Professional Documents
Culture Documents
In the Matter of )
)
Adopting Egregious Cases Policy ) GN Docket No. 13-86
)
)
Terri Minatra
General Counsel and Vice President
OfLegal and Business Affairs
Michael Riksen
Vice President, Policy and Representation
Rishi Hingoraney
Director of Public Policy and Legislation
Gregory A. Lewis
Deputy General Counsel
Brian Rideout
Counsel
Stuart Harding
Visiting Fellow
June 19,2013
Summarv
prohibition on the broadcast of indecent and profane content. Lost amid the furor over a few
high-profile incidents has been the deleterious effect of the Commission's enforcement efforts on
enforcement would better accommodate the protected speech of public radio broadcasters and
better allocate Commission resources, NPR endorses the proposed "egregious cases" approach.
Public radio broadcasters share a public service mission to offer news, information, and
cultural programming, a mission that necessarily requires balancing the presentation of important
content to and respect for the sensitivities of an increasingly diverse public. The Commission's
"zero tolerance" approach, combined with the prospect of extreme fmancial penalty, has chilled
speech and compounded the risk public broadcasters must take, given the inherent vagueness of
defining indecency and profanity in particular cases. The Commission's "zero tolerance"
approach also appears to have discouraged the routine dismissal of unfounded indecency and
profanity complaints, causing extensive delays in station license renewals and imposing related
costs on public radio stations. By focusing Commission enforcement efforts on egregious cases
of deliberate pandering, the Commission can strike a more appropriate balance that better serves
The Commission should also take this opportunity to clarify its indecency and profanity
enforcement policy in other important respects. In particular, the Commission should reiterate
and clarify the deference it accords news and public affairs programming, which lies at the heart
of the First Amendment speech and press protections. In addition, the Commission's forfeiture
authority is now both substantially greater and less well-defmed than it ever has been, and the
Commission should use this opportunity to clarify and limit the scope of its discretion.
TABLE OF CONTENTS
II. The CollllTiission Should Adopt Other Policy Clarifications To Better Balance
The Objectives Underlying the Indecency Prohibition With The First
Amendment 's Protection of Speech ............ . . . . . .... . . . . . . . . . .. . . . . 11
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ii
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554
In the Matter of )
)
Adopting Egregious Cases Policy ) GN Docket No. 13-86
)
)
COMMENTS OF
NATIONAL PUBLIC RADIO, INC.
Introduction
National Public Radio, Inc. ("NPR") hereby comments on the adoption of an "egregious
cases" policy for enforcing the statutory proscription on the broadcast of indecent and profane
noncommercial educational programming through more than 900 public radio stations
nationwide. In addition to broadcasting award winning NPR programming, including All Things
Considered and Morning Edition, NPR affiliated stations are themselves significant program
producers and community institutions. NPR also operates the Public Radio Satellite
Interc01mection System and provides representation and other services to its Member stations.
informational programming with correspondents and reporters based in 34 U.S. and foreign
Public Notice, GN Docket No. 13-86, DA 13-581 (Apr. I, 2013) [hereinafter "Public
Notice").
bureaus? NPR produces hundreds of hours of original programming each week, heard by a
weekly audience of 26 million listeners, and NPR has been honored with literally hundreds of
awards for its coverage of world events. 3 Other celebrated public radio producers also offer
signature news and information, public affairs, and cultural programs, including Marketplace,
from American Public Media; Fresh Air, from WHYY; This American Life, from
WBEZ/Chicago Public Media; and The Diane Rehm Show, from W AMU/ American University.
The common thread among public radio producers and stations is a public service
mission to offer news, information, and cultural programming that is responsive to the needs of
the public -- locally, regionally and nationally; that constitutes an expression of diversity and
excellence; that involves creative risks; and that serves as an alternative to the mass media. This
mission is represented in the mission statements of individual public radio producers and station
licensees. 4 It is also reflective of the Federal policy underlying the public broadcasting system
itsel 5
the issues of the day, featuring authentic voices and ambient sound. Rather than merely
conveying the substance of a news report through a host or reporter, public radio programming
2
See www.npr.org/about/aboutnpr.
