Last night’s Super Bowl didn’t offer much in the way of excitement on the field, as the game was seemingly over by the end of the first half. But, for the last decade, the half-time show itself may offer some anxiety to the stations carrying the game. 10 years ago, Janet Jackson had her infamous Super Bowl wardrobe malfunction incident which started a firestorm at the FCC for the next several years, as it ignited many calls to more aggressively regulate indecency on the airwaves. As a result of the incident, a number of fines were meted out for this program and to many others that aired soon thereafter. But, in reality, what the incident did was to highlight just how difficult it is for the FCC to enforce any sort of indecency rules, as the issue raised at that time continue to be debated at the FCC right up to the present day.
As we have written before, the FCC policy that was applied to the Janet Jackson incident is one that is still in a state of limbo, as the FCC has issued a request for public comment on whether it should limit its enforcement to cases where there are egregious violations of the indecency policy rather than those that last a fraction of a second, as was the case in the Janet Jackson Super Bowl incident. This need for reexamination arose after the Supreme Court decided that the FCC’s crackdown on any indecency, even “fleeting expletives”, was not adequately explained as it departed from prior FCC policy that understood that, on occasion, mistakes happen. As long as the error causing something arguable indecent to be broadcast wasn’t repeated or planned, there would be no substantial penalty. But even the common sense reform which essentially stepped back to the prior policy of recognizing that mistakes happen gave rise to many protests that the FCC should not back down on its tough indecency enforcement.
Yet many broadcasters continue to wait while these reforms are pounded out. Many broadcast sales and license renewals continue to be delayed by indecency complaints. While the Commission’s staff has seemingly started to weed out some of the cases where the issues were clearly not actionable (where they would not give rise to fines no matter what standard was used), there remain many in a grey area where, in order to get approval for a station sale through the FCC, or to get a renewal granted, the licensee must sign a “tolling agreement”, giving up statute of limitations rights and sometimes escrowing sufficient funds to cover any potential future fine.
This weekend, there was a story on NPR’s On The Media, found here, where an ESPN commentator suggested that this dispute was old news that would not arise today as society has changed and people would not take offence at an incident like the Janet Jackson case. The story cites to the decline in the number of indecency complaints that have been filed at the FCC in recent years. But this seems to us to simply be a reflection of the decline of organized campaigns to flood the FCC with thousands of complaints on any incident that offended the monitors at specific groups that were active in organizing such complaint-filing frenzies. Complaints are still filed at the FCC on a regular basis, and it takes only one complaint to tie up a broadcast licensee.
So we are looking forward to a resolution of this long-standing proceeding 10 years after it became the “hot” issue in broadcasting, just as we are looking forward to a more competitive Super Bowl next year!