly unintended. It looks like the FCC wants to send a signal to broadcasters.

The facts are relatively straightforward.

During a 6:00 p.m. newscast, the station aired a report about the addition of a new volunteer to a local rescue squad. The focus of the report – one Tracy Rolan – happened to have starred in a long list of adult films, using “Harmony Rose” as her nom de filme. The hook of the piece was obvious: Porn star as local volunteer. Definitely an audience grabber.

To open the story, the station used an image of Ms. Rolan/Rose – more precisely, her head and shoulders, and at least one of her fingers. (According to the FCC’s description, she is seen “moving [her finger] up and down on her tongue, with her lips partially open and then closing as she appears to suck on her finger.”). The image was obtained from the website of a distributor of Ms. Rolan/Rose’s films.

Rather than use only her image, though, the station opted to display the entire webpage, which her image apparently dominated. But, as it turned out, the webpage contained additional imagery, including, along the right side of the screen, a number of “boxes” containing snippets from various films. One of those boxes included – for three seconds – the recognizable image of “a hand moving up and down the length of the shaft of the erect penis.”


We can all safely assume that the broadcast depiction of actual sexual activity, up close and personal (and, apparently, unclothed), is likely to send the FCC into DEFCON 1. Anyone who airs such content must recognize the near certainty that the FCC, prodded by complainants, will come calling, and the end result is not likely to be pretty. And that’s what happened here. Complaints rolled in almost immediately, leading to a whopping fine.

It’s easy to conclude, as the FCC has, that this particular broadcast can and should be punished, big time. Erect penises (and the manipulation thereof) are well outside the range of conventional prime-time acceptability.

But before we jump on board the FCC’s bandwagon, let’s think about this for a minute.

Exactly how the image of (in the FCC’s delicate words) “a naked, erect penis and sexual manipulation thereof” escaped the station’s attention is anybody’s guess. The guy who prepared the report advised that he “did not notice” the “small” video-laden boxes next to Ms. Rolan/Rose’s come hither image on the site. Since we don’t have a screengrab of the webpage he was looking at, we don’t know how credible that is – but let’s assume for the moment that the boxes really were relatively small and might thus have passed unnoticed (especially if the guy was focusing on the image he was looking for, i.e., that of Ms. Rolan/Rose). According to the station, the webpage – i.e., showing both Ms. Rolan/Rose and the boxes – was not fully visible on monitors in the station’s editing bay, so neither the News Director nor any other folks who reviewed the piece prior to broadcast saw the boxes.

So it’s not unreasonable for the station to claim that it did not intend to broadcast the objectionable image. (The FCC does not dispute this.) And that image appeared on-screen for only three seconds, in the particular context of a newscast. While the FCC emphasized that those factors – newscast, inadvertence, brevity – did not warrant cutting the licensee any slack at all, its claims are not unassailable.

On penalizing a station for material in its newscasts. The FCC states: “The Commission has repeatedly held that there is no exception from indecency laws for news broadcasts.” The licensee argued that the FCC hadn’t provided adequate notice as to what news programming, if any, might be subject to indecency considerations. In response, the FCC cites a 2006 decision in which the FCC did indeed say that “there is no outright news exemption from our indecency rules.” But, as in all things, context is important.

The language quoted by the FCC comes from a reconsideration decision involving an incident in which, on a CBS news program, an interviewee had used the term “bullshitter” once. In its initial consideration of the facts (in March, 2006), the FCC characterized “the S-word” (including, presumably, any variants, like “bullshitter”) as “one of the most vulgar, graphic and explicit words … in the English language”, so much so that even a single use is “shocking and gratuitous”, “particularly during a morning news interview”. So CBS was guilty of broadcasting indecency (and profanity, too).