3
www.npr.org/about/press/awards.html.
4
See,~' www.npr.org/about/aboutnpr/mission.html (''To accomplish [NPR's] mission,
we produce, acquire, and distribute programming that meets the highest standards of public
service in journalism and cultural expression"); americanpublicmedia.publicradio.org/about/
mission ("[American Public Media's] [m]ission is to enrich the mind and nourish the spirit,
thereby assisting our audiences to enhance their lives, expand perspectives and strengthen their
communities."); www.pri.org/about-pri.html ("Public Radio Intemational's mission is to serve
audiences as a distinctive content source for information, insights and cultural experiences
essential to living in our diverse, interconnected world.").
5
See 47 U.S.C. 396(a)(5), (6).
2
features interviews and recorded sound whenever possible so that the listener can hear the story
told through the participants' actual voices as much as possible. Public radio also uses ambient
The right sound - the whine of an air raid siren in wartime, the echoes in a
building abandoned because of a chemical spill, the roar of a trading pit in
Chicago - can substitute for dozens or hundreds of words, and can be as
descriptive and evocative as a photograph. 6
Such "reporting with your ears" makes public radio journalism unique among its news media
7
peers.
The primary audience of public radio programming is adults, and the largest audience
listens during the morning and late afternoon commuting times. Public radio producers and
stations nonetheless exercise careful editorial judgment, recognizing that its audience consists of
listeners of all ages and a wide range of backgrounds, interests, and tastes. Accordingly, no
potentially offensive language or matter is intentionally broadcast gratuitously, and the vast
majority of public radio progratmning contains no language or other content that would be
offensive to listeners.
On occasion, however, and only after careful consideration, public radio stations and
producers will make an editorial determination that the exclusion of authentic audio or other
potentially offensive language will so change the quality of the program content that
public radio producers and stations will sometimes include, but obscure, particular audio
when necessary to properly convey a news story but in a manner that should not offend
6
Kern, J., Sound Reporting: The NPR Guide to Audio Journalism and Production 3 (The
University of Chicago Press 2008).
7
3
listeners. Of course, all broadcasters are susceptible to technical snafus, spontaneous
utterances during live programming, including call-in programs, and other unintended
occurrences, and public radio broadcasters attempt to avoid such occurrences as much as
humanly possible and as available resources permit. Ultimately, the decision how best to
present programming in the public interest warrants the Commission's respect and
deference unless the Commission has reason to conclude that a more base motive is at work.
enforcing the statutory prohibition against the broadcast of profane or indecent matter8 to focus
on egregious cases rather than isolated, or "fleeting," utterances. 9 The Commission's attempt to
investigate every isolated utterance of potentially objectionable language, combined with the
threat of extreme financial penalty, has only undermined the Commission's enforcement efforts,
chilled broadcast speech, and otherwise burdened responsible broadcasters. By adopting a more
restrained indecency enforcement approach, the Commission can better direct its enforcement
efforts and accord more appropriate respect for the First Amendment rights of public radio
8
47 U.S.C. 1464.
9
While NPR believes it is well past time to reconsider the legal and factual bases fo r
according over-the-air broadcast media the most limited First Amendment protection, see FCC
v. Pacifica Foundation, 438 U.S. 726, 748-50 (1978), we assume the constitutionality of
broadcast indecency regulation solely for purposes of conunenting on the specific issues raised
in the Public Notice.
4
A. Attempting To Sanction Every Indecent or Profane Utterance Significantly
Burdens Public Radio Stations And Other Program Producers
Since the Conunission adopted its "fleeting utterances" policy, 10 attempting to sanction
every instance of broadcast indecency, no matter how fleeting, has proven to be counter-
productive. In announcing and justifying the policy shift, the Commission reasoned from the
underlying statute and prior Commission and judicial decisions to explain why even an isolated
utterance could fall within the statutory prohibition. 11 In undertaking a largely academic
exercise, however, the Commission failed to consider the practical consequences of attempting to
significant. NPR, its Members, and other public radio broadcasters have been forced to reconcile
the sometimes competing demands to produce progranuning that serves the public interest while
avoiding broadcasting indecent or profane matter. Because the public interest may require the
use of language or other broadcast matter that is potentially objectionable to some, the task is far
For responsible broadcasters like NPR, its Members, and others in public radio, the
10
See Complaints Against Various Broadcast Licensees Regarding Their Airing of the
"Golden Globe Awards" Program, Memorandum Opinion and Order, 19 FCC Red. 4975, 4980
(2004) [hereinafter "Golden Globe Awards"].
