The FCC vs. Indecency

A Washington Post analysis of 92 known proposed indecency fines shows that the FCC's record of policing the airwaves has been undermined by plodding investigations, insufficient fine amounts and inconsistent follow-up.

Staff writer Frank Ahrens was online to answer questions about the analysis.

Delays, Low Fines Weaken FCC Attack on Indecency (November 10, 2005)

Interactive Graphic: The FCC vs. Indecency

Chart: FCC Indecency Fines, 1970-2004

Transcript follows.

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Frank Ahrens: Greetings, all, and thanks for stopping by.

More than a year ago, when the indecency story was really at the top of the news, I wondered how the then-current FCC compared with former FCCs in terms of proposing indecency fines.

I asked the FCC for a list of all the indecency fines it had proposed and was told such a list did not exist. "Keeping records is not one of our strengths," an FCC official told me at the time.

So I set about compiling the list, if only for my own use.

As it started coming together, certain trends began to emerge along with some eye-popping regulatory questions (how often have you seen *those* two terms together?).

I went to one of our excellent database editors, Sarah Cohen, and asked her to help me make sense of this pile of data I began accumulating.

She set up a spreadsheet--the results of which you can see at:

Indecency Fines, 1970-2004

that helped me organize the fines by date, FCC chairman, political party and so on. (Careful: some language is not for children or the faint of heart.)

I spent several months peppering the FCC for information and getting them to find their records and dig through them. Generally, they were pretty cooperative.

Where their record had holes, I had to look elsewhere--Westlaw online research, interviews with broadcasters, news archives, etc. That's why we've said "all 92 KNOWN proposed fines." This is a database and, like all databases, it can and will be updated as new information emerges.

After we put it all together, we said: What does all this data tell us?

The clearest answer is: it takes the FCC a looong time from airdate to fine to decide if something is indecent.

Also, that the agency's interest in indecency varies widely from chairman to chairman, based on their personal interest and political pressure they receive.

Our terrific news artist, Laura Stanton, made this data readable and interesting to look at in her great graphic, which you can see here:

Graphic: FCC vs. Indecency

The story I wrote sought to tell the narrative of a couple of these fines and explain how the agency has worked, buffeted by pressure from lawmakers, the court and consumers. It's not an easy road the FCC has to tread on indecency and most in the agency would rather not come anywhere near it. However, there is a law in place and the FCC is the appointed custodian of that law, so it's appropriate to judge their performance on it.

Anyway, that's my ramble. Let's get to your questions now.

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Fairfax County, VA: Am I the only one who is really sick of having to turn off the car radio when those erectile dysfunction ads come on? I hear them on WTOP and if it weren't for Bob Marburgh and his traffic team, I'd be reprogramming my car radio buttons to leave WTOP off. My young children really don't need to know about this stuff yet.

Frank Ahrens: You raise an excellent point. I heard from many parents following the 2003 Super Bowl, in which Janet Jackson's breast was briefly exposed on CBS, and they said: "I was a lot more uncomfortable having to explain to my 8-year-old what a four-hour erection is."

That's the sort of content that can be very embarrassing and even tasteless (when did KY jelly become a mainstream-advertised product, anyway?) but by strict interpretation of the indecency rules, is not indecent.

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Fairfax County, VA: In our household we solve the problem of inappropriate material on television by NOT WATCHING TELEVISION. Today's articles about indecency and the alarming (though flawed) study by the Kaiser Family Foundation, make me glad of our decision.

There are wonderful things on television, I am sure, but my children enjoy the activities that take the place of TV in their lives, especially reading.

We are not religious fundamentalists or prudes, but just as we feed our children tasty food that is also nutritious, we expect their entertainment to be wholesome as well.

Frank Ahrens: I hear you and every parent has the right and obligation to police their children's activities.

That said, may I (gently) suggest that by banning TV, you are shutting down a massive, constantly flowing information pipeline to your children.