On reconsideration eight months later, however, the Commission changed its tune: “[R]egardless of whether such language would be actionable in the context of an entertainment program, … the complained-of material is neither actionably indecent nor profane in this context [i.e., in the context of a news program].” In other words, use of “one of the most vulgar, graphic and explicit words”, a word guaranteed to shock and offend the audience with just a single appearance, was no longer indecent or profane thanks to the fact that it occurred in a newscast. In performing this U-turn, the Commission did profess not to be establishing an “outright news exemption” – but its action belied that claim.

The Roanoke station could legitimately argue that it should be entitled to similar treatment. And while graphic images of sexual activity may be viewed as somehow more offensive than mere words, the Commission appears to have painted itself into a corner on that point by its extreme characterization of “shit” as extraordinarily “vulgar, graphic and explicit” and guaranteed to shock and offend. Having effectively declared “shit” to be the absolute height of indecency, and then having given CBS a pass on its broadcast of “bullshitter”, the Commission may be hard-pressed to explain why the same should not apply to other seemingly “vulgar, graphic and explicit” indecent content.

On penalizing a station for a fleeting, three-second instance of alleged indecency. The FCC states: “[I]t was clear from Commission precedent that even brief displays of nudity could be actionably indecent.” Again, the alleged indecency in this case lasted three seconds. (Frame of reference: In Mark Ronson’s ubiquitous song “Uptown Funk”, the time it takes Bruno Mars to sing “Stop, wait a minute, fill my cup, put some liquor in it” is exactly three seconds.) That’s little more than the blink of an eye. To demonstrate that Commission precedent “clear[ly]” establishes that “brief” indecency may not be condoned, the best the Commission can do is cite a concurring opinion of Chief Justice Roberts with respect to a 2012 decision by the Supreme Court not to hear an appeal in the CBS/Janet Jackson case. With all due respect to the Commission (and to the Chief Justice), that is hardly persuasive, much less conclusive, authority. If the FCC really does have extensive “Commission precedent” on this point, it could and should have hauled it all out. The fact that it did not does nothing to shore up the Commission’s credibility on this point. (And, of course, let’s not forget that in recent years a number of judges have questioned the lawfulness of the FCC’s penalization of “fleeting” indecency – although its constitutionality has thus far escaped any conclusive judicial review.)

On penalizing a station for the inadvertent broadcast of alleged indecency. The FCC states: “Having made the choice to gather and display images from an adult film website as part of its newscast, WDJB is subject to sanction for its broadcast of actionably indecent sexual material without taking adequate precautions to avoid such result.” Granted, the station here was playing with fire when it decided to focus on an adult film actress. But it’s clear that the station did not intend to broadcast the penis-in-hand image as part of that story. Could the station have avoided this problem by being a bit more careful? Sure. But so could CBS when its interviewee (the subject of the 2006 decision mentioned above) used the grievous term “bullshitter”. No mention of “adequate precautions” was made back then: the Commission determined that no “actionable indecency” occurred even though a simple tape delay system could presumably have spared the audience exposure to the indelicate word.

In the Notice of Apparent Liability addressed to the Roanoke station, the FCC cites no precedent in which it precisely spelled out the “adequate precautions” that the licensee should apparently have taken. The Commission does rely (in a footnote) on a sentence from its March, 2006 omnibus indecency decision. But that sentence says, in relevant part, only that licensees “will be held accountable for violating federal restrictions on the willful or repeated broadcast of obscene, indecent, or profane material”. Since the Roanoke station’s broadcast was neither intentional (i.e., willful) nor repeated, it’s not clear how quoting that sentence helps the Commission here.

Nevertheless, the FCC concludes that the licensee acted “with reckless disregard for the content of its broadcast”. This is because the one guy didn’t happen to notice the allegedly indecent material, none of his superiors at the station caught it either, and the station’s editing equipment didn’t permit news personnel to make sure that the station’s audience wouldn’t be exposed to this kind of material. In the Commission’s view, that’s enough to transform the unintended broadcast into a “willful or repeated” violation worthy of a $325,000 fine. Some might view that as a stretch.

