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The Ombudsman Column

A Lone Ranger Rides Again

Back on Jan. 30, I wrote a column headlined "The Lone Rangers." The headline referred to the fact that although PBS has tens of millions of viewers every week, it is, as the first sentence of that earlier column explained, "often the case that a single viewer raises a question or challenge to PBS procedures that helps surface answers and explanations about how the complex organism that is PBS works, or doesn't work."

Well, that has happened again, big time. A single viewer, at least as far as we know, wrote to the Federal Communications Commission's Enforcement Bureau on March 18, 2004, to lodge an "indecency complaint" against KCSM-TV in San Mateo, Calif., for the airing a week earlier, on March 11, 2004, of a two-hour documentary called, "The Blues — Godfathers and Sons."

The viewer, whose name has not been disclosed by the FCC and who appears to be familiar with issues of alleged indecency and how to lodge protests, told the FCC that, "As a parent, I was deeply shocked and disturbed" by this program "which aired before 10 p.m. local time," and which "contained numerous and repeated obscenities. I was stunned that a prerecorded program containing such language could be aired on broadcast television." The letter writer noted seven such specific utterances and one on-screen title and added his or her own assessment that: "This language was clearly indecent based on the Commission's previous rulings."

The four-person Commission, with one partially dissenting voice, agreed and last month, on March 15, announced that it intends to levy a fine of $15,000 on the small, community college station that operates in the San Francisco Bay area and is one of the more than 340 local stations around the country affiliated with PBS.

The FCC's "Notice of Apparent Liability" however, is much larger than the single station and the impending fine. It carries with it the "chilling effect" noted by many critics of the decision. They cite the threat posed to small, non-profit stations, to independent filmmakers, and to the culture of historic documentaries that seek to capture the realism, including occasionally raw or vulgar language, of a time or place. The decision is going to be appealed by the station, with pro bono help from the Washington, D.C. office of the Morrison & Foerster law firm, and if the FCC doesn't agree to reconsider its decision it could wind up in the courts. It has already attracted major coverage in the news media and is certain to attract more as the appeal goes forward.

Profane or "an educational experience?"

I'm not going to repeat the words that are used in the film and noted in the complaining letter. They include one variation on the F-word, two uses of the MF-word, plus three uses of the S-word and one BS.

"Godfathers and Sons" is one segment of a seven-part PBS film series about "The Blues" that was first aired in September 2003. The acclaimed filmmaker Martin Scorsese is the executive producer of the series which was intended "to help raise the awareness of the blues and its contribution to American culture and music worldwide . . . a series of personal and impressionistic films viewed through the lens of seven world-famous directors who share a passion for the music," a press release at the time said. Marc Levin was the producer of the segment that drew the complaint.

I have no idea how any challenge to the FCC decision will turn out. But I have viewed this documentary and, as an outsider, a couple of things strike me. Actually, I've viewed two different versions of "Godfathers," one in the original, uncut form and another edited version that has some of the offending words removed, or partially removed.

PBS sent out both versions of the film to its affiliated stations along with an advisory that included "program flags" calling attention to specific vulgarities in specific episodes of the series. The series was first broadcast by many stations between Sept. 29 and Oct. 4, 2003. Six months later, KCSM ran it for the first time, using the original, uncut version. The station chose to air it from 8-10 p.m., well before the FCC's long-established so-called "safe harbor" hours after 10 p.m. when it is presumed children are not watching.

While I am philosophically strongly in favor of uncensored, historic documentaries that don't pull punches about who we are, what we do, and how we communicate, the FCC seemed — in general, and in my layman's eye — to back up its decision and argue its case well. In one key finding, however, which I'll get to later, I thought the Commission fell quite short.

In explaining its decision, the FCC points out that the San Mateo station, in its own defense, states that "the intent of the program is to provide a window into [the world of the individuals being interviewed] with their own words, all of which becomes an educational experience for the viewer." Thus, the station maintains that the language was not "used in a prurient way, but rather as an infrequent conversational expression of the artist [being interviewed] and was not edited to remove their dialogue, which accurately reflected their viewpoints."

But the Chief Offender Is Not a Blues Artist

But the FCC notes that "many of the expletives in the broadcast are not used by blues performers." They are used by a central figure in the documentary, an entrepreneur named Marshall Chess, a record producer, son of Leonard Chess and heir to the Chess Records label and legacy that goes back to the heyday of Chicago blues.