Agreed, there is plenty on TV that you don't want your kids to see. But there is plent on TV that would enrich their lives.

TV itself is not evil. It is an agnostic information platform, like books and movies. What it requires, like every other platform, is careful editing.

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Boston, MA: Your article hints at the possibility of the FCC regulating cable and satellite providers. Is that even possible considering that consumers have to pay for those services?

Frank Ahrens: All the First Amendement experts I talk to say that it would be highly problematic to attempt to regulate content that consumers have to pay for.

The FCC can police the broadcast airwaves because, in theory, you can get them for free. The are the "uninivited visitors" in your house. You invite cable and satellite channels in by writing a check each month.

The pressure to slap indecency regulations on cable and satellite channels is a lever by some groups, I believe, to force cable and satellite companies, such as Comcast and DirecTV, to offer "family-tier" programming packages that parents could buy, giving them channels like Disney but excluding those like MTV, or, more radically, a la carte cable and satellite, where you buy only the channels you want.

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Philadelphia, PA: Being a newspaper writer, why is your 1st amendment protection more important than people in other forms of media?

There are very graphic descriptions of sex and violence in the Washington Post every day.

Isn't free speech supposed to be the type that you DO NOT agree with? I am sure plenty of people would like to censor your paper.

Frank Ahrens: It's a great point. A little history is in order.

The broadcast indecency rules come from a time when there were four TV channels--ABC, CBS, NBC and PBC--and radio stations limited in number by available over-the-air spectrum.

The court said, "Because there are limited choices out there for consumers, it is appropriate that the government police content." The analog for newspapers does not work because, in theory, anyone with enough money can start a newspaper anywhere they want--it is not limited by spectrum.

However, those indecency rules were crafted way before the era of 200 cable channels and XM and Sirius satellite and so forth. There are PLENTY of places for consumers to go now besides broadcast alternatives limited by physics. Advocates of striking down the indecency regulations--including many broadcasters, who say they have to compete unfairly with cable channels, who don't have to toe to indecency rules--say they are out of date in today's world.

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Wheaton, MD: Why would the FCC attack Howard Stern but not Oprah, for having the exact same content?

Frank Ahrens: It's about context AND content.

If Oprah says, "today, parents, we're going to talk about what your kids are doing sexually so you will know what's going on," the FCC says that's different from Howard Stern saying, "today, we're going to talk about what kids are doing sexually so lots of people will listen to my show." For instance, if a local morning deejay drops the f-bomb on his show in a joke, that's likely going to get an indecency fine. If an NPR station plays an FBI wiretap of a mobster cursing, that probably will not get an FCC fine.

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Philadelphia, PA: Why do you only take softball questions that agree with your position?

Frank Ahrens: All right, meat. Let's see what you got. Let's see your heater.

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Jacksonville, FL: The second question that has to be answered is, "What is indecent?" A devout evangelical Christian might consider the single word "damn" to be highly offensive and worthy of a six-figure fine. Devout Muslims would probably consider the sight of an evangelical Christian woman entering a church in a sleeveless summer dress with a mid-calf hemline to be absolutely pornographic and grounds for revoking a broadcast license. A Buddhist might find newsreel footage of the corpses and mayhem left by a Baghdad carbomb to be incredibly repulsive and worthy of being banned. An agnostic might not see anything offensive or obscene in any of these situations.

Since all American's will be forced to live according to the final definition, the first question that must be answered is, "Who gets to answer the second question?"

Frank Ahrens: Agreed. And a good world-view.

As I said, these indecency rules were crafted in a different time.

And the rules we have say things like "patently offensive" and "designed to titillate." One man's meat, as they say...

This is the kind of discussion that our lawmakers and regulators ought to be having, as well.

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Rockville, MD: Is there any serious discussion either w/in the administration, or in academic circles, about abolishing the FCC (or at least getting them out of the business of nominally regulating decency?)

