The FCC is considering codifying chairman Julius Genachowski's
direction to the enforcement bureau last fall that it only pursue "egregious"
indecency complaints, a course change from the "fleeting" indecency
pursuit that seemed to occupy much of the FCC's attention under previous
chairman Kevin Martin to the more restrained approach of previous FCC's.
The FCC put out a public notice Monday detailing the
reduction in the complaint backlog, talking about the enforcement bureau's new
marching orders, and seeking comment on whether that "egregious"
standard should be adopted as the FCC's new approach post-FCC v. Fox (see below). But with a 90-day window for
that comment, adopting an "egregious" standard more formally almost
certainly has to be the call of the next chairman. Genachowski has announced
his exit, expected by the end of this month.
The notice asks whether the FCC should continue that
"egregious" policy, which was achieved "principally by closing pending
complaints that were beyond the statute of limitations or too stale to pursue,
that involved cases outside FCC jurisdiction, that contained insufficient
information, or that were foreclosed by settled precedent."
It also asks whether it should revert to its policy of
requiring repeated rather than isolated utterances for an indecency finding, or
treat isolated, "non-sexual" nudity different from isolated profanity. While the
FCC is gathering comment for a possible future decision, the "egregious" policy
remains in place.
The notice does not define what the FCC has been considering "egregious" in determining what meets that standard, but a spokesperson did refer to this 2001 guidance from the commission, signaling the examples there met the standard. The notice also makes clear that the FCC will review and take action against such egregious complaints.
The direction from the chairman to only go after egregious
cases, which B&C reported back in
February, followed the Supreme Court decision in FCC v. Fox decision that the
FCC's fleeting indecency and profanity enforcement policy, at least as applied,
wastoo vague. The court did not find the regime unconstitutional, but said it
was applied with insufficient notice, which violates administrative procedure.
The current FCC has spent several years defending previous
efforts to regulate fleeting nudity and profanity. But last September, the
commission dropped its pursuit of Fox over nonpayment of a 2003 indecency fine
for Married by America, dismissing a
suit in D.C. District court.
Although the FCC has defended the fleeting indecency
enforcement policy in court, the chairman has been far more focused on
broadband than on parsing content. Under the new "egregious-only"
standard, the chairman has been able to reduce the million-plus complaint
backlog by 70%, according to the commission.
"In the wake of the Supreme Court's decision in Fox v. FCC,
the Commission is reviewing its indecency enforcement policy to ensure the
agency carries out Congress' directive in a manner consistent with vital First
Amendment principles," Genachowski said back when the FCC stopped seeking the
Fox payment. "In the interim, I have directed the Enforcement Bureau to focus
its resources on the strongest cases that involve egregious indecency
violations. We also will continue to reduce the backlog of pending indecency
According to sources, the chairman's point was not that the
FCC was going to focus on indecency, but that it was only going to pursue
complaints in extreme cases, similar to the commission's comparatively hands-off
policy prior to the '04 Super Bowl. The chairman now wants to know if that
interim policy should be the new norm going forward.
The FCC's indecency enforcement regime applies
to broadcasters, not cable operators, and only to the TV stations carrying the
shows, not the networks or program distributors.
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