II
See id., 19 FCC Red. at 4979-82.
12
Indeed, the Commission appears to have assumed that, because a broadcast station could
prevent the broadcast of an isolated utterance through technological means, see id. at 4980, there
would be no practical consequences. See id. (noting that ''technological advances have made it
possible as a general matter to prevent the broadcast of a single offending word or action without
blocking or disproportionately disrupting the message of the speaker or performer").
13
See id. at 4982 ("We note that one way broadcasters can easily ensure that they are not
subject to enforcement action under our decision today is to adopt and successfully implement a
delay/bleeping system for live broadcasts.").
5
obligation to serve the public interest is more than a statutory mandate; 14 it goes to the heart of
our public service mission. 15 Serving the public interest requires an ongoing assessment of local
community needs and interests to make appropriate programming decisions. News and public
affairs programs, in particular, require the producer to make editorial determinations based on
the issue(s) being addressed, the substance of the programming, and the make-up and needs of
more difficult for two reasons. First, while the Commission has attempted to provide guidance
to make enforcement decisions transparent, the results have been inconsistent at best. The
Commission has determined that the use of certain words are appropriate when used in war-
themed fictional films, 16 but are inappropriate in a documentary about "blues" music. 17 Indeed,
the Commission justified its stepped up enforcement efforts to protect impressionable viewers
14
li, 47 U.S. C. 309(a) (authorizing the issuance, renewal, or modification of broadcast
station licenses upon a finding that the public interest, convenience, or necessity would be served
thereby).
15
Congress recognized more than 45 years ago that "[l]ocal stations are the bedrock of this
system and as such must be responsive to the needs and desires ofthe public which they serve."
S. Rep. No. 222, 90th Cong., 1st Sess. 7 (1967). Today, public radio stations comprise a broad
range of public and private, community-based organizations, including non-profit community
groups, colleges and universities, school boards and other local governmental entities, and state
governmental entities.
16
In the Matter of Complaints Against Various Television Licensees Regarding Their
Broadcast on November 11, 2004, ofthe ABC Television Network's Presentation of the Film
"Saving Private Ryan", 20 F.C.C. Red. 4507,4513 (2005).
17
Complaints Regarding Various Television Broadcasts Between February 2, 2002 and
March 8, 2005, Notices of Apparent Liability and Memorandum Opinion and Order, 21 FCC
Red. 2664, 2685 (2006) [hereinafter "Omnibus Order"].
6
and listeners from having to absorb "the first blow" as a general matter, 18 but it has accorded
broadcasting indecent matter, and the Commission has sought to expand its discretion by
signaling its willingness to impose forfeitures for each of multiple utterances broadcast by a
station and for each station broadcasting network distributed progranuning. 20 The threat of
severe financial penalties necessarily "chills" speech. The threat of an indecency complaint, let
alone a substantial forfe iture, forces broadcasters to refrain from broadcasting progranuning the
broadcaster would otherwise offer in the public interest. Broadcasting live programming is
Together, uncertainty over the contours of the indecency and profanity prohibition,
have forced responsible broadcast stations and program producers to pursue public interest
affected public radio and other broadcast stations in another, less obvious way. Even an
18
Complaints Regarding Various Television Broadcasts Between February 2. 2002 and
March 8. 2005, Order, 21 FCC Red. 13299, 13308 (2006) (hereinafter "Remand Order"].
19
See Omnibus Order, 21 FCC Red. at 2699.
20
See infra Section II.B ..