Frank Ahrens: Indecency is only one slice of what the FCC does. And, as our society becomes more and more technologically minded, the FCC's role becomes more important than ever. For instance, the agency is in charge of being, essentially, the traffic cop for all the gazillions of wireless signals flying over your head each minute. That role is crucial for safey and consumer service. They regulate the telephone industry, the broadcast industry, the wireless industry, etc. etc. The fines they issue are not just for indecency but for broadcasters who do not comply, for instance, with close-captioning regulations, or whose signals interfere with others.

If you took a poll of the officials at the FCC and allowed them answer honestly, I bet most would LOVE to get out of the content-regulation business.

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Valley Forge, PA: How can I let networks know that specific patterns of attire cause me to never watch certain programs. Two examples would be the low cut fitted tops on the the female lead in "CSI NY" (only the NY CSI program) and the way-over-the-top clevage of the female moderator of "The Biggest Loser". That kind of attire is not "business casual" and would not be permitted in a real-world business environment. My point is, how can I let them know they've lost this viewer forever?

Frank Ahrens: Well, one way is by posting this on this discussion.

Another is by writing a letter or e-mail to the network. Believe me, they read them.

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Northern Virginia: I am a single mid 30's male who agrees there is indecency on TV and whole heartily agree children shouldn't watch it. The problem I have is when parents have no idea what the kids are watching, but complain when they find out. Growing up my parents always made sure that the shows or movies I was watching where suited towards my age. Now it is even easier to find out what shows are good or bad for kids by looking at the ratings or using the V-chip or locking programs out on DirecTV. What more do they want the government to do without actually choosing what we should watch? I enjoy watching off color humor or violent shows that wouldn't be suitable for kids. Shouldn't people just take responsibility for what they are allowing there kids to watch? I sure hope that is the case when it comes to allowing them to surf the internet.

Frank Ahrens: A good point.

And cable and satellite companies, who want to make sure they are not regulated or forced by law to offer programming packages that are not the most profitable for them (i.e., 'family tier') have launched big campaigns to let viewers know that technology does exist to block channels from their children and block shows with certain ratings.

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Alexandria, VA:

How dysfunctional is the FCC that it takes years to review cases and assess fines? They make the Pentagon look fast and efficient.They ought to have a easy to use form available right on their website - and indecency complaints must be filed within 24 hours of its airing. This is to eliminate these ridiculous organized campaigns to file complaints. If you aren't offended enough to file right away, then you shouldn't complain.

Frank Ahrens: Thanks for posting. Former FCC chairman Reed Hundt would agree with you. Read what he said in a sidebar I wrote on the FCC process that's on our Web site:

http://www.washingtonpost.com/wp-dyn/content/article/2005/11/09/AR2005110901689.html

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washingtonpost.com: How the FCC Responds to Indecency Complaints

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Philadelphia, PA: "It didn't take long for the conversation to go from tasteless to downright vulgar."

Are you a hard-news reporter or columnist?

There is a genuine issue of whether Howard Stern is "vulgar" or not. His 18 million listeners don't think so. Just because others, including you, think so does not make it the truth.

Frank Ahrens: Ah, this must be the question.

I take your point, but let me explain a little, if it helps.

The kind of content that generates FCC fines is typically such that it will not be printed in almost any newspaper, including this one. We do not toe to regulations, but we do edit our paper for taste.

Accordingly, we have difficulty writing about indecency fines because we will not use the language or specifically describe what generated the fines, which often sends me and other writers through some convoluted and painful linguistic gyrations and, in the end, ends up telling the reader nothing. So there's that. No one's happy with that, but kids look at the front page of The Washington Post.

I couldn't characterize what Stern said but wanted to convey its essence. Let's just say he got porn star Jenna Jameson and her father to engage in a discussion that would be more at-home in a gynecologist's office and Jameson's father ended up saying, "Daddy's little girl." I think my characterization--and yes, it is just that--is fair.

