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CBS Tempts FCC Ire Over 'Trace’

By taking a pass last week in its high-stakes content crackdown card game with the FCC, CBS has opened itself up to the possibility of some extreme actions—or perhaps just a few more bluffs.

CBS officials contended last week that the network had thought it had already done enough in response to the commission’s raised ire—and proposed record $3.6 million fine—for its 2004 airing of an episode of Without a Trace that contained a teen orgy scene.

Based on how the FCC now responds, CBS could face an array of actions, topped by a hearing on its fitness as a TV station licensee, or the reopening of thousands of indecency complaints against radio and TV stations about a raft of programs from The Howard Stern Show to primetime dramas. Or the FCC could accept CBS’ explanation for not taking actions it appeared to have agreed to in a 2004 consent decree.

CBS was responding to questions posed by the FCC in June after the Parents Television Council challenged the license of KUTV Salt Lake City in August 2006. That challenge came down to the Without a Trace episode, and what appeared to the PTC to be noncompliance with an agreement CBS parent Viacom had struck with the commission in 2004 to wipe a slew of indecency complaints off the record.

In a letter to the FCC amending its request for a license renewal for the station, the network explained its inaction by stating that the proposed fine was against a scripted drama, rather than a live, unscripted show like a morning radio program or awards show that an employee would need to bleep or edit. And if the FCC disagreed with the interpretation, CBS’ failure had been at most an “unintended omission” in an otherwise extensive, good-faith effort to comply with the agreement that included installing editing systems at radio stations, audio and video delays at TV stations, and training staffers about compliance with indecency laws.

CBS said it did not think it should be subject to any sanctions, and did not think it had to take various steps spelled out in the agreement, specifically launching an investigation and suspending employees.

A Waste Of Time?

“Bovine excrement,” said PTC president Tim Winter in response to CBS’ contention. “If the CBS consent decree summarily dismissed tens of thousands of broadcast indecency complaints related to the original broadcast of the Without a Trace episode,” he said, “how would its re-airing weeks after signing the consent decree, resulting in thousands of additional complaints and resulting in the NAL [Notice of Apparent Liability], not apply?”

The December 2004 airing of the Without a Trace episode had particularly incensed the PTC, the most vocal complainer about TV content, because it was a repeat of an earlier episode that had been the subject of thousands of complaints the FCC had expunged weeks before, after which Viacom paid $3.5 million and agreed to police itself.

In this case, however, Winter isn’t convinced the commission has the stomach for a fight with CBS over KUTV’s license.

In a letter to FCC Chairman Kevin Martin and the other commissioners, Winter suggested that the FCC either designate the license for hearing based on what he calls CBS’ breach of the consent decree agreement, or “You return the benefit that they received.” Citing all the indecency complaints dismissed, Winter further recommended to the chairman and commissioners that they “reopen every one of those and rule on the merits of each one.”

But after an unsatisfactory meeting with an FCC official, Winter acknowledged his doubts about action. “It seems [the FCC and CBS] have been looking for a resolution of this to make it all go away as opposed to making the difficult decision.” he said. “It is very frustrating.”

Differing Indecency Opinions

CBS maintains the show was not indecent. It challenged the FCC’s March 2006 fine almost immediately, and the commission has still not acted on that appeal, though with its indecency actions on appeal in various courts, it has been keeping a low indecency enforcement profile until it gets some direction on which way to go.

T. Barton Carter, professor of law and communications at Boston University, called CBS’ response to the FCC a “perfectly reasonable argument, though I am not sure it is entirely persuasive.” But he agreed that the FCC may be in a mood to be persuaded. “I wouldn’t be surprised if the FCC…decided that this is not the right time to take an at least arguable case to the extreme.”

John Crigler, a partner with Garvey Schubert Barer in Washington and an experienced First Amendment attorney dealing in indecency defenses, said he thought CBS had a good argument: “Their plan was to train the on-air people for live programs.” He said he would be surprised if the FCC let this go, however, saying that since the FCC’s jurisdiction over all the new cases is in doubt, it has all the jurisdiction it needs over a past consent decree and this would be an opportunity to “keep the indecency vampire alive.”

Crigler conceded, however, that the commission might not want to ratchet it up with CBS, given that the Janet Jackson case is currently being decided in a federal appeals court. “One of the issues is whether the commission uses restraint in its enforcement of indecency rules,” he said. “They might not want to look bad in front of the court.”