WASHINGTON — The Federal Communications Commission is considering codifying chairman Julius Genachowksi'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 agency's attention under previous chairman Kevin Martin to the more restrained approach of previous commissions.
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 have 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 direction from the chairman to only go after egregious cases, which Multichannel News reported in February, followed the Supreme Court decision in FCC v. Foxthat the FCC's fleeting indecency and profanity enforcement policy, at least as applied, was too 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 complaints.”
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.