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Louisville, KY: Thank you for compiling that list. However, I can't think of which is more inappropriate: Howard Stern asking a porn star's father to identify his daughter's vagina, or our government leaders getting free time to lie us into war.

Frank Ahrens: And there you have the heart of the debate. An appropriate follow-up to the previous question.

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Columbia, MD: This is why my generation doesn't take the FCC seriously:

The holy Oprah talks about tossed salads on her talk show. She's only doing it to inform, to educate. What a saint. Thank you, Oprah, for giving an explicit, graphic definition of a rainbow party during the day in front of my children so that I may educate them never to do that.

The evil Howard Stern is only doing it for ratings. Of course everyone knows this, so we don't allow our children to listen to his show. But let's fine him for doing what we already know he does.

Oprah is an educator. Howard Stern is a scumbag. You're all a bunch of hypocrites.

Frank Ahrens: Passionately stated. Thanks.

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Rockville, MD: If everyone here thinks tv/radio is so so so bad then don't bother watching any tv or listening to the radio overseas, as media over there is a bit more "revealing". Here is a simple solution to everyone's problem. If you don't like what you're hearing on the radio or seeing on tv than turn it off or change it. No one is FORCING you to watch/listen to it. And if your children, for some horrible reason, actually ask you a question than just be upfront and honest with them. Heavens to betsy, children ask questions. Either parents can calmly, rationally explain things to their kids or their kids can go out and learn from their peers. Which, as a parent, would you prefer? Geez, everyone needs to calm down a tad bit

Frank Ahrens: It is a good point, but allow me to point that that a number of parents are worried there are fewer and fewer safe harbors these days. The 2003 Super Bowl is a case in point.

It is the most-watched TV event of the year, broadcast on a Sunday evening and, by most accounts (assuming you can put aside the violent nature of the game) considered a family activity. Parents should reasonably assume they can say, "Hey, everyone. Let's watch the Super Bowl" and not have to worry about their kids seeing things they shouldn't. Then, during a commercial break, they are ambushed by four-hour erections. That's what they're talking abouit.

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Queens, NY: Howard Stern had a fake commerical on his show talking about a great invention called "The Knob" saying if you wanted to change the station on a radio or television, use "The Knob". It was a great illustration of how people can tune things out they don't like by changing the channel instead of having the government tell us what is good and what is bad.

Frank Ahrens: Hahahaha!

Stern is a broadcast genius. Back from my old days covering radio, I always said the three best radio broadcasters working are Paul Harvey, Rush Limbaugh and Stern. Each of them really knows how to use the medium; each are talented radio broadcasters.

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Fairfax: Frank,

More focus needs to be put on the organized complaint campaigns. By taking things out of context, they are clogging the system with frivolous complaints.

Frank Ahrens: Yes and no.

It is true that something like 90 percent of the complaints that came to the FCC last year came through the Parents Television Council, founded by the conservative Brent Bozell.

However, it's not like Bozell was sitting in an office, hitting the "send" button 1 million times. His Web site reached out to members and like-minded people, told them what the organization's point of view was on the topic and urged them to send e-mails to the FCC. That's *exactly* what MoveOn.org and other lefty online groups do. In the digital democracy, it is a legitimate outlet for one's grievance.

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Alexandria, VA: The FCC takes years of back and forth to get videos and tapes of the programming....

Seriously?

If I miss an episode of Lost, I know where to get it off the internet and so do thousands of others. Full broadcasts of popular radio shows are available in this way as well... of course the gov't doesn't want us getting programming this way....

Frank Ahrens: Hahaha!

Great point. Maybe the FCC should get a video iPod and just download the shows!

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alexandria, va: Have you noticed that at least one of the ads no longer mentions four hour erections but instead uses the term priapism ?

Frank Ahrens: Isn't "Priapism" a character on HBO's "Rome?"