7
indecency complaint that is demonstrably unfounded can force broadcast licensees to retain legal
counsel, allocate intemal resources, and incur other out of pocket expenses attempting to
ascertain the basis for the complaint and how to resolve it. The pendency of a complaint often
results in extensive delays in renewing a station license even when the merits of a complaint are
debatable at best. Stations do not want to admit responsibility for broadcasting matter they
believe was not indecent or profane, and the Commission has no incentive to grant license
renewals if it believes there may be merit to a complaint because a renewal will absolve a station
While Commission staff should be able to act promptly on an indecency complaint that
fails to allege a violation ofthe Commission's indecency and profanity policy, 22 several factors,
including the Commission's "zero tolerance" approach to enforcement, explain why that has not
been the case. First, electronic communications technology has transformed and facilitated the
process,23 including a complaint form. 24 As reported in the Public Notice itself, the ease of
Second, the Commission's attempt to sanction every indecent utterance, no matter how
21
The Communications Act prevents the Commission from issuing a Notice of Apparent
Liability (''NAL") for conduct occurring more than one year prior to the NAL or prior to the
commencement ofthe licensee 's current license term, whichever is earlier. See 47 U.S.C.
503(b)(6); 47 C.F.R. 1.80(c). By "holding" an indecency complaint, the Commission can
extend the licensee's ''current license term," and thereby avoid the one-year statute of
limitations.
22
The Public Notice reports that "more than one million complaints," representing 70% of
the pending backlog of indecency complaints, were dismissed during the 6 month period from
September 2012 through March 2013. Public Notice at 1.
23
www.fcc.gov/complaints.
24
apps.fcc.gov/cgb/fcc475B.cfm.
8
fleeting, means that every complaint could potentially result in a notice of apparent liability and
forfeiture. Previously, the second step of the Commission's two-step indecency analysis
The principal factors that have proved significant in our decisions to date are: (I)
the explicitness or graphic nature of the description or depiction of sexual or
excretory organs or activities; (2) whether the material dwells on or repeats at
length descriptions of sexual or excretory organs or activities; (3) whether the
material appears to pander or is used to titillate, or whether the material appears to
have been presented for its shock value. In assessing all of the factors, and
particularly the third factor, the overall context of the broadcast in which the
disputed material appeared is critical. 26
With the abrupt change in the Commission's approach to indecency enforcement, even a single
fleeting utterance can provide the basis of an indecency investigation. It is not surprising,
therefore, that Commission staff may feel compelled to retain complaints until a future
fleeting utterances has put pressure on responsible broadcasters to avoid programming that might
investigation, and forfeiture. Compounding the problem has been a lack of clear and consistent
25
See In the Matter oflndustry Guidance on the Commission's Case Law Interpreting 18
U.S .C. 1464 and Enforcement Policies Regarding Broadcast Indecency, 16 FCC Red. 7999
(200 1) [hereinafter "200 1 Indecency Policy Guidance"].
26
Id. at 8003.
27
Such a protracted process also calls into question the constitutionality of the current
indecency policy. Licensees that have their license renewals held up for months, if not years,
based on what appears to be an unfounded complaint are being compelled to comply with
speech-restrictions that are anything but transparent and rational.
9
Commission guidance and the prospect of potentially crippling financial penalties. As a result of
the Conunission's "zero tolerance" approach, broadcasters have been forced to pursue their
mission of offering programming they believe best serves the public interest at a substantial risk
of harm.
matter would reduce the threat to responsible broadcasters. Moreover, such an approach would
focus Commission enforcement efforts on those complaints that are most likely to offend and
harm listeners, thereby conserving scarce Commission resources and limiting the adverse
providing greater room for editorial discretion, an egregious cases approach allows a station or
program producer to make progranuning decisions knowing the Commission will pursue abuses
practical approach to indecency and profanity enforcement, the Commission staff could routinely
dismiss complaints about broadcast matters that may involve an isolated anatomical reference or
Although context always matters, as the Commission has repeatedly and correctly
28
See 21 FCC Red. at 2686 ("Although in this case the profane language may have had
some communicative purpose, we do not believe that San Mateo has demonstrated that it was
essential to the nature of an artistic or educational work or essential to informing viewers on a
matter of public importance, or that the substitution of other language would have materially
altered the nature of the work. In this respect, this case is unlike Saving Private Ryan, where we
concluded that deleting offensive words "would have altered the nature of the artistic work and
diminished the power, realism and immediacy ofthe film experience for viewers.").
