The FCC's indecency policy has been in limbo since last year's Supreme Court decision determining that the Commission's fines on broadcasters for fleeting expletives had not been adequately explained before being imposed. On Monday, the FCC took a step to clarifying that policy by asking for public comments on what it should do now. Should it formally adopt the policy that bans even fleeting expletives, and explain that policy to broadcasters to meet the issues that the Supreme Court raised? Or should it go back to the policy that had been in place before – the decision in the Pacifica case (known more popularly as the "seven dirty words" case, about which we wrote here) - where there had to be repetitive or deliberate use of expletives before the FCC would act. Comments will be due 30 days after this notice is published in the Federal Register, and replies 30 days after that.
The Commission stated that the public could comment on other aspects of its indecency enforcement as well, without specifying any specific areas of inquiry. One issue that would seem to be foremost in the FCC's inquiry, but one which was not mentioned at all, is the constitutionality of the policy and its enforcement. This was an issue that was twice teed up to the Supreme Court, and both times that Court managed to avoid the issue by deciding cases before it on procedural "due process" grounds – essentially that the FCC had not given sufficient warning before adopting fines or that the FCC otherwise had not followed its own procedures when it changed its policies to a stricter enforcement standard. As the Court never finally resolved the constitutionality issue, it may well be back before the Court again – especially were the FCC to decide to pursue the stricter standard applied by the last Commission.
The Public Notice also announced that the Enforcement Bureau at the FCC has reduced the backlog of broadcast indecency complaints thus far by 70% (more than 1 million complaints) since September 2012. This was stated to have been done by closing pending complaints that were beyond the statute of limitations or were too stale to pursue, that involved cases outside FCC jurisdiction, that contained insufficient information, or that were foreclosed by settled precedent. From our experience, there are still many cases pending which are holding up renewals and sale applications. It may well be that many of the complaints that have been dismissed were ones filed by pressure groups – submitting thousands of complaints against single incidents, while many of the protests by single individuals against individual stations are still pending. From our experience, the dismissed complaints were mostly the very old ones. The application of "settled precedent" has been applied more sparingly, leaving many complaints pending that will most probably never result in any liability to any station.
The Public Notice said that the reexamination did not change substantive indecency standards and that, during the pendency of this proceeding, the Enforcement Bureau will continue to focus its indecency enforcement resources on egregious cases. Of course, the results of the inquiry will decide just which cases are so egregious as to warrant a fine, and apparently will also decide just what the substantive standards are.
So watch for the comment deadlines and how the FCC's policies will adopt in light of these public comments.