More than 100,000 public comments have been filed at the
FCC on whether the agency should relax some of its broadcast indecency
rules even slightly. The bulk of the comments are short and read
something along the lines of this, from one citizen: “I am completely
opposed to the FCC further allowing another level of moral decay on the
The commission in April said it had reduced its indecency complaint
backlog by some 70 percent, eliminating more than 1 million complaints,
though this was mainly by closing those that were too stale to pursue.
The agency then asked for public input on whether it should adopt an
“egregious cases” policy, implying it would focus less on fleeting or
isolated indecency incidents.
Public comments to GN Docket 13-86 were due June 19; the commission is taking reply comments through Aug. 2.
Here are excerpts capturing some common themes from broadcasters, industry and public advocacy groups:
BASIS FOR ‘INDECENT’ SPEECH LIMITS UNDERMINED
National Association of Broadcasters: In the 35 years since the Supreme Court’s decision in FCC v. Pacifica,
the rationale for broadcaster-specific limits on “indecent” speech has
crumbled under the weight of changes in technology and media
consumption. Specifically, with regard to the government’s concern that
children may be exposed to adult-oriented or otherwise inappropriate
material, there is no principled way to focus solely on broadcast
Children in particular enjoy unfettered access to content via devices
that they carry in their pockets and backpacks — access that usually
involves no subscription or special parental involvement. In this
environment, the constitutionality of a broadcast-only prohibition on
indecent material is increasingly in doubt.
Center for Democracy & Technology, Electronic Frontier Foundation, Public Knowledge, TechFreedom: The commission's proposal that it will only address “egregious”
incidents of indecency is a step in the right direction. But this is not
enough. [W]e urge the commission to do as little harm as possible to
First Amendment values by quickly issuing a new enforcement policy that
provides clarity and predictability to broadcasters. Broadcast speakers,
like all speakers, should not have to defend themselves against vague
and subjective accusations.
[W]e believe that it is simply a matter of time before the Supreme
Court strikes down indecency regulation once and for all. Whatever the
future of broadcasting might be, there is no question that broadcasters
have the same First Amendment rights as other speakers.
COMPLAINT PROCESS BURDENS SMALL …
Morgan Murphy Media, submitted by its Washington counsel: The complaint-driven process shifts significant costs to broadcasters
when meritless complaints are filed, and the Enforcement Bureau’s
policies place significant pressure on broadcasters to sign away
important rights as the cost of conducting legitimate business before
the commission. The current system permits the filing of informal
indecency complaints against broadcasters without any showing that the
complaint is bona fide, not frivolous. As Morgan Murphy and
others have found, the filing of an indecency complaint with the FCC may
result in the Enforcement Bureau placing a hold on applications
subsequently filed by the broadcaster in the ordinary course.
… PUBLIC …
National Public Radio: For responsible producers of broadcast programming, the consequences
have been significant. NPR, its members and other public radio
broadcasters have been forced to reconcile the sometimes competing
demands to produce programming that serves the public interest while
avoiding broadcasting indecent or profane matter. Because the public
interest may require the use of language or other broadcast matter that
is potentially objectionable to some, the task is far more challenging
than simply employing a delay system.
News and public affairs programs, in particular, require the producer
to make editorial determinations based on the issue(s) being addressed,
the substance of the programming and the make-up and needs of the
station’s listeners. The commission’s enforcement approach has made
those determinations significantly more difficult.
… AND COLLEGE STATIONS
KUCR—FM, Riverside, Calif., submitted by John Crigler, Garvey Schubert Barer: KUCR is concerned, that with all the training, all the precautions,
all the good faith, intelligence and devotion of our volunteer staff,
and an 8-second delay — with all of that — accidents may still occur.
For KUCR, with its small budget, an indecency fine would be
catastrophic. The legal costs of responding to an FCC inquiry would be
crippling, even if no fine were imposed. Clearly, the maximum $325,000
per incident fine is meant to chasten a corporate broadcaster who may
have previously viewed a mere $32,500 fine simply as a cost of doing
business by providing a racy language edge in the competitive world of
drive-time morning zoo sensationalistic commercial radio.
The punishment for a small broadcaster in no way fits the violation.
FCC SHOULD ‘TRIAGE’ COMPLAINTS
Saga Communications: Saga urges the commission to implement a “triage” system to
discourage frivolous or unsubstantiated complaints and to identify
“cookie cutter” indecency complaints. These complaints clog the system
and harm the public interest by wasting scarce commission resources.
[Q]uickly review complaints as they come in and separate them into the following categories:
• Those that are not likely to result in a sanction, or are
unsupported by probative evidence, even if the underlying facts are
• Those that are likely to result in a sanction, if the underlying facts are true and supported by probative evidence.
Complaints in the second category may be further subdivided into:
• Those that are serious enough to merit an “enforcement hold” on the station; and
• Those that merit a sanction, but are not so serious to merit an enforcement hold.