29
See 2001 Indecency Policy Guidance, 16 FCC Red. at 8002 "(In determining whether
material is patently offensive, the full context in which the material appeared is critically
important.").
10
matter that involves the deliberate use of offensive material to pander, shock, or titillate. 30 NPR
therefore agrees that the Commission's decision in Pacifica Foundation. Inc. 3 1 provides
important guidance for future indecency enforcement. 32 As the Commission there observed, "If
a complaint focuses solely on the use of expletives, we believe that under the legal standard set
forth in Pacifica, deliberate and repetitive use in a patently offensive manner is a requisite to a
finding of indecency. " 33 Attempting to prevent all future broadcast indecency by seeking to
punish every allegedly indecent or profane utterance clearly has not achieved the desired
objective. By focusing more specifically on the graphic and repeated use of sexual or excretory
language broadcast with the intention to pander, shock, or titillate, the Commission wiii more
effectively achieve its objective and avoid harming responsible broadcasters, including public
II. The Commission Should Adopt Other Policy Clarifications To Better Balance The
Objectives Underlying the Indecency Prohibition With The First Amendment's
Protection of Speech
A. The Commission Should Adopt A More Explicit And Expansive Safe Harbor
For News- and Public Affairs-Oriented Matter
Beyond adopting an "egregious cases" policy for enforcing the indecency and profanity
prohibition, the Commission should clarify that news and public affairs progranuning is entitled
to even greater deference, notwithstanding the potentially offensive matter that may be included
30
Indeed, the Commission had previously said that ''whether the material appears to pander
or is used to titillate or whether the material appears to have been presented for it shock value"
was particularly important in evaluating the overall context of the broadcast at issue. 2001
Indecency Policy Guidance, 16 FCC Red. at 8003.
31
2 FCC Red. 2698 (1987).
32
See Public Notice at 1.
33
Id., 2 FCC Red. at 2699 (emphasis added).
11
within such programming. According greater latitude for the broadcast of news and public
affairs programming would better respect and protect the First Amendment rights of responsible
broadcasters, while allowing the Commission to punish those broadcasters that may seek to
broadcast offensive matter purely for its shock value or to pander or titillate.
programming. 34 In the Peter Branton case, for example, the Commission stated, "we
traditionally have been reluctant to intervene in the editorial judgments of broadcast licensees on
how best to present serious public affairs programming to their listeners." 35 Likewise, a
broadcast presentation of sexual issues in the context of a sex education class was deemed not
indecent because it was presented in a clinical or instructional manner rather than in a pandering,
More recent Commission decisions have created uncertainty regarding the applicability
of the Commission's indecency policy to news and public affairs progranuning. First, in
adopting its "fleeting utterances" policy, the Commission essentially reduced to one the three
34
See Remand Order, 21 FCC Red. at 13327 (characterizing the denial of an indecency
complaint regarding material broadcast during "The Today Show" as a "restrained approach
[that] is consistent with a long line of Commission precedent").
35
Peter Branton, 6 FCC Red 61 0, 61 0 ( 1991 ). In Branton, the Commission decided that an
NPR news story on Jolm Gotti, which included a wiretap of a conversation in which Gotti
repeatedly used variations of the "F-Word," was not indecent because the language was an
integral part of a bona fide news story and not used gratuitously or to pander or titillate. Peter
Branton, 6 FCC Red. at 610.
36
King Broadcasting Co. (KING-TV), 5 FCC Red. 2971 ( 1990).
