FCC Hits TV Station With Maximum Fine for Fleeting Nudity in Newscast

The Federal Communications Commission has fined a television station $325,000 for allegedly broadcasting “extremely graphic and explicit sexual material”, i.e., indecent material.  The amount of the fine, underlying facts and the Commission’s reasoning for issuing the fine raise serious concerns:

On July 12, 2012, WDBJ(DT) in Roanoke, Virginia broadcast a 6:00 pm news story about whether the local rescue squad would let a volunteer, who was an ex-porn star, continue volunteering after an initial six month trial period.  The Roanoke Fire Chief sought legal advice from the County Attorney on the matter.  The story ran 3 minutes and 20 seconds.  The introduction to the story included video of the former adult film star from an adult video distributor’s web site.  The majority of the three-second video was of the former adult film star sucking her finger.  Along the border on the right side of the same video were several smaller images, one including a hand stroking an erect penis.  

This is the first instance where the FCC has issued the maximum fine to a broadcaster since Janet Jackson and the Super Bowl more than a decade ago.  The fine raises several concerns. First, the Commission discounts (indeed ignores) the newsworthiness of the story and the fact that it ran during the station’s 6:00 p.m. news.  Second, the Commission argues that the graphic nature of the allegedly indecent material outweighs the fleeting nature of the video.

In the decision, the FCC takes the position that imposing fines for fleeting expletives/videos remains constitutional.   The Commission cites as support a concurring opinion from a Supreme Court case in 2012 that focused on fleeting expletives.  That case however overturned a Commission decision imposing administrative sanctions for the broadcast of fleeting expletives.  The Supreme Court concluded that the Commission failed to issue the appropriate Public Notice in 2004 informing the public of the Commission’s policy change to start imposing fines for fleeting expletives.  It was because of the FCC’s lack of public notice that an appellate court dismissed the FCC’s fine of $550,000 in the Janet Jackson case. The Supreme Court declined to hear the FCC’s appeal of that decision.

The fleeting expletive case has reached the Supreme Court twice in the past several years, most recently in 2012.  The Supreme Court decisions in both instances ruled narrowly, basing their decision on the administrative issues facing the court and not whether fleeting expletives were constitutional.  A careful reading of the two Supreme Court cases and the oral arguments suggests that a majority of the court is more likely than not to rule that fining broadcasters for fleeting expletives is unconstitutional.

The Commission decision yesterday was 5-0.  Regrettably, “cleaning up the airwaves” has a good ring to the public, whether the Commissioner is Republican or Democrat.

As a result of yesterday’s action, the Commission’s fleeting expletive policy remains in full force and effect.  Further, the Commission appears unwilling to conduct the proper rule making proceeding to evaluate the fleeting expletive policy in light of the Commission.  Instead, the Commission’s position appears to be “business as usual” on fleeting expletives.

WDBJ(DT) intends to appeal the Commission’s decision.  It will take several years, but perhaps this case (or another like it) will eventually make its way to the Supreme Court and perhaps this time the Supreme Court will rule on the constitutionality of fleeting expletives.

In the interim, broadcasters must remain vigilant.  Until there is a change in the law (or in the Commission’s policy), all it takes is one oversight and three seconds of “indecent material” for the Commission to impose a maximum forfeiture.