If ever there was a time for Congress to review the statutory role and effectiveness of the Federal Communications Commission in upholding standards of decency in broadcasting, it is now.
Radio stations that provide national and local platforms for grossly vulgar "shock jocks" have little to fear from the FCC; and no broadcast TV station has paid an indecency fine in over 20 years. By the end of this year, only Chairman Michael Powell may remain from the present Commission. Enforcement of the broadcast indecency law does not appear to be one of Mr. Powell's priorities.
On April 6, the FCC released a POLICY STATEMENT to provide guidance regarding "our case law interpreting 18 USC 1464 and our enforcement policies with respect to broadcast indecency." In 1994, the FCC agreed in federal court to publish such guidance but did not do so. Unable to bring indecency enforcement actions in court because of this failure, the FCC allowed the statute of limitations to run in three cases, even though it issued Notices of Apparent Liability.
In addition to clarifying the indecency standard, the STATEMENT reiterates the FCC "enforcement policies," including the following:
"The Commission does not independently monitor broadcasts for indecent material...[C]omplaints must generally include: (1) a full or partial tape or transcript or significant excerpts of the program...If a complaint does not contain the supporting material...it is usually dismissed."Morality in Media does not expect the FCC to monitor all broadcasting for possible violations of the indecency law. But if the FCC can monitor TV programs to ensure compliance with ad limits during children's programming (see Public Notice, released 20 May 98), it can monitor to ensure compliance with the indecency law. We would add that on April 24, the Federal Trade Commission issued a follow-up report on the marketing of violent entertainment to children. In the FTC Release describing the report, we find the following: "This review, unlike the original study, relied on advertising monitoring rather than internal documents."
[MIM ed. note: "must generally" and "usually" are best understood to mean must and always.]
There is also no justification (statutory or constitutional) for requiring complainants to provide tapes or transcripts. Commissioner Gloria Tristani criticized this self-imposed barrier to effective enforcement in a May 18, 2000 Press Statement:
The Commission appears so averse to indecency cases, and has erected so many barriers to complaints from members of the public, that indecency enforcement has become almost non-existent. For instance, if a member of the public wants to file an indecency complaint, the Commission generally requires them to submit tapes, transcripts or significant excerpts of the offending material. This is surely an unreasonable burden to impose on the public. It means that the public cannot be protected from indecency on the public airwaves unless they have the foresight to have a tape recorder running when the offending language is broadcast.(Links to other Tristani statements on FCC indecency enforcement:
We assume there will be instances when the FCC must rely on complainants to provide a tape or transcript. But most TV programs are taped by licensees or program providers. Why then does the FCC routinely dismiss complaints about TV indecency because they do not include tapes or transcripts -- when the FCC can obtain them from the licensee or provider?
There is also no justification for the FCC's failure in appropriate cases to revoke or deny renewal of a license. Even the programming of radio "shock jocks" has not moved the FCC to revoke or refuse to renew a license. But as the Supreme Court pointed out in FCC v. Pacifica (1978):
"The prohibition against censorship unequivocally denies the Commission any power to edit proposed broadcasts in advance ... The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duty ... Judge Wright forcefully pointed out that the Commission is not prevented from canceling the license of a broadcaster who persists in a course of improper programming. He explained:Nor is there justification for the FCC's failure to levy fines in sufficient numbers or amounts to deter violations. It would appear that the FCC issues just enough Notices of Apparent Liability relating to indecent radio broadcasts to deflect most criticism, but never enough in numbers and in amounts to deter indecent programming.'This would not be prohibited "censorship,"...any more than would the Commission's considering on a license renewal application whether a broadcaster allowed "coarse, vulgar, suggestive, double-meaning" programming; programs with such material are grounds for denial of a license renewal.'
And TV licensees might as well have diplomatic immunity as far as broadcast indecency is concerned. When it comes to ever increasing amounts (and explicitness) of TV sex and vulgarity, the FCC's inexplicable policy is: "See no evil, hear no evil."
It is time for Congress to exercise oversight of the FCC before the transformation of broadcasting is complete -- from a medium that should be serving the public interest, into one that is polluting the public airwaves and endangering the welfare of children.
The Senate should question President Bush's Commission nominees about their views on TV sex, vulgarity and violence and on enforcement of the broadcast indecency law. Senate and House Committees must also conduct hearings to get answers to these questions:
We are confident that the American people will fully support your diligent efforts to curb patently offensive, indecent programming on broadcast radio and television.
ROBERT PETERS
President
PETER KNICKERBOCKER
Vice President
PAUL J. McGEADY
General Counsel