12
standards 37; that factor is the explicitness or graphic nature of the description or depiction, which
Then, the Commission applied its " fleeting utterance" policy to a news interview, finding
the isolated use of the word "bullshitter" on CBS's The Early Show to be "shocking and
subsequently reversed itself,40 the resolution of the matter left the extent of the Commission's
deference to bona fide news or public affairs programming uncertain. Thus, notwithstanding the
denial ofthe complaint in that matter, the Commission's decision also noted that, ''to be sure,
there is no outright news exemption from our indecency rules." 41 More importantly, the
Commission denied the complaint, "regardless of whether such language would be actionable in
37
Previously, the Commission's cases focused on the following factors: (1) "the
explicitness or graphic nature of the description or depiction"; (2) ''whether the material dwells
on or repeats at length the description or depiction"; and (3) ''whether the material appears to
pander or is used to titillate, or whether the material appears to have been presented for its shock
value." 2001 Indecency Policy Guidance, 16 FCC Red. at 8003.
38
Golden Globe Awards, 19 FCC Red. at 4979. Compare Indecency Policy Guidance, 16
FCC Red. at 8003 ("no single factor generally provides the basis for an indecency finding").
39
Omnibus Order, 21 FCC Red. at 2699 (emphasis added).
40
Complaints Regarding Various Television Broadcasts Between February 2, 2002 and
March 8, 2005, 21 FCC Red. 13299, 13328 (2006) [hereinafter "Remand Order"].
41
Id. at 13327.
42
ld. at 13328.
13
difference between entertainment programs and news and public affairs programs. 43
If the Commission is unwilling to adopt an absolute safe harbor for news and public
affairs programming, it should at least clarify that broadcasters will not be subjected to
indecency liability for material contained in bona fide news or public affairs progranuning even
By clarifying the additional deference accorded to news and public affairs programming,
the Commission would provide broadcasters with a better understanding ofwhat type of speech
44
will, in fact, be deemed indecent. Such clarification would reinforce the paramount importance
editorial discretion. 45 The Commission has stated, "[ i]t was certainly not our intent, even in our
Pacifica ruling to inhibit coverage of diverse and controversial subjects by licensees, whether in
46
news and public affairs or in dramatic or other programming contexts." By providing an
explicit exemption from indecency liability for material contained in bona fide news or public
Commission would go a long way towards ensuring such coverage is not inhibited.
Just as broadcasters must be given notice of what will and will not be actionable as an
43
See also Fox TV, Inc. v. FCC, 613 F.3d 317,334 (2d Cir. 2010) ("The FCC points to its
"bona fide news" exception .. .(b]ut the FCC has made clear that it considers the decision to
apply this exception a matter within its discretion. Otherwise, why not simply make an outright
news exception?").
44
See id. at 330.
45
See In reApplication ofWGBH Educ. Found., 69 F.C.C.2d 1250, 1254 (1978).
46
14
obscene or indecent broadcast,47 the Commission should take this opportunity to provide clearer
guidance regarding the forfeiture amount that may be assessed in a particular case. Despite
the public over fift een years ago, the Commission still relies too much on a case-by-case
approach that turns on the specific facts and circumstances of the situation. Compounded by
extremely large potential forfeiture amounts and the possibility of multiple violations within a
single program, this lack of predictability has created a pronounced "chilling" effect for
broadcast speech. To remove this threat, the Commission should explicitly clarify the criteria
that must be met before a licensee will be assessed a forfeiture at or approaching the statutory
maximum. This will allow the Commission to "apply its guidelines in a consistent and fairly
uniform manner," 48 while ensuring that ''those enforcing the law do not act in an arbitrary or
While the Commission has been authorized to regulate obscene and indecent broadcasts
since 1948, it only began to do so in the 1970s.5 For the next fifteen years, the Commission
assessed forfeitures on a case-by-case basis, looking at the facts and circumstances of each case,
along with relevant precedent, to determine whether to assess a forfeiture and, if so, how large a
47
FCC v. Fox TV Stations, Inc., 132 S. Ct. 2307 (2012) [hereinafter "Fox II"].
48
The Conunission's Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines, 12 FCC Red. 17087 (1997) [hereinafter "1997
Report and Order"].
49
Fox II, 132 S. Ct. at 2317.
50
ld. at 2312.
