The National Association of Broadcasters and Radio Television Digital News Association have joined WDBJ TV Roanoke, Va., in its challenge to the FCC's proposed indecency fine, saying the FCC's Notice of Apparent Liability [NAL] did not square with relevant law, common sense of fundamental fairness and that the FCC appeared to be passing judgment on the new value of the story.
In comments on the FCC fine proposal, they ask the commission to rescind the proposed fine and reform its indecency policy.
CBS affiliate WDBJ-TV Roanoke, Va., earlier this month filed its opposition to the FCC's proposed $325,000 indecency fine — the maximum — which the commission imposed for a brief video clip, albeit of a sexual organ, which the station says was inadvertently included in a story about a "controversy in Cave Spring, Va." The story was about a former adult film star working for the rescue squad.
The station said it failed to notice the image, which was on the fringes of screen grab pulled from a website. It apologized, but told the FCC: "[T]he First Amendment does not allow the FCC to ‘throw the book’ at a station for unintentionally including a fleeting inappropriate image in a newscast about a legitimate story."
NAB and RTDNA said the issue reached beyond a single station or fine. "From the broader industry perspective, the NAL is disquieting because it improperly intrudes into broadcasters’ editorial discretion. In particular, the extraordinarily punitive nature of the fine and the accompanying discussion in the NAL raise the specter that the Commission’s subjective view of the merit of WDBJ’s underlying news story drove the unprecedented decision here. As such, the FCC’s action is a direct affront to First Amendment values that undoubtedly will further chill broadcast speech."
They argued that from the FCC's description of the story and how the information was gathered "strongly suggests that the Commission proposed an unprecedented fine because it disapproved of the licensee’s decision to broadcast a story about a former female adult film star who subsequently became an Emergency Medical Technician volunteer."
NAB and RTDNA argued that, as the station had asserted, the segment "involved the subject of a legitimate public controversy, and the station exercised its editorial discretion to determine that debate was of sufficient public interest to warrant news treatment."
They say the FCC action chills speech and does not square with the restrained indecency approach signaled by the Supreme Court. "[T]he WDBJ NAL offends the Constitution, the APA, and the Communications Act," they said flatly.
They also asked the FCC to wrap up an open proceeding on how to proceed on indecency enforcement in a way that will provide some clarity.
