Whenever we report on FCC indecency decisions, it is always an interesting test of our subscribers’ spam filters. I am betting today’s FCC enforcement action will trigger more than its share of spam alerts.
In recent years, the FCC has been less active in issuing indecency fines as it struggles to draw a line between permissible and impermissible broadcast content that the courts will support. As a result, it has been relying more heavily on consent decrees, in which the alleged violator agrees to make a payment to the government and institute a compliance program in return for the FCC agreeing to terminate its investigation. By pursuing this path, the FCC avoids having to defend its indecency rules in court, and the alleged violator can sidestep a costly and uncertain appeal process.
Sometimes, however, the FCC channels Justice Potter Stewart in his famous view of obscenity: “I know it when I see it.” Today was just such an occasion, where the FCC proposed the maximum statutory fine of $325,000 for a station that appears to have unintentionally crossed the FCC’s indecency line.
WDBJ(TV), Roanoke, Virginia, aired a story in its newscast about “a former adult film star who had joined a local volunteer rescue squad.” To illustrate the story, the photojournalist preparing the report included a video screen grab of an adult website showing the subject of the report (who was neither nude nor engaged in sexual activity).
In the analog small-screen world of a prior generation, that would have been the end of it. However, living in a big-screen, high definition world, viewers noticed something that the station had missed. According to the FCC, “[t]he website, which was partially displayed along with the video image, is bordered on the right side by boxes showing video clips from other films that do not appear to show the woman who is the subject of the news report.”
Unfortunately for the station, one of those boxes showed “a video image of a hand stroking an erect penis.” As an aside, the decision is worth reading purely to see the variety of ways the FCC finds to describe this content.
The licensee of the station noted that “the smaller boxes, including the image of the penis, were not visible on the monitors in the Station’s editing bay, and therefore, the Station’s News Director and other management personnel who had reviewed the story did not see the indecent material prior to the broadcast.” It also noted that the video appeared for less than three seconds of the three minute and twenty second story.
The FCC apparently had no trouble seeing it, however, finding that the video met the definition of “indecency” in that it was “material that, in context, depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium.” Because the content aired in the newscast at approximately 6pm, the FCC found that it did not fall within the 10pm-6am safe harbor in which indecent material may normally be aired, and therefore merited enforcement action. While the base fine for indecency is $7,000, the FCC found that “the patently offensive depiction of graphic and explicit sexual material obtained by the Station from an adult film website–is extreme and grave enough to warrant a significant increase from the $7,000 base forfeiture amount.” Building up steam, the FCC proceeded to throw more adjectives at it, finding that the content was “extremely graphic, lewd and offensive, and this action heightens the gravity of the violation and justifies a higher forfeiture.”
In proposing, for the first time ever, the maximum statutory fine of $325,000, the FCC added insult to injury, accusing the station of having a small monitor:
We also consider WDBJ to be sufficiently culpable to support a forfeiture. As discussed above, WDBJ broadcast material obtained from an online video distributor of adult films but failed to take adequate precautions to prevent the broadcast of indecent material when it knew, or should have known, that its editing equipment at the time of the apparent violation did not permit full screen review of material intended for broadcast. In addition, the indecent material was plainly visible to the Station employee who downloaded it; he simply didn’t notice it and transmitted it to Station editors who reviewed the story before it was broadcast.
While it’s clear the FCC didn’t have any qualms in pursuing this particular case, it does raise practical questions for broadcasters in less unusual circumstances. For example, might the FCC find a station airing crowd shots at a live sporting event guilty of willful indecency because its monitoring equipment was not large enough to detect that a few members of the crowd were being over-enthusiastic in trying to draw the attention of the kiss-cam? Stations in an analog world could usually rely on the low resolution of the medium to solve “background problems” like adult magazines in the background of a bookstore interview. Similarly, small images in a panning shot of the bookstore would be off the screen so quickly that viewers wouldn’t notice them or couldn’t be sure of what they had seen. In a hi-def world where DVRs make it possible for viewers to replay and analyze video frame by frame, stations must be conscious of every corner of every frame. It’s admittedly not an intuitive response at a time when broadcast stations are increasingly focusing on reaching the mobile audience watching tiny screens rather than on big-screen home viewers.
So what should broadcasters take away from this? Well, as station engineers head to the NAB Show in Vegas in a few weeks, they have a great story to tell their General Managers as to why they need to buy newer and bigger 16:9 studio monitors. As for me, media lawyers are often called upon to assess broadcast content for indecency, so I’m polishing my “guess we need a bigger TV” pitch for my wife. She’s a communications lawyer; she’ll understand.
Comm Law Center