51
See In the Matter of Standards for Assessing Forfeitures, 6 FCC Red. 4695, 4695 (1991)
[hereinafter "1991 Policy Statement"].
15
substantially raising the maximum forfeiture amounts that the Cmrunission was authorized to
impose under 503(b). 52 In response, the Commission released a Policy Statement creating
specific standards for assessing forfeitures going forward. 53 The Conunission did so to move
away from its case-by-case approach in favor of a guidelines-based approach to provide greater
clarity and predictability for broadcasters. 54 The Commission's 1991 Policy Statement moved
toward such a guideline-based approach by establishing base forfeiture amounts for every
503(b) violation, while also creating a schedule of percentage adjustments that could raise or
lower these baseline amounts when various adjustment factors were present. 55
Despite this positive step, however, the Commission has relied too much on a case-by-
case approach with respect to indecency and profanity forfeitures in the interest of preserving
agency discretion. Thus, in an ensuing notice and comment rulemaking proceeding concerning
forfeitures generally, 56 the Commission eliminated the percentage ranges for upward and
downward adjustments to a base amount "to reflect more clearly the Commission's discretion to
52
Pub. L. No. 239, lOlst Cong., 1st Sess., 103 Stat. 2131 (1989).
53
1991 Policy Statement, 6 FCC Red. at 4695.
54
Id. Such an approach would ensure that comparable violations received comparable
penalties, while at the same time providing "guidance to the public regarding the forfeitures that
can be expected in connection with specific violations." ld.
55
Id. The upward adjustment criteria that the Commission provided were: egregious
conduct; ability to pay/relative disincentive; intentional violation; substantial harm; prior
violations of same or other requirements; substantial economic gain; and repeated or continuous
violation. The downward adjustment criteria were: minor violation; good faith or voluntary
disclosure; history of overall compliance; and inability to pay.
56
Shortly after being released, the 1991 Policy Statement was vacated by the United States
Court of Appeals for the District of Columbia due to the Commission not following mandatory
notice and comment periods. See United States Telephone Association v. FCC, 28 F.3d 1232
(D.C. Cir. 1994). The Commission responded by issuing a notice of proposed rulemaking,
receiving comments, and then releasing the 1997 Report and Order.
16
increase or reduce a forfeiture penalty as much as warranted based on the unique facts of each
57
case." With regard to indecency and profanity forfeitures specifically, when Congress raised
the maximum indecency and profanity forfeiture amounts 1000 percent in 2005 in the wake of
the infamous Super Bowl ''wardrobe malfunction," 58 the Commission implemented the increased
maximum forfeiture amount summarily and without addressing the circumstances that might
The Commission's forfeiture guidelines have become murkier still because of two other
steps the Cotmnission has taken to maximize its discretion. First, the Commission has
announced that broadcasters might be liable for every obscene or indecent utterance in a
program, instead of the traditional per-program approach that the Commission had previously
used. 60 Second, the Commission has assessed forfeitures against each owned or affiliated station
57
1997 Report and Order, 12 FCC Red. at 17100 (emphasis added).
58
The Broadcast Decency Enforcement Act of2005, Pub. L. No. 109-235, 120 Stat. 491
(2006) (increasing the maximum forfeiture for the broadcast of obscene, indecent, or profane
matter from $32,500 to $325,000, up to a maximum of$3,00,000 for any single act or failure to
act).
59
In the Matter of Amendment of Section 1.80(b)(l) of the Commission's Rules; Increase
of Forfeiture Maxima for Obscene. Indecent. and Profane Broadcasts to Implement The
Broadcast Decency Enforcement Act of2005. Order, 22 FCC Red. 10418 (2007). The
Commission did not conduct a notice and comment rulemaking because it was not legally
required. Id. at 10419.
60
See In the Matter oflnfinity Broadcasting Operations. Inc.; Licensee of Station WKRK-
FM. Detroit. Michigan, 18 FCC Red. 6915 (2003) (''while the Commission has traditionally
viewed all of the utterances in one program to be a single utterance and thus a single violation, ..
. in the future, we may treat situations like this as multiple, repeated violations with the
accompanying increase in forfeitures").
