FCC Fines Stations for $3.6 Million for ‘Indecent’ Programs

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• JEFFREY BROWN:

  Yesterday was a bad day for the CBS network at the Federal Communications Commission. The network's police show "Without a Trace" took the biggest hit. Citing indecency standards, the FCC slapped a record-setting total fine of $3.6 million against 111 CBS stations for a December 2004 episode for — quote — "graphically depicting teenage boys and girls participating in a sexual orgy."

  CBS strongly objected to the fine, saying the show contained no nudity, aired in the last hour of prime time, and featured an important and socially relevant storyline, warning parents to exercise greater supervision of their children.

  The commission also upheld the $550,000 fine that CBS had appealed for Janet Jackson's infamous wardrobe malfunction during the halftime show at the 2004 Super Bowl.

  In a separate action, FCC Chairman Kevin Martin renewed the practice of fining only individual stations that were targeted for complaints, rather than every station that aired a given program.

  His predecessor, Michael Powell, had argued that entire networks should be held accountable for broadcast content. In all, six other programs across a broad spectrum were fined for indecency, from Spanish-language music videos, to the WB reality series "The Surreal Life 2," to a PBS broadcast of "The Blues: Godfathers and Sons," a documentary by filmmaker Martin Scorsese that contained profanity.

  The FCC fined an educational station in San Mateo, California, $15,000. The FCC actions, which can be appealed, stem from some 300,000 complaints against 49 shows airing between February 2002 and March 2005.

  According to the FCC, most complaints were filed through coordinated campaigns. Some members of Congress have raised the issue of widening the FCC's content enforcement area to include cable television and the new medium of satellite radio.

  Presently, the FCC covers only over-the-air broadcast radio and television. The FCC has not directly responded to the idea.

• JEFFREY BROWN:

  And joining me to debate the issue of indecency fines are: Robert Peters, president of Morality in Media, a non-profit interfaith organization founded to combat obscenity and indecency in the media. And Devereux Chatillon is a First Amendment lawyer in private practice and former in-house counsel for ABC News and "The New Yorker" magazine.

  And welcome to both of you.

  Mr. Peters, starting with you, why was the FCC right to fine these programs?

  ROBERT PETERS, President, Morality in Media: Well, you know, the — the broadcast indecency law has been on the books since 1927. Thankfully, through most of our nation's history, there was no need for an FCC indecency fine. The network had standards. There was an industry-wide code. And I think, you know, those of us who are old enough to remember the 50s and 60s realize that television, on the whole, was a much more positive influence on society.

  In my opinion, the fines that came forth yesterday were long overdue. I — I don't think that, you know, the end of all of this is going to be that television will never offend. It will hopefully be that there's going — there are going to be some bottom-line standards that broadcasters need to realize they need to respect. This is a public space. It goes into everybody's home.

  Tens of millions of kids are watching it. And what goes on in broadcasting is not the same thing that should go on, on HBO.

• JEFFREY BROWN:

  And, Ms. Chatillon, why don't you give us an initial reaction to what — what the FCC did?

• DEVEREUX CHATILLON, First Amendment Attorney:

  I find it deeply troubling. I think many people will.

  It really falls into two congratulations. One is that the FCC has now ruled, pretty definitively, that any use in any context of what they refer to — and I think I have to on this show now — as the S-word the F-word is presumptively indecent and can be fined, and fairly substantial fines, as we have seen.

  One of the shows, as you mentioned in the setup, is a documentary about blues and about blues musicians. And the FCC was clearly quite offended by repeated use, as it said — although the transcript is not given, so we can't see all of it — of the F-word and the S-word, although it had earlier ruled that the movie "Saving Private Ryan," although it has repeated use of those words, was not indecent, because it found, in that context, that it was essential to the artistic vision.

  To have the government making those kinds of decisions, what is and is not essential to an artistic vision, on matters such as a blues documentary and other things like that is very troubling, I think, on all sorts of fronts.

• JEFFREY BROWN:

  And staying with you, now, the — the FCC also, of course, looked at a number of programs, and decided not to impose fines.

  So, when you look at the ones that they did fine and the ones that they didn't, is it possible to define indecency at this point for broadcasters?

• DEVEREUX CHATILLON:

  I think it's almost impossible.

  On the — the simply on the S-word, F-word levels I just mentioned, what they have said is that it needs to be — the use of it needs to be — quote — "essential" to the artistic or education material in the work, and that Martin Scorsese, apparently, can't decide that on a blues documentary, but the FCC can. That's very troubling.

  There was none of the language in this decision today of the deference to the creators, to the filmmakers, to the newspeople involved that you have seen in previous FCC decisions.

  Certainly, on the more sexual front, on the depicting of sexual activity, there used to be a pretty bright line. Nudity wasn't allowed. A certain amount of reference to sexual activity was. And, yet, there was a $3.6 million fine against CBS for sexual activity in one episode.

