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NAB: FCC Should Officially Reverse Fleeting Indecency Enforcement

The National Association of Broadcasters
wants the FCC to officially deep-six its fleeting indecency and profanity
enforcement regime, and reconsider whether it is fair--NAB suggests it is
not--to continue to apply content regs on broadcasters it does not apply on
cable or satellite or over-the-top programming distributors. But however it
decides to approach indecency, NAB wants it to do so
without the kind of foot-dragging that often leaves broadcasters with licenses
in limbo, additional costs, and with no legal redress for extended periods.

As B&C/Multi
first reported, since last fall, the FCC has stepped back from its fleeting
enforcement to a policy of only pursuing "egregious" complaints as a
way to work through a backlog of over a million complaints. But the FCC also
asked for comment on whether the "egregious complaints" policy should
be the rule of the road going forward.

NAB says that at a
minimum the commission should reverse its policy that fleeting expletives of
nudity are actionably indecent. "[T]he FCC's current policy toward
fleeting material is unpredictable and inconsistent and unconstitutionally
chills speech," NAB wrote. "[T]he
record here simply contains no basis for the Commission to decline to reverse
this unwarranted policy."

NAB would prefer that
the FCC take a deeper dive into the fundamental issue, which it says is whether
"disparate regulation of broadcast outlets" in a multichannel world
"can be squared with the statutory prohibition against censoring broadcast
content and the First Amendment."

But in the meantime,
NAB says, the FCC has to speed the complaint
process. It points out that a complaint, some of which can take years to
resolve, often results in the hold-up of license renewals or transfers, making
refinancing or other actions more costly. That hold-up can occur even before
the FCC gets to the merits of a complaint, NAB points out.
"Foreclosing judicial review eliminates the only available safeguard
against arbitrary and/or unconstitutional indecency enforcement, and results in
more extensive self-censorship," says NAB.

NAB wants the FCC to
require more documentation of complaints--"[t]he Commission should dismiss
with prejudice [they cannot be refiled] complaints that lack the requisite
information and declarations," NAB says. It also wants
the commission to put complaints and FCC decisions about them on a shot clock.

While it was the FCC
under Julius Genachowski that initiated the "egregious" enforcement
policy, it will be a Mignon Clyburn-led FCC, or more likely a Tom Wheeler-led
commission, that decides how to proceed.