Here are some examples of what Chess says on camera that are cited in the complaining letter and by the FCC: "My dad had so many people at his funeral, my uncle said, 'You see all those mother-------? They're coming to make sure he's dead, so they don't have to pay back those mother------- notes.'" In another, he says, "What's your job? You stupid mother------! Your job is watching me."

It was those lines in the original version that also jumped out at me, as a viewer. It took the language issue beyond the occasional kind of obscenity one hears in lots of places nowadays, and that popped up elsewhere, but infrequently, in the film. I'm no prude. But the MF-words were jarring. Sitting here at PBS and trying to make assessments about always touchy and complicated editorial challenges, I wondered about what happened as those segments were filmed and recorded; what was going through the heads of producers and editors at the time, and as the film was being put together? What did local station executives, who have ultimate responsibility for what they put on the air, think when they previewed it, if they previewed it?

Here is a central figure in the documentary, basically the narrator, who is not a blues artist, looking right into a camera for a film that is going to be broadcast to millions of people by the Public Broadcasting Service saying things like that. It made me wonder as well. Is that art and important, contextual, educational reality speaking, or somebody wanting to establish his street cred on film? Should a little common sense in editing have prevailed over unfettered but unimportant usage? Is this a free expression case worth falling on your sword for?

In the so-called "soft" version of the film, the second half of those offending words was skillfully removed so as to be virtually unnoticeable. The meaning was clear from the "mother" part and the context, but it wasn't in your face and ears. I thought it worked well and let the film proceed without distractions that really had not much to do with the history of the blues.

The PBS View

On the language issue generally, PBS's top programming officials defend it this way: "After careful review, PBS believes that the FCC's decision concerning the use of language in 'The Blues,' a serious documentary work, raises substantive constitutional issues. We are working closely with KCSM in an effort to get the decision reversed. News, public affairs and documentary programs serve to document our history, institutions and cultures in an accurate and realistic manner, which sometimes results in the inclusion of coarse language." They cite the dissenting opinion of FCC Commissioner Jonathan S. Adelstein, who said that prohibiting the accurate reflection of various viewpoints and emotions "undercuts the ability of the filmmaker to convey the reality of the subject of the documentary."

PBS, in a statement, also said that this ruling had serious implications for the future of "documentary and other independent filmmakers whose work depicts real-world, unscripted scenes and situations," including interview-based language within a respected art form such as "The Blues" series. PBS said that if the ruling stands, independent and documentary filmmakers "may simply elect to pursue distribution of their films on cable channels and in other unregulated outlets" while PBS, faced with legal uncertainty and potentially severe consequences, "may be forced to reconsider or redefine its historic role in bringing such programming to the American people."

There were other peculiarities about this important case. One was the fact that it was based on a single complaint and, as far as we know, the only complaint to the FCC. Reports on TV market coverage for "Godfather and Sons" show that it was broadcast by hundreds of stations in 2003 and 2004 and was probably seen by many millions of people. The records show that several stations, including KCSM, broadcast it before 10 p.m., which — as noted earlier — is before the FCC's "safe harbor" time during which it is presumed children are not watching. But it is not known from these records which version of the documentary — the unedited version with the strong language included or the so-called "soft-feed" version with certain words deleted or softened — was shown by those stations that aired it before 10. On KCSM, the offending language, according to the complaint, took place between 8:42 p.m. and 9:32 p.m. local time.

In any event, the FCC made clear that it sanctioned only KCSM because it was the only station that broadcast the material before 10 p.m. that was the subject of a viewer complaint filed with the Commission, and that, "in the absence of complaints concerning the program filed by viewers of other stations, it is appropriate that we sanction only the licensee of the station whose viewers complained about the program."

The FCC: "shocking to the audience"

The FCC ruling, however, went well beyond the question of what time the program aired. It also said that, "In sum, because the expletives in the program are vulgar, explicit, graphic, dwelled upon and shocking to the audience, we conclude that the broadcast of the material at issue here is patently offensive under contemporary community standards for the broadcast medium and thus apparently indecent."