The Roanoke licensee also argued that the fact that the FCC’s indecency policy is in flux made it difficult, if not impossible, to know what the standard was. In response, the FCC observes, correctly, that the announcement that changes to the policy might be under consideration wasn’t made until April, 2013, some nine months after the broadcast. Obviously, that announcement could not have affected the station’s July, 2012 decision to broadcast the Rolan/Rose piece. And anyway, the Commission piles on, the April, 2013 announcement made clear that, notwithstanding the possibility of a change in policy, the previously established policy would remain in effect for the time being.

But wait. In that April, 2013 public notice, the Commission disclosed that, since September, 2012, it had been utilizing some alternate policy focusing strictly on “egregious” cases. And it had been applying that alternate policy to cases long pre-dating September, 2012, resulting in the summary dismissal of more than a million such cases. Since the FCC had not previously disposed of those cases – and, indeed, had in many instances declined to renew licenses because those cases were pending – the facts in each of them must have at least facially met the old standard of indecency. And yet, once the new “egregious” standard kicked in, out they all went. Doesn’t that indicate that, contrary to the FCC’s protestations, its policy had in fact changed in some respects? And if it changed, isn’t the Roanoke licensee entitled to know what the new policy is?

The FCC would likely respond that the Rolan/Rose image would have been deemed “egregious” anyway. But the Commission has never described how its new “egregious” standard works in practice, nor has it explained how more than a million long-pending allegations of indecency happened not to satisfy the “egregious” standard. That being the case, how is the Roanoke licensee to know that it is not being arbitrarily singled out here?

And then there’s the issue of the size of the fine.

Under the Commission’s rules, the standard forfeiture for violation of the indecency rules is $7,000. But the FCC may “adjust” fines upward if it believes the circumstances so warrant. And, in the wake of the Janet Jackson incident, Congress authorized the FCC to whack broadcasters up to $325,000 for indecency violations. (That figure has since been upped to $375,000, but at the time of the Roanoke broadcast it was still $325K, so that’s the max that could be imposed here.)

Starting with the $7,000 base fine, the FCC concludes that the “nature of the violation, and the Licensee’s degree of culpability and ability to pay” all justify a “significant upward adjustment”. Again, let’s bear in mind that the “nature of the violation” was an inadvertently broadcast, three-second image that was confined to a small “box” located along the side of a screen otherwise dominated by the finger-licking Ms. Rolan/Rose. And as far as “culpability” goes, the violation was admittedly unintentional; the licensee had been, at worst, merely reckless. Those factors don’t scream “We’ve got to throw the book at him”.

As to ability to pay, the licensee happens to be a large entity owning a number of media interests. It could clearly afford more than $7K.

Putting all these factors together, the Commission magically concludes that the appropriate upward adjustment happens to be a 46-fold increase. The FCC doesn’t explain the precise mathematics by which it arrives at the $325K mark. It’s probably a good guess that the Commission figured that, as long as Congress had given it fining authority up to that dollar value, the Commission might as well use all that authority.

As mentioned above, the FCC seems to be trying to send some kind of signal to the broadcast industry here. The FCC obviously wants to remind us all that it can and will penalize fleeting, unintentional instances of arguable indecency, even when those instances occur during newscasts. And it wants to let everybody know that it can and will exercise its authority to dole out $325K+ fines.

To be clear, this blogger is not advocating or defending the broadcast of graphic sexual activity (or any other programming, for that matter). But I am suggesting that any effort by the FCC to penalize any licensee because of the content of its broadcasts should be undertaken with extraordinary clarity and with extreme sensitivity to overriding First Amendment considerations. In view of the murky history of the FCC’s indecency policy, and the questionable constitutionality and somewhat chameleon-like nature of that policy, does it really make sense for the Commission to impose a maximum $325K penalty on a station guilty only of minor carelessness that led to an unintended, purely incidental, three-second miscue? If the Roanoke licensee chooses to fight the fine, we may find out.