McDowell Bid for TV’s Own Indecency Standards Makes No Early Headway

A proposal by FCC Commissioner Robert McDowell for broadcasters to come up with their own standards on indecency has drawn some early interest from the TV industry but no pledges of the dialogue sought. FCC enforcement of its own indecency rules is restricted by a recent appeals court loss. The plan floated at the NAB radio show (CD Oct 1 p1) by McDowell, a Republican, hasn’t led to serious talks between the commission and industry, and neither side appears to have made an entreaty to the other to begin a conversation, commission and industry officials said. Some broadcasters are skeptical of McDowell’s plan -- which drew some support from one former FCC chairman even as another said it’s unworkable -- while others may be interested, executives and government officials said.

The commission doesn’t seem to be speaking with industry on indecency, agency officials said. One called it politically astute of the commissioner to seek broadcaster help during the pendency of the Fox case against the FCC for finding indecent a single swear word aired during a broadcast show. It’s unclear what the Enforcement Bureau can do to combat indecency before Fox is dispatched with, agency officials said. A final ruling may not happen until 2012, they said. The FCC appealed to the Supreme Court and to the full 2nd U.S. Court of Appeals in New York. The 2nd Circuit is thought unlikely to take up the case, but the high court may (CD Aug 27 p5).

First Amendment concerns were cited by industry and interest group officials as the reason that broadcasters are hesitant to come up with a set of practices. They said conversations on broadcast content occurring under the FCC’s watch, even without the specter of additional regulation or legislation, could have a chilling effect on speech because the government could be seen as more involved in programming. “Broadcasters in no way should bargain away their First Amendment rights under the raised eyebrow of the FCC, no matter how well intentioned it is,” said a veteran industry executive. “It’s a pure First Amendment standard.” All industry and agency officials we spoke with said they supported McDowell discussing the idea publicly -- just not his plan. Other FCC members wouldn’t discuss the issue.

"This is a terrific opportunity” to engage broadcasters, and McDowell said Wednesday he’s hopeful that will occur. “I don’t see any downside to the private sector putting forth a proposal for self-governance in the absence of a regulatory framework governing broadcast indecency.” If others’ contentions are correct that the “commission’s hands are tied by the 2nd Circuit’s ruling, it’s only pragmatic to call upon broadcasters to tell American consumers what their indecency guidelines are and help educate them in the process,” McDowell said. “It’s important to start this discussion now, because there’s always the chance that the Supreme Court could strike down the commission’s rules.” Viewers would be aided by knowing how broadcasters keep racy content off the air and the industry could help its image, among other benefits, he said.

The FCC “could formalize some discussions with the end goal to produce some sort of public, interim understanding as to what consumers can expect” content-wise, McDowell said. Consumers already “can be somewhat encouraged by the fact that for decades now the FCC has provided broadcasters with a safe harbor from 10 p.m. to 6 a.m. where they could air indecent content, and they haven’t for the most part,” he added: “This illustrates that broadcasters do have standards” and they haven’t changed since July. That’s when a three-judge panel in the Fox case, remanded to the 2nd Circuit by the Supreme Court, found against the commission.

Many individual stations have their own standards on what content they'd consider too raunchy to air, and the broadcast TV networks each have standards and practices divisions with such oversight, an NAB spokesman said. Many radio stations have a “zero-tolerance policy toward indecency” and will fire morning drive-time “shock jocks” that cross the line once, he said. For all licensees, a maximum $325,000 fine gets “the attention of broadcasters very quickly in terms of what they will and won’t put on the air,” the spokesman said. Representatives of the Big Four networks had no comment.

"The onus” is on broadcasters, not the FCC, to take McDowell up on his proposal and “be more clear and up front about their standards,” said Policy Director Dan Isett of the Parents Television Council, whose members file indecency complaints. “It’s something that there needs to be a robust dialogue about” and the commission and Chairman Julius Genachowski have a role to play there, too, he said. “There is still the bully pulpit of the FCC, and the chairman’s been nowhere on that -- it’s disappointing.” Genachowski is “AWOL” on speaking out against indecency, Isett said.

With the FCC “in a fairly untenable spot” because of the litigation, “it’s time to try something different,” said Reed Hundt, a Democratic chairman in the 1990s. “Hopefully, the new Congress will be interested in that, even if it means backing off on legislation and regulation. There are plenty of other areas where civic discussion is the right way to go and regulation really isn’t,” he continued. “There’s a tremendous volume of litigation that at the end of the day doesn’t produce a clear rule and doesn’t really alter the way that the media affect the culture.” On C-SPAN’s The Communicators this weekend, Hundt said he hoped the FCC would speak publicly with broadcasters on indecency, “not in backroom deals."

Congress may not be amenable to giving the FCC leeway to oversee an industry consensus on indecency because legislators feel they have too much at stake with constituents in being seen as aggressive in combating swear words and sex acts from being broadcast, agency and industry officials said. “It’s unlikely that any self-regulatory scheme will pass muster with Congress and I doubt that broadcasters will be willing to negotiate such an arrangement,” said Senior Vice President Andrew Schwartzman of the Media Access Project, which has sided with broadcast networks in court filings on indecency cases. “No member of Congress is going to want to be seen as agreeing in any shape or form to something that’s more permissive than what’s on the books. And from a broadcaster’s perspective, this is a matter of principle as well as policy."

Principle is where McDowell’s proposal would run afoul of broadcaster rights if a deal were struck, some said. “The First Amendment frowns on this `voluntary’ code, proposed under the watchful eye of Washington and its censor’s grease pencil,” said Mark Fowler, Republican FCC chairman in the 1980s. “A voluntary code of conduct will be in the eye of the beholder and so almost certainly impossible to construct. Moreover, applying such a code to a small piece of a vast, ever-expanding video universe is but a small finger in the dike.” That broadcasters wouldn’t be able to come up with a workable definition of what’s not decent is illustrated in the FCC not sanctioning TV stations for airing the curseword-filled Saving Private Ryan movie, while considering doing so for other programming that was critically favored, said Henry Geller, a former commission general counsel.