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FCC Chair Proposes Policy to Focus Only On ‘Egregious’ Indecency Cases

Agency is taking public comment on how to deal with backlog of complaints

After a Supreme Court challenge of its crackdown on so-called “fleeting expletives,” FCC Chairman Julius Genachowski is proposing a shift in policy that would have the agency pursue only “egregious” indecency complaints.

Genachowski has grappled with a huge backlog of complaints, exacerbated as enforcement was put on hold as the networks challenged the FCC’s sanctioning of broadcasters for “fleeting expletives” in the last decade. The Supreme Court last year struck down FCC rulings against Fox and ABC, but declined to strip the agency of its authority to police indecent content and even left open the possibility that the commission could continue to pursue a way to clamp down on “fleeting” swear words and nudity.

But the high court essentially punted on the issue, and there has been doubt on how the agency would sanction the networks for such incidents without broadcasters again challenging a policy on First Amendment grounds. Broadcasters contend that such a policy has been arbitrary, and argued that it stifled free speech because content creators could not be certain what was permissible and what was not.

The shift in policy is only a proposal, and the agency is taking public comment on whether to do it or pursue some other approach.

Such a shift would make permanent the way that Genachowski has pursued cases in the aftermath of the Supreme Court decision.

In September, Genachowski directed the FCC’s enforcement bureau to reduce its backlog by focusing only on those “egregious” cases, with many of the complaints dismissed, often on grounds that they were outside the agency’s jurisdiction or because the statute of limitations had run out. According to the FCC, the backlog has been reduced by 70%, from 1.48 million complaints as of Sept. 21 to 465,544 as of Feb. 25.

Were the FCC to pursue a policy that singled out only “egregious” cases, it also would mark a return to the way that the commission pursued incidents before a stricter approach was adopted in the middle of last decade.

In the aftermath of the Supreme Court’s landmark Pacifica decision in 1978, the FCC pursued cases where expletives were uttered in a “deliberate and repetitive use in a patently offensive manner.” That changed in 2004, when the commission singled out even isolated expletives, such as Cher, Nicole Richie and Bono’s separate utterances of the f-bomb during award telecasts. The FCC also is trying to figure out how to handle fleeting instances of nudity.

The broadcast networks have complained that orgs like the Parents Television Council, a watchdog on TV content, are responsible for many of the complaints via letter-writing campaigns and email links. One incident — like Janet Jackson’s infamous bare breast during the Super Bowl halftime show — can result in a flood of complaints. The number of individual incidents, or cases, has dropped from about 10,000 to 5,538.

The backlog of complaints — and how to handle them — has been one of the lingering questions as Genachowski prepares to depart the agency after nearly four years in the chairman’s post. Compared to his predecessor, Kevin Martin, he has focused far less on indecency and more on broadband issues, even as the agency defended its indecency regime in the courts.

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