The Parents Television Council is not happy with the FCC's announcement Monday that it would collect public comment on its application of an "egregious" standard to indecency complaints.
Using that standard, signaled by FCC chairman Julius Genachowski last September after the commission declined to continue to pursue Fox for nonpayment of an indecency fine, the FCC's Enforcement Bureau says it has dismissed more than a million indecency complaints, or 70% of a backlog that had built while the agency was defending its "fleeting" indecency regime in the courts.
In a statement, PTC president Tim Winter took aim with what he said had already been the "unilateral" adoption of that "egregious" standard by either the chairman or the Enforcement Bureau without notice or public comment, which he called "an outrage." PTC has filed a half-dozen indecency complaints in the past three and a half years.
"The FCC's announcement is deeply vexing for at least three reasons," said Winter. "It unnecessarily weakens a decency law that withstood a ferocious, ten-year constitutional attack waged by the broadcast industry. It invites yet another wave of special interest pressure to obviate the intent of Congress and the will of the American people. And it connotes a change in indecency enforcement policy at the FCC that nobody knew about...Either material is legally indecent or it is not. It is unnecessary for indecent content to be repeated many times in order to be actionable, and it is unwise for the FCC to pursue a new course which will guarantee nothing but a new rash of new litigation."
Actually,B&C reported in February that the September announcement signaled the chairman's desire to dodge the pressure to resume a crackdown on indecency, and instead keep its attention focused on broadband.
A commission source speaking not for attribution said the FCC had closed the book on many of those million complaints because after years of litigation-imposed delay, the factual records underlying the cases were deemed too stale. Other cases were closed because the underlying complaints addressed matters beyond the FCC's jurisdiction - such as programming on satellite or cable, or broadcasts during the "safe harbor: hours (between 10 pm and 6 a.m.), or were foreclosed by existing precedent."
The FCC, which has asked for input on whether it should formally adopt the "egregious" standard, did not define that standard, although it did release a 2001 FCC enforcement policy statement with examples it indicated would be egregious. While that guidance suggested repetition was part of egregiousness that would trigger bigger fines, the FCC source said that something would not have to be repeated to be indecent. "[R]epetition may be an element of determining whether a case is egregious, but the context and content matter so that some material could be considered egregious even if only broadcast once and not repeated."