FCC sticks by its hefty fines

Package of rulings fined 111 CBS licensees $3.6 mil

In its first indecency rulings under chairman Kevin J. Martin, the Federal Communications Commission gave the Eye a shiner and appeared to toughen indecency standards for all broadcasters as well as apply the standards more narrowly.

The agency’s long-awaited package of rulings fined 111 CBS licensees a record $3.6 million for airing an episode of “Without a Trace” that regulators deemed indecent. An FCC spokesman said this penalty was the biggest the agency has issued for a single broadcast, topping the highest fine Infinity Broadcasting ever drew for Howard Stern.

The commission also denied the Eye’s appeal of the hefty $550,000 fine it drew for the 2004 Super Bowl halftime show, which briefly flashed Janet Jackson’s right breast.

Among some 300,000 viewer complaints received between February 2002 and March 2005, the FCC zeroed in on the most substantive, which involved nearly 50 television broadcasts. Agency determined that six, including a segment of helmer Martin Scorsese’s critically acclaimed documentary “The Blues,” which aired on PBS, violated indecency standards. They drew fines ranging from $15,000 to $220,000.

Others fined included the WB and NBC’s Telemundo in addition to licensees Sherjan Broadcasting and Aerco Broadcasting.

The FCC determined that four other TV shows violated indecency standards but did not merit fines and that 17 others also provoking viewer complaints did not violate any standards.

According to veteran communications and First Amendment attorney John Crigler, the package sends a new message to broadcasters: “You have no place to hide,” he said.

“Martin wanted to make an impact, and he will,” Crigler added. “If there was any doubt as to where he was going with indecency, this should end it. He’s eliminating a lot of the defenses broadcasters have used.”

For instance, broadcasters have often pixilated naked private parts, but the ruling against an episode of “The Surreal Life 2,” which featured copious amounts of pixilated female breasts, made clear the effort was not sufficient.

“Despite the obscured nature of the nudity,” the commission wrote in its decision, “it is unmistakable that partygoers are exposing and discussing sexual organs as well as participating in sexual activities.”

“Innuendo is actionable,” Crigler said, signaling a change in previous FCC approaches to indecency.

But the agency is also trying to appear reasonable. Fines were only issued to stations that had drawn viewer complaints, unlike before, when all stations airing offending material were fined, regardless of whether viewers complained.

“Our commitment to an appropriately restrained enforcement policy … justifies this more limited approach towards the imposition of forfeiture penalties,” the agency wrote.

The National Assn. of Broadcasters declined to comment. However, NBC said in a statement, “The FCC’s decision to fine NBC Universal’s Spanish-language independent television station for airing a movie that has been repeatedly broadcast over the past dozen years is not supported by law or the FCC’s prior rulings.”

NBC also promised to go to court if the agency stands by its decision.

“CBS continues to disagree with the FCC’s finding that the 2004 Super Bowl was legally indecent,” the net said in a statement. “CBS also strongly disagrees with the FCC’s finding that ‘Without a Trace’ was indecent. The program, which aired in the last hour of primetime and carried a ‘TV14’ V-chip parental guideline, featured an important and socially relevant storyline warning parents to exercise greater supervision of their teenage children. The program was not unduly graphic or explicit, and we will pursue all remedies necessary to affirm our legal rights.”

Parents Television Council, which has waged a voluble campaign against broadcast indecency, hailed the decisions.

“We applaud the FCC for upholding the substantial fine against CBS for Janet Jackson’s indecent exposure during the 2004 Super Bowl, for finding the graphic sexual content in ‘The Surreal Life 2’ to be indecent and for clarifying whether utterances of the F-word and S-words are indecent,” said exec director Tim Winter in a statement. “Finally, we wholeheartedly endorse the FCC actions to protect Spanish-speaking children and families from indecent broadcasts. The public airwaves belong to all Americans without regard to their primary language.”