PROCESS NEEDS REFORM
Beasley Broadcast Group, Eagle Creek, Entercom Communications, Galaxy
Communications, Greater Media, Journal Broadcast Group, Lincoln
Financial Media and Ramar Communications, submitted by their attorneys
at Lerman Senter: If the FCC believes it necessary to continue to regulate in this
area, not only should the substantive policies relating to indecent
content be changed, indecency-related processing rules should also be
overhauled. The current processing scheme is far too imprecise, costly
and time consuming. To improve the processing of indecency-related
complaints, the commission should only entertain documented complaints
against specific stations from bona fide viewers and listeners. Such
documentation has previously taken the form of either a tape or a
transcript. Undocumented allegations of complainants should not be
credited, particularly when there is no way to establish what material
National Association of Broadcasters: Procedural reforms to indecency enforcement practices are needed. In
particular, the commission should: (i) dispose of clearly
non-meritorious complaints very quickly; (ii) proceed with enforcement
inquiries only where complaints have been submitted by a complainant
with first-hand knowledge of the programming at issue and contain
sufficient information and supporting documentation; (iii) increase
transparency by notifying broadcasters of both the filing of indecency
complaints and the dismissal of complaints; (iv) address and resolve
complaints in a timely manner so that license renewal and other
applications are not unduly delayed; and (v) take swift action on
reconsideration petitions and responses to notices of apparent liability
so as to reach final decisions and permit court review.
NEED RESTRAINED APPROACH
National Public Radio: Lost amid the furor over a few high-profile incidents has been the
deleterious effect of the commission’s enforcement efforts on
responsible broadcasters. Because a more restrained approach to
indecency and profanity enforcement would better accommodate the
protected speech of public radio broadcasters and better allocate
commission resources, NPR endorses the proposed “egregious cases”
By providing greater room for editorial discretion, an egregious
cases approach allows a station or program producer to make programming
decisions knowing the commission will pursue abuses of discretion rather
than second-guessing individual word choices. By adopting a more
practical approach to indecency and profanity enforcement, the
commission staff could routinely dismiss complaints about broadcast
matters that may involve an isolated anatomical reference or a subject
matter offensive to a few but clearly not indecent or profane.
INDECENCY POLICIES MUST BE CLEAR
National Association of Broadcasters: NAB believes that merely focusing enforcement on “egregious”
indecency cases is not sufficiently clear. In revising its indecency
standards, the commission must use language that is as precise as
possible and provide relevant examples and context in its policies and
decisions. If the commission cannot establish sufficiently clear
indecency regulations so that broadcasters know what is expected of
them, then broadcasters cannot be subject to liability for alleged
violations of those standards.
Emmis Communications Corp., Radio One: The FCC has not defined the term “egregious,” leaving broadcasters
with no guidance as to what the commission will deem to be of such
flagrant, blatant and glaring offensiveness to be deemed “egregious.” …
The absence of meaningful and consistent guidance regarding the contours
of the FCC’s indecency policy creates a real chilling effect on
NO FLEETING EXPLETIVES POLICY
Future of Music Coalition: FMC strongly urges the commission not to expand its current indecency
policy to include a ban on “fleeting expletives” from the airwaves.
Such a policy creates an inhibiting environment that has a chilling
effect on artists’ creative expression — among the speech the First
Amendment was designed to protect. The chilling effect is most
pronounced upon noncommercial and other small stations, including the
low-power FM stations that FMC has long championed, and which the FCC is
about to more broadly license.
KEEP FLEETING EXPLETIVE POLICY
Family Research Council: FRC believes that the commission’s policy opposing the use of
“fleeting” expletives is reasonable. Technology is available to
broadcasters that allow them to delete indecent language in live
programming. There does not need to be a deliberate and repetitive use
of patently offensive speech to know that a broadcaster is allowing
indecent language to be aired. On those occasions when something
offensive slips through a broadcaster’s filters, the commission can
assess whether a serious effort was made to keep such language from
being broadcast before assessing penalties.
EXEMPT NEWS PROGRAMMING …
Radio Television Digital News Association, via attorneys at Wiley Rein: The commission’s standards have left broadcasters with little real
grasp of what is allowed and what is not, and lack the clarity that the
courts and the constitution demand. While RTDNA is uncertain that the
commission can come up with standards that ultimately will survive First
Amendment scrutiny, at a minimum, the commission should immediately
ameliorate the chilling impact on broadcast journalism by exempting from
indecency regulation language or visuals contained in news and public
… AND RADIO READING SERVICES
Sun Sounds of Arizona, submitted by Attorneys Ernest Sanchez, Susan Jenkins of the Sanchez law firm: Many radio reading services have been unable to migrate to HD Radio
because they have not been able to convince their FM main channel hosts
to carry their services over digital audio broadcasting radio stations,
despite the great bandwidth available to these stations. The resistance,
in part, stems from the chilling effect of commission indecency policy
enforcement. These stations are concerned because audio information
services do not typically edit or censor the printed page read aloud for
listeners, just as those printed pages would not be edited or censored
before being read by sighted persons.
VOID WHOLE THING
Family Research Council: Simply put FRC opposes everything about this illegitimate and
ill-advised proceeding. … This proceeding should only have been started
after consideration by the full commission when its members did not
include holdovers. The commission needs to start enforcing its indecency
policies including its rejection of even “fleeting” expletives and