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Broadcast Indecency, Profanity and Obscenity Presented by Todd Gray 2007 PBMA Conference: Background on FCC Regulation of Indecent, Obscene and Profane Broadcast Material Obscenity may not be broadcast at any time

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Presentation Transcript
slide2
Background on FCC Regulation of Indecent,

Obscene and Profane Broadcast Material

Obscenity may not be broadcast at any time

Average person, applying contemporary community standards, finds the material, as a whole, appeals to the prurient interest;

Material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and

Material, taken as a whole, must lack serious literary, artistic, political or scientific value

slide3
Indecency

Describes or depicts sexual or excretory activities or organs, and

Must be patently offensive as measured by contemporary community standards for the broadcast medium, taking into account:

Explicitness or graphic nature of the description;

Whether material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and

Whether material panders to, titillates, or shocks the audience

slide4
Indecency, continued

Three “patently offensive” factors listed above balanced on a case-by-case basis

“The full context in which the material appeared is critically important”

Indecent material not actionable if broadcast during “safe harbor” of 10 p.m. to 6 a.m. local time

profanity
Profanity

Denotes “certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance”

First applied in 2004: FCC unanimously found that Bono’s utterance of “f--king” during Golden Globe Awards broadcast was profane

Despite fleeting & isolated use, and not used to describe sexual or excretory organs or activities

Uses of “f--k” and “s--t” have been found to be profane and therefore actionable

Profanity
slide6
Recent Indecency Developments

Broadcast Decency Enforcement Act of 2005

Signed into law by President Bush on June 15, 2006

Raises maximum FCC fines for broadcast of obscene, indecent or profane material to $325,000

$325,000 for each violation

Up to a maximum fine of $3,000,000

slide7
Recent FCC Rulings on Broadcast Indecency Complaints

FCC released omnibus decision on various TV complaints in March 2006

Reconsideration of certain decisions released in November 2006

slide8
March 2006 FCC Notices of Apparent Liability

Found to be Indecent and/or Profane: The Surreal Life 2, Spanish language movie and talk show, music videos, Pursuit of D.B. Cooper (movie), PBS Documentary – The Blues, Billboard Music Awards, NYPD Blues, CBS Early Show, Without a Trace

Upheld fine against CBS and its stations for 2004 Janet Jackson Super Bowl “malfunction”

slide9
March 2006 Rulings, continued

Found NOT to be Indecent or Profane:

Alias, Will and Grace, Two and a Half Men, Oprah, Family Guy, Today Show, casino commercial, political ad, The Simpsons, others.

Various programs containing expletives (“hell,” “damn,” “ass,” “pissed off,” “for Christ’s sake,” “slutty sister,” etc.)

slide10
Key Developments in March 2006 Decisions Included FCC’s Treatment of:

Graphic and pandering nudity or sexual scenes

Any use of “f--k” and “s--t”, and derivatives

Unless in narrow contexts (such as expletives uttered by American soldiers under fire)

Even if no meaningful association with excretory or sexual functions

Little or no leeway for serious programming on cultural/artistic topics

slide11
Other Notable Developments in March 2006 Decisions:

For the first time, a PBS presentation (a documentary) found to be indecent, as well as profane

First occasions in which the FCC analyzed advertisements under its indecency standards

In almost all cases, the FCC proposed the highest possible statutory fines, rather than merely the traditional base fines

slide12
November 6, 2006 FCC Order

Revisited complaints against Billboard Music Awards, NYPD Blue, and CBS Early Show

Upheld findings that “f--k” and “s--t” in Billboard Music Awards were indecent and profane

Reversed violation for “bulls--t” on CBS Early Show because bona fide news program

Reversed violation for “bulls--t” on NYPD Blue

On procedural grounds (complaint not filed by viewers of station in question)

slide13
Noteworthy Developments in FCC’s November 2006 Order:

Recognized possible human error in using delay equipment

Reinforced profanity analysis

Decided to proceed with caution in evaluation of complaints involving news programming

slide14
Legal Challenges

Two Federal Appeals Court challenges to the FCC’s rulings are on-going:

CBS challenge in the 3rd Circuit U.S. Court of Appeals in Philadelphia

Fox challenge in the 2nd Circuit U.S. Court of Appeals in New York

Decisions could come in 2007

slide15
FCC May Refrain from New Indecency Rulings Pending Court Outcomes

Such as Bush’s use of “s--t” at 2006 G-8 summit

Broadcast un-edited by some TV and radio stations, including some public broadcasters

slide16
Precautionary Advice:

Delay live broadcasts and block offensive programming

Preview controversial/questionable programming

Attempt to include indemnification protection in contracts

Require advance notice from content providers

Revise personnel manuals

slide17

Questions?

Comments?

Thank you.

Todd Gray

202-776-2571

tgray@dowlohnes.com