NAB: FCC Should Officially Reverse Fleeting Indecency Enforcement

Also Wants to Put FCC on shot Clock for Resolving Complaints

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 appy 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 Multichannel News 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.