17
of a network based on the broadcast of a single network program. 61 With these developments,
the Commission has substantially expanded its discretion since the 1997 Report and Order
The chilling effect of such broad discretion is profound and inevitable. Just as vagueness
in the Commission's indecency and profanity enforcement criteria chills protected speech,
vagueness in the C01mnission's forfeiture policy forces broadcasters to "choose between not
airing ... controversial programs [or] risking massive fines or possibly even loss of their
licenses." 62 Only by clarifying the applicability of potential forfeiture amounts will this chilling
effect recede. As such, the Commission should take this opportunity while reviewing its overall
broadcast indecency policy to establish explicit guidelines for assessing various forfeiture
amounts.
The Commission can still reserve its discretion by taking into account the various upward
and downward escalating factors, but it should significantly limit the current scope of its
discretion. As the Supreme Court cautioned in Fox II, "precision and guidance are necessary so
that those enforcing the law do not act in an arbitrary or discriminatory way."63 Reserving the
discretion to increase a forfeiture from $7,000 to $325,000 without providing guidance on when
or why such a decision will be made creates opportunities for just the sort of arbitrary decision-
making the Court was cautioning against. Accordingly, the Commission should reserve the
$325,000 statutory maximum amount for only the most egregious, intentional, and repeated
61
See In the Matter of Complaints Against Various Licensees Regarding Their Broadcast of
The Fox Television Network Program "Married by America" on April 7, 2003. Notice of
Apparent Liability and Forfeiture, 19 FCC Red. 20191 (2004) (imposing a $7,000 fine against
169 owned or affiliated stations, to produce a total forfeiture of$1,183,000).
62 Fox II, 132 S. Ct. at 2316 (citing Fox TV, Inc. v. FCC, 613 F.3d 317,327 (2d Cir. 2010)).
63
Id. at 2309.
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instances of obscene or indecent speech used to pander, shock, or titillate. Any broadcast that
does not meet all ofthese criteria should not be assessed such a significant forfeiture penalty, and
In addition, the Commission should limit the amount of a forfeiture in most cases to the
same levels as the other 503(b) forfeitures, which are capped at a statutory maximum of
$25,000.64 The Corrunission would still have the authority to adjust a forfeiture for the
transmission of obscene or indecent material between a warning and $25,000, while reserving
the statutory maximum of$325,000 for egregious cases, such as the broadcast of obscene
matter.65 Finally, the Commission should explicitly adopt the traditional per-program approach
for determining how many violations a licensee has committed instead of creating a per-
utterance approach, absent truly unusual circumstances. Assessing multiple forfeiture penalties
against a broadcaster for violations that occurred within a single program should be reserved for
especially egregious circumstances, such that the broadcaster knew or should have known of the
By limiting the scope of its discretion in this way, the Conunission will retain its ability
to determine an appropriate forfeiture amount in light of the particular facts and circumstances of
a given case, while simultaneously ensuring that the Commission's forfeiture authority serves as
indecent or profane material will be penalized severely under these guidelines, while
broadcasters who are making a good faith effort to work within the Commission's rules will be
64
47 U.S.C. 503(b)(2)(A).
65
Unlike indecent or profane matter, obscenity receives no First Amendment protection and
may not be broadcast at any time. See 2001 Indecency Policy Guidance, 16 FCC Red. at 8000
(citing Miller v. California, 4 13 U.S. 15 (1973)).
19
protected from the heaviest fines. By clarifying its policies in this way, the Commission can
reduce the chilling effect of its current approach as Fox II only recently warned about.
Conclusion
For the foregoing reasons, and as more fully stated above, NPR supports the proposal to
focus the Commission's indecency and profanity enforcement efforts on egregious cases and
Respectfully submitted,
Terri Minatra
General Counsel and Vice President
Of Legal and Business Affairs
Michael Riksen
Vice President, Policy and Representation
Rishi Hingoraney
Director of Public Policy and Legislation
Gregory A. Lewis
Deputy General Counsel
Brian Rideout
Counsel
Stuart Harding
Visiting Fellow
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