FCC’s Punishing Fines Have Chilling Effect on Broadcasters
By Kara Canty
The Baltimore Sun
October 13, 2006

PROVIDENCE, R.I. // Imagine a broadcasting station where producers and editors leave crucial interviews, battle footage and artistically composed dramas on the cutting-room floor, never to be aired.

That is precisely what networks are doing in order to avoid hefty fines from the Federal Communications Commission in the event that the material is deemed indecent. More frequently, scriptwriters are consulting their lawyers rather than their editors about the use of artistically suitable coarse language.

Why should anyone care whether broadcasting stations censor themselves? Because self-censorship is leading to indirect government censorship.

In March, the FCC charged a dozen television shows with indecency violations for using profane and lewd language. Outraged, four major television networks - ABC, NBC, FOX and CBS - filed notices with federal appeals courts complaining that the FCC's indecency policy is unconstitutional and inconsistent. According to the Associated Press, fines for indecent programming amounted to $7.7 million in 2004; four years earlier, FCC fines totaled only $48,000. The fear of penalties has led less spontaneity and fewer depictions of reality in the media.

The issue at hand is more than just a challenge to the First Amendment. Most significant, the agency has failed to enact any clear indecency policy for broadcasting stations to follow. The FCC's procedural manual states that the commission's duty is to address the concerns of the community, not the personal preferences of individuals. Nonetheless, commissioners have failed to monitor the media or set policy independently and instead have relied on the complaints of socially conservative interest groups to address grievances.

This is dangerous because arbitrary enforcement allows interest groups to guide the FCC's regulation policy. Once a complaint is lodged, the agency can use its authorized power to fine broadcasters millions of dollars. Previously, the commission found that isolated coarse language was acceptable; now, it seems, broadcasting particular words always results in a violation. How will networks decipher when someone, somewhere might take offense to other words?

On Sept. 7, the National Public Radio program Fresh Air interviewed Louis Wiley, executive editor of the PBS documentary series Frontline. He stated that the FCC's policy toward profanity was having a chilling effect on the industry.

In one case, Frontline producers seriously considered editing out battle scenes from the Iraq war in which soldiers shout profanities while under attack. Although the FCC approved the uncut broadcast of the curse-filled motion picture Saving Private Ryan, the station worried it could be held liable if it broadcast the material uncensored and viewers complained. Mr. Wiley estimates that for six uses of a curse word, the station would be fined $195,000, multiplied by the number of stations on which the program aired, for a total of $35.1 million.

It is not surprising that producers are thinking again about eliminating content. A week after the Fresh Air program, during an interview with a soldier in the documentary A Soldier's Heart, Mr. Wiley decided to bleep the F-word, fearing that he would have to again contact lawyers and risk a potential fine.

Some people may applaud FCC Chairman Kevin J. Martin and the policy because they believe allowing indecent speech "in context" will open the floodgates and increase the prevalence of vulgarities and obscenities in the media. According to CNSNews.com, Tim Wildmon, president of the American Family Association, contends, "It's not the job of the chairman of the FCC to define context for the F-word ... that's the mandate he was given by Congress." The public would concur that program language should be benign when it is targeted toward children and families.

But context is a significant factor in determining the legality of FCC policy. According to the agency, for material to be considered indecent, it must be of a sexual nature, graphic in description or used to incite shock. Other applications of curse language should be considered legal when they are integral to the scene in a documentary, drama or public affairs telecast. Nevertheless, doing so would be anathema to the FCC.

It is impossible for viewers to know, the next time they watch their favorite broadcast, whether they are seeing only part of the truth. The FCC indecency policy has left the networks with no other choice but to censor their work. The fear tactics have been effective.

Kara Canty is a master's candidate in public policy at Brown University. Her e-mail is kara_canty@brown.edu.

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