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Editorial: No Content Crackdown, Please

The FCC has concluded that a Spanish-language radio broadcast from over a decade ago was actionable under indecency rules, and the station had to pay $10,000 to settle with the commission.

It is the first indecency action under FCC chairman Ajit Pai, and came only 10 weeks into his tenure.

For those not looking for a new crackdown on content, that was at first blush a troubling sign. In previous Republican administrations, the FCC has been aggressive on the indecency front, particularly after Janet Jackson and Justin Timberlake combined to get Congress’ knickers in a twist over the 2004 Super Bowl halftime reveal. It got to the point where a pacifier wedged in a diaper drew FCC attention.

Pai has said that, as a father, he wants his kids to have a wholesome experience when watching broadcasts, such as the Grammys. That citing came in response to Adele’s F-bomb on this year’s awards ceremony, calling out a genre famous, or infamous, for the occasional expletive. Fair enough as advice from a father of young children, so long as it doesn’t extend beyond his den.

One veteran attorney who has long fought in the legal trenches against government censorship says he does not see the settlement as necessarily a red flag.

“The consent decree tells us that the Media Bureau is eager to dispose of a license renewal challenge that has been pending for more than a decade, but tells us relatively little about what indecency policy the commission will pursue,” said prominent First Amendment attorney John Crigler, a partner with Garvey Schubert Barer.

“The issue arose in the context of a 2006 license renewal application,” Crigler said. “It is a Media Bureau, not an Enforcement Bureau or commission- level decision. The central issue is whether 2006 and 2014 license renewal applications can be granted. The penalty negotiated was based upon a conclusion that the broadcast in question did not raise questions about the licensee character, but ‘could support a forfeiture proceeding,’” he told B&C.

Crigler sees the FCC move as a way to save the resources that it would have taken to pursue the complaint further, not as a signal it will be pursuing broadcast content. We hope that assessment is correct.

An indecency settlement was released in the early days of chairman Tom Wheeler, Pai’s predecessor, but the FCC then proved to be quiet on the indecency front during Wheeler’s term. He had signaled early on that, as a grandfather, he would use the bully pulpit to call broadcasters to the better angels of their programming natures, but his agenda did not include a content crackdown.

We know there is an indecency law on the books, and recognize that it is the FCC’s job to investigate complaints when they are lodged—something Pai has also pointed out since taking over in January. But the new chairman has enough on his agenda with closing the digital divide and coming up with new approaches to broadband privacy and network neutrality without adding the thorny thicket of aggressive policing of content to the list.