Regulators grapple with how to determine indecency rulings
Given the number of shoes that have dropped since the "costume malfunction" during January's Super Bowl telecast, broadcasters must feel like a centipede is living upstairs.
The latest "clunk" from above came in the form of a Notice of Proposed Rulemaking from the FCC, laying out a regulation requiring broadcasters to maintain recordings of their programming for an undetermined amount of time. (The filing suggests 60 to 90 days.)
In its NPRM, the commission was direct about the reason behind such a requirement.
"The more information the commission can have in its possession about a program when it concludes an investigation and decides whether or not to initiate an enforcement proceeding, the more informed a decision it can make."
The need for such indisputable evidence as the recordings would provide is likely driven by the 1,700-percent increase Congress is considering for the maximum indecency fine.
Though Congress has been wrestling with the final figure for months, the previous top fine of $27,500 per offense could possibly climb to $500,000. With that sum at risk, broadcasters would be expected to mount spirited defenses against commission enforcement actions.
FCC Commissioner Michael Copps, who has long been a supporter of bringing back commission rules requiring retention of program tapes, said that the existing system places too much responsibility on a citizen making an indecency complaint against a station.
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"When someone sends in a complaint, he or she is usually told to supply a recording of the program or a transcript of the offending statement, or the complaint will be dismissed," said Copps in a statement accompanying the NPRM.
He cited the commission's responsibility to investigate complaints of violations rather than a citizen's responsibility to prove them. "[With program recordings], when someone complains about what went out on the public airwaves, we can have a record to see how those airwaves were used-or abused," Copps said.
In the years since the requirements for retaining program recordings has lapsed, Copps said "broadcasters continue to respond to FCC letters of inquiry that they do not have a tape or transcript of what they broadcast."
Individual broadcasters and large broadcast groups have largely been mum on the NPRM, but the NAB indicated they will work to stop such requirements from being put into place.
"NAB looks forward to participating in the filing," said the organization's senior vice president of communications, Dennis Wharton, "and we hope to demonstrate that there is no need for this additional regulation since the vast majority of broadcast stations do not get indecency complaints."
The NPRM proposes that the recordings be required for the daypart from 6 a.m. to 10 p.m. Commission rules have allowed indecency during the eight hours in the middle of the night in order to satisfy First Amendment protections.
"The airing of such programming is restricted to the hours of 10:00 p.m. to 6:00 a.m., when children are less likely to be in the audience," said the filing.
The NPRM takes notice of the burden that making and retaining such recordings might place on small broadcasters. It suggests: "an exemption from coverage of the rule, or any part thereof, for small entities," and invites comments on minimizing its onus on smaller broadcasters.
The filing also suggests the program recordings could be of lesser quality than the original broadcast.
"We are also cognizant of the difficulties associated with recording high-definition content, and for that reason propose to allow broadcasters to record programming at a lower bit rate."
Comments on the NPRM were due to the commission by July 30th, with replies due Aug. 30.
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