Why Indecency, Once Hot at FCC, Cooled

WSJ.com - By AMY SCHATZ : "Whatever happened to the government crackdown on bare breasts and bad words?

The Federal Communications Commission levied a record $7.9 million in indecency-related fines last year, raising concerns among media companies that regulators were embracing a nanny-like approach to enforcing decency standards. Programming changes followed, among them the departure of shock-jock Howard Stern to the FCC-free world of satellite radio, taking millions of advertising dollars with him.

The FCC has received more than 189,000 indecency complaints against radio and television programs through the end of September, but it hasn't issued any fines. The inaction is puzzling to FCC watchers, who expected enforcement activity to ratchet up under Kevin Martin, the new FCC chairman and an outspoken supporter of increasing indecency fines and holding broadcasters more accountable.

"It's high time they started doing something," says L. Brent Bozell, president of the Parents Television Council, a watchdog group that encourages members to use its Web site to send complaints to the FCC. Mr. Bozell says he supports Mr. Martin and believes the FCC will act soon. The group was one of several organizers of complaints about Janet Jackson's breast-baring appearance at the Super Bowl in 2004. That event was largely responsible for touching off a record 1.4 million indecency complaints the FCC received that year.

This year, FCC officials planned to release a bundle of fines that would address a backlog of more than 50 outstanding complaints and provide broadcasters with clearer indecency guidelines. The guidelines were expected to get tougher: Mr. Martin, for example, has expressed support for assigning fines "per utterance" of a word deemed to be indecent, rather than once per show, no matter how many times it was uttered. And he supports the notion of holding performers as well as broadcasters accountable for violating decency standards and subjecting them both to fines.

But Mr. Martin, a Republican, has had difficulty achieving a majority among the four sitting commissioners on some indecency complaints before the FCC, prompting some aides to suggest he reduce the backlog by seeking fines or dismissals in a more piecemeal fashion, rather than resolving a large number at once. Mr. Martin has one ally on these issues in Michael Copps, a Democratic commissioner.

Two other commissioners, a Republican and a Democrat, generally favor more modest actions, and their unease at handing out big fines and expanding the FCC's definitions of unacceptable programming has slowed Mr. Martin's efforts. (The fifth seat, vacated by the former chairman, Republican Michael Powell, has remained empty since March. Last week, the White House nominated a Tennessee regulator, Republican Deborah Taylor Tate, to take the spot.)

Mr. Martin declined to be interviewed, addressing concerns about the slow pace of indecency enforcement in a statement. "We are working very hard to address the backlog of complaints before us, which is fairly substantial," he said. "In clearing out this backlog, we are trying to act in a consistent and comprehensive manner."

Among the incidents that have drawn complaints that are under final review are the actress Nicole Richie's unbleeped rumination on removing cow excrement from a Prada purse during the 2003 "Billboard Music Awards" on News Corp.'s Fox Television, commission insiders say, and an episode of "NYPD Blue" on Walt Disney Co.'s ABC network, which featured a nude woman's backside followed by a shot of her chest, artfully obscured by the appearance of a young boy.

Other complaints concerned graphic descriptions on "The Oprah Winfrey Show" of teenage sex acts, which drew thousands of complaints. The FCC is likely to dismiss those complaints, insiders say, because viewers were warned about the nature of the show's content, and Ms. Winfrey said it was aired to help educate parents. Many of the complaints about the Oprah Winfrey show were from supporters of Mr. Stern, the shock-jock, noting that the show's language was far more suggestive than some of his shows that have drawn FCC fines.

Some people question whether the FCC's count of complaints is accurate, or whether a change in methodology for tallying complaints has inflated the numbers. Since 2003, the FCC has counted complaints generated as the result of mass mailings by interest groups such as the Parents Television Council as individual complaints; previously, it grouped them together as one. That helps explain the more than tenfold increase in complaints in 2003 to 166,683 compared with 13,922 in 2002. A record 1.4 million complaints were filed last year, many of them were about Ms. Jackson's breast-flashing Super Bowl appearance.

Since early 2004, the FCC has been noting in quarterly reports that its indecency figures "may also include duplicate complaints or contacts that subsequently are determined insufficient to constitute actionable complaints." It isn't clear how many complaints are counted more than once.

Adam Thierer, a senior fellow at the Progress & Freedom Foundation, a think tank funded by telecommunications, technology and media companies, recently published a study of the FCC's complaint process that took note of the double-counting and suggested the numbers have been deliberately inflated for political purposes. They are routinely used in media reports and cited as a reason why more regulation and higher fines are needed.

"The numbers are driving the process," Mr. Thierer says. "If they're becoming the news, they better be accurate."

FCC officials acknowledge that indecency complaints are more likely to be double-counted than other types of complaints to the FCC, because they are routed to several different offices within the agency. In his statement, Mr. Martin said the FCC "does its best to cross reference complaints and eliminate any duplication."

Although the number of complaints so far this year is far below last year, the number of shows drawing complaints has soared. By June this year, more than 500 television and radio shows had drawn complaints, far exceeding the 314 shows that drew complaints for all of 2004. It takes only one complaint to launch an FCC investigation.

The Parents Television Council says it has targeted fewer shows this year for complaints than it did last year. The group yesterday kicked off a campaign targeting an episode of the show "NCIS" on Viacom Inc.'s CBS that aired in October, about a gruesome murder on a Webcast, of a model shortly after she performed a striptease.

What isn't clear is whether radio and television shows are getting dirtier, or whether FCC efforts to make it easier for consumers to complain are working. Recently, the FCC placed an online form on its Web site to help consumers file complaints.

Broadcasters dread another round of fines, but some are eager for more guidance. Mr. Martin wants to provide that guidance, aides say, so that networks and local stations will know, for example, when it is acceptable to broadcast the f-word (as in the case of a movie like "Saving Private Ryan," which the FCC ruled earlier this year wasn't indecent because it was patriotic and portrayed an historic event) and when it isn't acceptable (as in the case of awards show speeches like that of U2 singer Bono at the Golden Globe Awards in 2003).

"Broadcasters would like a little more clarity," says Dennis Wharton, spokesman for the National Association of Broadcasters. "If we know what the rules are, we'll play by the rules.""