FCC finds itself in another fine mess

Blames recent court decision for confusion

While preparing to take Fox Television to the Supreme Court over a handful of expletives, the Federal Communications Commission let expire a separate indecency fine against the network for airing a movie with multiple repetitions of one of the same expletives.

The FCC blamed a recent federal appeals court decision, saying it has created confusion over how the agency can enforce its indecency rules.

In March 2006, the FCC issued a Notice of Apparent Liability to Fox station KTVI St. Louis, Mo., proposing a $27,500 fine for a 2003 airing of the movie “The Pursuit of D.B. Cooper,” which contained numerous instances of “shit” and its variations, including “bullshit,” “holy shit” and “owl shit,” according to an FCC investigation into the lone complaint that was lodged.

But the agency never followed up with a formal notice of forfeiture — a demand for payment that the Justice Dept. is authorized to collect. The statute of limitation for collecting on a forfeiture is five years from date of the offending broadcast.

Because the FCC never issued a forfeiture notice and because KTVI broadcast the film on March 15, 2003, U.S. attorneys saw their chance to enforce any fine against KTVI expire nine days ago.

The failure to issue a forfeiture notice would seem an anomaly given FCC chairman Kevin J. Martin’s often-repeated vows to hold broadcasters accountable for what they air and to take a harder line against indecency than previous chairmen have.

Moreover, the FCC analysis of the “Pursuit” broadcast suggested a fairly open-and-shut case: multiple, scripted expletives aired on a Saturday afternoon, when children are likely in the viewing audience.

“In sum, because the material is explicit and graphic, is dwelled upon, and shocks, panders and titillates, we conclude that its broadcast here is patently offensive under contemporary community standards for the broadcast medium and thus apparently indecent,” the FCC wrote.

“The material was pre-recorded, and KTVI could have edited the content prior to broadcast,” the agency continued. “In addition, the gravity of the apparent violation is heightened here because of its shocking and gratuitous nature, involving as it does multiple gratuitous utterances of vulgar, graphic and offensive expletives during a weekend afternoon broadcast.”

When the FCC issued the notice of apparent liability for “The Pursuit” broadcast in 2006, it was part of an omnibus order addressing a large backlog of complaints of alleged broadcast indecency. The citations against Fox that the Supreme Court will hear in the fall were included in that omnibus order. Those citations involve a single utterance of “shit” and two of “fuck.”

FCC spokeswoman Mary Diamond said a ruling last year by the 2nd Circuit Court of Appeals tossing out a new commission policy on indecency was the reason the agency didn’t pursue “The Pursuit” fine.

“Among the many harmful parts of the 2nd Circuit decision in the Fox case was its suggestion that expletives could be broadcast so long as they were used in what that court called a ‘nonliteral fashion,’ ” Diamond said. “Given the uncertainty created by that aspect of the 2nd Circuit’s decision, the commission decided not to go forward at this time with the forfeiture proceeding involving ‘The Pursuit of D.B. Cooper.’ ”

Veteran communications attorney John Crigler said the FCC is simply overburdened with complaints. As a result, “The FCC has been trying to get companies to toll (deadlines) and agree to extend” the five-year statute of limitations, Crigler said.

“The FCC approached Fox about a tolling agreement,” said network spokesman Scott Grogin. “We declined.”

Parents Television Council, which has lobbied for stiffer indecency penalties and enforcement, did not respond to a request for comment.

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