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FCC Indecency Actions a No-Show

While it has been a year filled with breast-beating, regulatory threats, and hearings on the issue of indecent content and growing viewer complaint, it appears it will also be a year without any proposed fines.

With no-indecency related items on the FCC's just-released list of daily actions, with Chairman Kevin Martin and Commissioners Michael Copps and Jonathan Adelstein not around Friday, and with everybody exiting four hours early for the holidays (except for a skeleton crew to make sure the bureaus are staffed), it looks as though, for the first time since at least 1993, the FCC will take no indecency actions--proposed fines or dismissals--in 2005.

That would be quite a contrast to the $7,928,080 in fines proposed in 2004.

A source close to one commissioner had late last month said the Media Bureau was  even then editing a group of TV complaints, though the package had not gone up to the commissioners for their review and comment. A second package of radio complaints was expected to be released in January.

The commission turnover--Kathleen Abernathy exited in early December--may have played a role in the delay, though Abernathy had told B&C she expected the actions to be released by the end of the year.

Not expected whenever they do come out are decisions on challenges to the commission's ruling that the f-word is indecent as an adjective (the Bono decision) and that Janet Jackson's partially unclad breast is, well, just indecent.

It seemed unlikely that Martin would let the year pass without action on the complaints. He has made it clear he takes seriously the congressional mandate to regulate indecency, and even hired former anti-indecency activist Penny Nance as a policy advisor and to help make the indecency complaint process easier.

While asserting that the FCC, by design, was more reactive than proactive, Martin told Fox News Channel's Stuart Varney in April: "We have complaints that were filed before us and we end up having to do something with those complaints, either proceed with those or dismiss them. But we have to take some action in response to the complaints that were filed with us."

One reason that no actions were taken earlier in the year is that a lot of the complaints went away. A number of major media companies--including Viacom, Clear Channel, and Emmis Communications--had already settled a host of both proposed fines and outstanding complaints through consent decrees with both dollars and pledges to crack down on content the FCC doesn't like.

Last November, for example, Viacom settled all its outstanding complaints, except Janet Jackson, for $3.5 million.
Still, 189,362 complaints were filed in 2005, more than in any year except 2004, when the Super Bowl pushed that number to over a million. And the 2005 complaints were against 720 broadcast and cable programs, according to the FCC's last published count, which is more than twice the number of shows complained about in 2004.

Only 84 of those 2005 complaints were against cable shows, but that is still more than double the previous high of  38 drawing complaints in 2002. Those cable complaints will wind up in the dismissed pile, however, since the FCC lacks the authority to regulate cable indecency, though there are some in Congress who want to find a way to give it that power.

The TV package is said to be a mix of denials and proposed fines that, taken together and signed off on by the commissioners, are meant to be a better guide to what the FCC thinks is indecent, though it will lack the guidance that the Bono and Jackson reviews would provide.

Martin is said to have wanted them to come out as a group and voted on by the commissioner so broadcasters could more easily determine the commission's intent.

Enforcement Bureau notices of apparent liability, or complaint denials, do not have to be voted on by the commissioners. For instance, the initial finding that the Bono f-word on NBC's Golden Globes broadcast was not indecent was not voted on by the commissioners, while the reversal of that decision was.

But FCC indecency fines provide broadcasters with guidance on what they can program. Without a clear statutory definition, that guidance is the sum of past FCC decisions to sanction or not to, or in the case of Bono, both.

The move to have the commissioners routinely weigh in actually began under former FCC Chairman Michael Powell.