As broadcasters and the FCC battle in federal courts over indecency, station owners are forced to navigate in the dark without a flashlight. We found an interesting explanation of just how vexing the problem is while reading through the annual 10-K report filed with the SEC by one of the largest publicly traded television groups.
Here is what Sinclair Broadcast Group said in the portion of its 10-K devoted to license grant and renewal issues:
“Action on many license renewal applications, including those we have filed, has been delayed because of the pendency of complaints that programming aired by the various networks contained indecent material and complaints regarding alleged violations of sponsorship identification rules. We cannot predict when the FCC will address these complaints and act on the renewal applications. We continue to have operating authority until final action is taken on our renewal applications.
The FCC has made it difficult for us to predict the impact on our license renewals from allegations related to the airing of indecent material that may arise in the ordinary course of our business. For example, on Veterans’ Day in November 2004, we preempted (did not air) ‘Saving Private Ryan,’ a program that was aired during ABC’s network programming time. We were concerned that since the program contained the use of the ‘F-word’ (indecent material as defined by the FCC) airing the programming could result in a fine or other negative consequences for one or more of our ABC stations. In February 2005, the FCC dismissed all complaints filed against ABC stations regarding this program. The FCC’s decision justified what some may consider indecent material as appropriate in the context of the program. Although this ruling has expanded the programming opportunities of our stations, it still leaves us at risk because what might be determined as legitimate context by us may not be deemed so by the FCC and the FCC will not rule beforehand as this may be considered a restriction of free speech. For example, in September 2006, we preempted a CBS network documentary on the events that happened on September 11, 2001 because the program contained what some have argued is indecent material and the FCC would not provide, in advance of the airing of the documentary, any guidance on whether that material was appropriate in the context of the program. In 2007, the U.S. Court of Appeals for the Second Circuit held that the FCC’s indecency policy regarding ‘fleeting expletives’ was arbitrary and capricious when the FCC determined that ‘fleeting expletives’ aired during the Golden Globes and Billboard Music Awards violated its indecency rules. The FCC challenged the decision and the case was argued before the Supreme Court in November 2008. Also in 2008 the U.S. Court of Appeals for the Third Circuit rejected an FCC decision concluding, among other things, that a fleeting display of nudity during the Super Bowl halftime show was indecent. On April 28, 2009, the Supreme Court overturned the Golden Globes and Billboard Music Awards decision of the Second Circuit and held that the FCC had adequately justified its departure from prior decisions in determining that it could sanction a station for a single ‘F-word’ or ‘S-word’ broadcast on that station. However, the Supreme Court also remanded the case back to the Second Circuit for further consideration to resolve any First Amendment Constitutional issues raised by the FCC’s enforcement policy. On May 16, 2009, the Supreme Court remanded the Super Bowl halftime show case to the Third Circuit in order to consider the impact of the Supreme Court’s Golden Globes and Billboard Music Awards decision and to consider the same First Amendment issues that were remanded to the Second Circuit. On July 13, 2010, the Second Circuit struck down the FCC’s indecency policy in its entirety. On January 10, 2012, the Supreme Court heard oral arguments to consider whether the Second Circuit was correct in deciding that the FCC’s indecency ban is unconstitutional because it violates the First Amendment by being so vague as to deprive broadcasters of clear notice as to what is and is not permissible. The pending Supreme Court decision and the FCC’s unclear policy make it difficult for us to determine what may be indecent programming.”
RBR-TVBR observation: We’re pretty sure we’ve read every FCC indecency action since 1990 and we don’t have a clue what the Commission’s indecency standard is. But then, it’s not possible to know, since it has been in constant flux over those 21 years – now into the 22nd. We can only hope that the current court proceedings result in some clarity.