  And, yet, ABC, on another show called "Alias," the FCC simply said that, although it depicted sexual activity, it was — because of the use of music and other things, it wasn't pandering, and, therefore, somehow, it wasn't indecent.

  I don't know, sitting in a studio or an edit room, how you're supposed to make those decisions. And my concern is that we will lose a lot of wonderful programming and speech off of the broadcast arena because of these kinds of doubts and the level of the fines that were assessed today.

• JEFFREY BROWN:

  Mr. Peters, what do you think? Do you — do you see a clear line, a clear definition, from what the FCC did, that will help broadcasters and — and the audience understand what constitutes indecency?

• ROBERT PETERS:

  Well, I will tell you, I — I think, admittedly, the line is not crystal clear.

  And I suspect, if this were a criminal case, the — the FCC would have a much harder time justifying what it has done, because, in criminal cases, the standards for clarity have to be higher.

  But I think of the — you know, the standards in terms of sexual harassment on the job. Just like with indecency, certain cases are very clear-cut one way or the other. But there's a gray area. And it's just something we have to live with.

  Now, in terms of the broadcast indecency standard here, we are talking about viewpoints, opinions on various subjects. We're talking about four-letter words, sexual — and sexual activity. So, you know, you start — how much is going to be lost if the networks pull a few of the four-letter words and hold back on a little bit of the touchy-feely and this and that? I mean, we are not talking about speech, at the heart of the First Amendment.

  And the last point I would make is that, you know, for better and worse, the FCC has come up with three criteria, which they obviously put a great deal of weight on. There are other factors that they consider. And I think — I will tell you, though, you have got to keep in mind that there has not been an awful lot of indecency law enforcement.

  If the FCC does its job, I think, over time, the standard is going to become more and more clear, and something with the — with — in a number of these cases, because the standards weren't so clear, the FCC said that, even though we think you violated the law, we are not going to fine you, but, in future cases, of course, if people do the same thing, they are going to get a fine.

• JEFFREY BROWN:

  Now, Mr. Peters, respond to Ms. — Ms. Chatillon's other point about why the government should be doing this in any case, particularly now, when there are filters in place. There's a ratings system. There's the V-chip. There are parental controls that can be used. Why now is there still a role for the government to be regulating this way?

• ROBERT PETERS:

  Well, I tell you, specifically, with the — the television rating system, you have a television PG. You have a television 14. And both of those ratings contain the best and the worst of television, or close to the worst.

  So, let's say a parent happens to see something with TV-PG that he or she thinks is very offensive to his or her values, or isn't appropriate for children. So, they program the V-chip to block all TV-PG programming.

  What they're going to have is a blank screen. And I will tell you, while TV-14 isn't used quite as — used as often, the similar — a similar thing is going to happen. Along with the good — along with the bad going, a lot of the good is going to go.

  The second half of the answer, I think — you know, I will tell you, I don't, you know, fully under — claim to fully understand human nature, but it's all too clear that parents are a very, very diverse group, from the best to the worst. And I suspect most parents are in between.

  And they fight — they seem to think they're fighting a losing battle against culture. If you look at the opinion polls, they welcome help, in terms of their — in terms of shielding their children from this kind of programming, whether it's on TV, films, the video, whatever. They're not doing the perfect job that some Supreme Court justices seem to think they should be.

  They're never going to do the perfect job, which means there is a role for government. Government isn't the whole answer, but it has to play a role in this, I think.

• JEFFREY BROWN:

  We just have a minute.

  I just want to ask you both for a brief response on the question we raised about the movement towards regulating cable, because you have to see all this in the context of what's available on cable.

  Starting with you, Ms. Chatillon, do you fear that there will be moves towards regulating indecency on cable?

• DEVEREUX CHATILLON:

  Certainly, there has been some movement in Congress in that — in — to — to — in that direction.

  I think it would clearly be unconstitutional. I have to disagree with my colleague here. This is core First Amendment speech. This is documentaries about music. These are stories about our children.

  A lot of the programming, some of which they found did not meet the indecency standards, was an Oprah Winfrey show discussing teenage sexuality. So, it's OK now to talk about it, but never OK to show it.

  Since the ancient Greeks, one of the ways we, as a culture, have looked at social issues is by telling stories. And what we're being told now is, you can't tell these stories, not here. That's not what the First Amendment is about. This is core First Amendment speech.

  The FCC, historically, has tread very lightly in this regard, until just two years ago. This is unnecessary, and the FCC should not take the role of parents. I'm a parent. That's what I'm there for. It's not what I want my government to do.

• JEFFREY BROWN:

  All right, we will have to leave it there.

  Devereux Chatillon and Robert Peters, thank you both very much.

• DEVEREUX CHATILLON:

  Thank you.