Well, maybe. Unless the FCC has a stack of undisclosed complaints stashed away somewhere that it isn't talking about, there is nothing in the published decision, except one letter from one unidentified person, to back up the claim that this was "shocking to the audience," or that it was "patently offensive under contemporary community standards." It is not at all clear that the KCSM "audience" or "community" feels that way. I wouldn't be surprised if a lot of people had complained, but there is no evidence in this decision that that is the case. In fact, it can be read to confirm that the opposite is true.

KCSM is licensed to the San Mateo County Community College District and says that its programming is oriented exclusively to adult viewers, with a good deal of college-level courses broadcast during the daytime hours. Station Manager Marilyn Lawrence says that there are several PBS-affiliated stations in the Bay area with overlapping coverage and that the station frequently tries to move broadcast times around to give local viewers other options for when they can see a particular program. Her station was actually the last to air it in the region, with nearby stations KQED, KTEH and KRCB all running the program before 10 p.m. during October and November 2003, four and five months before KCSM aired it.

During those months, Lawrence said, nothing had surfaced anywhere, including in the press, to suggest that anyone was upset about the program after those stations aired it. "We didn't spend a lot of time with programs that had already been aired in our market. In general, we all believed that in context, it would probably be okay. San Francisco is one of the most liberal and open-minded regions in the U.S. and we thought it would be acceptable to our audience. We were wrong."

Asked if she knew what versions the other stations ran, she said both KQED and KTEH believed they ran the unedited version, while KRCB ran the edited offering. She said that she couldn't answer as to whether the program had been reviewed before airing at her station but she said she would "guess, no." The FCC, in its report, said the station had months "to ascertain the questionable content of the program and to take steps to ensure that it did not broadcast the repeated uses of objectionable words at issue."

Review, Review, Review

KCSM is a small station with a small staff compared to many other PBS affiliates, and that puts a burden on the reviewing procedures with stations that feature thousands of hours of round-the-clock programming through the year, as KCSM does. What was also interesting to me, in particular, about the FCC decision in which KCSM got singled out, was that it was the same station that figured in the Jan. 30 ombudsman's column I referred to at the beginning of this column, and the same issue — pre-broadcast review — was a factor.

At that time, a single viewer raised a question about how programs are vetted before going on the air on PBS-affiliated stations. He was concerned about a film called "The Privileged Planet," which turned out to be about the "intelligent design" movement and was not distributed by PBS but which was aired on KCSM. Local stations within the PBS system are all independent and are free to acquire material from other sources. As it turned out, KCSM, in this case, also acknowledged that only a portion of the film had been reviewed by the station before broadcast.

There are lots of other points of law and timing that will undoubtedly be contested and debated as the challenge to this FCC decision moves forward.

For example, after this film was produced and aired for the first time by many stations, but before KCSM aired it, the infamous Super Bowl halftime show in February 2004, involving Janet Jackson's "wardrobe malfunction" took place, causing new scrutiny of network standards and liabilities.

Since then, there have been other important FCC rulings about language, such as the one in the fall of 2004 involving the approval for television of an unedited version of the film "Saving Private Ryan," an instance where the FCC acknowledged that deletion of words generally understood to be obscene would have diminished the realism of the experience for viewers. Commissioner Adelstein, in his dissent about the ruling against KCSM, cited the "Saving Private Ryan" decision as being consistent with the contextual reasoning behind his defense of the Blues program. The other three commissioners disagreed, saying that in the case of the "Godfathers and Sons" film, "while we recognize here that the documentary had an educational purpose, we believe that purpose could have been fulfilled and all viewpoints expressed without the repeated broadcast of expletives."

Then, on March 18, 2004, just a week after "Godfathers and Sons" aired locally on KCSM, the full Commission issued an important ruling tightening restrictions on the use of obscenities as part of the case involving the Hollywood Foreign Press Association's Golden Globe Awards, where the F-word had been uttered during the January 2003 ceremony. This decision, executives here say, actually reversed a less restrictive finding in the fall of 2003 by the FCC's Enforcement Bureau.

The legal battle will be interesting and important and the stakes will be high. It may further clarify the rules and restrictions about permissible language and context. But what also interests me is how this case will be absorbed by local station managers, filmmakers and PBS. What lessons, if any, will be taken away from it? Will the "public" be "protected" from things that, in historical and educational context, they have a right to be exposed to? Will a reversal of the decision mean that the borders are being pushed back as our language, culture and privilege evolve? Or will the lesson be that in order to preserve that evolution, some compromise and common sense need to be part of the equation? Or maybe none of the above.