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Harrisburg, PA: How many calls, letters or emails will get an investigation going? Family Guy on Sunday made the joke about the FCC that they seem to think 1 phone call equals 20 million people. Sometimes that seems to be closer to the truth than not. Thanks.

Frank Ahrens: According to statute, a fine can come about from a single complaint about a radio to TV show if it has merit. In theory, the agency does not respond to a flood of e-mails or complaints. In theory, each potentially indecent broadcast gets the same amount of attention, whether it generated 1 or 1 million complaints.

In practice, however, when the FCC gets Congress breathing down its neck because certain members have read in the papers that the agency has received 1 million complaints and they want to know what the hell the FCC is going to do about it, things change.

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Bethesda, Md.: Mr. Ahrens,

I have submitted this question several times to Mr. Kurtz, but perhaps it is beyond the scope of his work. How is it that there are seemingly no fines for networks or athletes, (or colleges or professional leagues) when an inadvertent curse word is aired on live TV over an on field or on court microphone? This seems to happen every weekend during televised sporting events, usually when a player is unhappy with an official or the result of a play. Many children watch sports on TV during the weekend, and I believe it is time for "fair is fair" when it comes to this. Why fine Bono, Stern, or Janet Jackson when the FCC needs to look no further than the Notre Dame game on Saturday for inappropriate language being aired to viewers, many of whom are kids? Interesting to note that the only time I can recall an action being taken was when Dale Earnhardt, Jr. said the "S" word during a post race interview, and received a sanction from NASCAR. Thanks for your insight on this rather confusing (to me) issue.

Frank Ahrens: It's a good question and one that networks struggle with as they attempt to bring the games even closer to viewers by miking players and so forth.

First, if the curse word happens on a game on ESPN or another cable channel, there is no foul, because cable is not under the FCC's purvue.

If it is on broadcast, however, then the FCC has to receive complaints and then decide if the curse word was fleeting or intended to titillate, etc.

The agency initially ruled that Bono's f-bomb on the awards show was NOT indecent because it was fleeting and no meant to offend. However, even though the agency's ruling was correct according to the statute, it came out sounding: The FCC says it's okay to use the f-word on TV. The FCC reversed itself and said, No, it's not. But all that episode did is point out the vague nature of the indecency rules.

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Ithaca, NY: Frank,

I think this may have been the most informative and well rounded chat I have ever participated in on washingtonpost.com. Kudos to you and your colleagues.

Frank Ahrens: At the risk of posting a softball question, thanks!

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Windsor Mill, Maryland: The efforts against Howard Stern seemed to pick up after he started complaining about President Bush. It is clear that the extreme right wing and their minions use the FCC licensure process to stifle speech they don't like. In this Clear Channel/Fox News world is free speech dead? One of Howard's complaints, which I consider valid, is that the FCC refused to provide specific guidelines and responded only to citizen complaints. But these complaints seem to be politically motivated. From the Kenneth Tomlinson incident on it seems that the system needs to be completely reworked so that free speech is protected, the entrepreneurial spirit is protected and licenses are granted in a nonpartisan environment. Indecency should be defined and criticizing the President is not indecent. Thanks for tolerating my diatribe. It just seems this is a fundamental issue to our democracy. What do you think?

Frank Ahrens: I'm happy to post your points, but let me add a little.

Let's look at the "Saving Private Ryan" episode of a year ago. Several ABC affiliates refused to air it on Veteran's Day, fearing the language would prompt an FCC fine. They essentially asked the FCC, "Would this bring a fine if we aired it?" But the FCC, I think correctly, says, "We can't tell you that ahead of time. Doing so would equate to prior restraint of free speech, which the government should not do."

So stations did not air it. And, after the fact, the FCC issued a statement saying it would NOT have brought an FCC fine, even if viewers had complained, because the context is a war movie. For the FCC, that's a close as they come to being comfortable issuing guidelines.

Finally, if the Bush administration was pressuring the FCC, I'm reasonably sure it came through like-minded interest groups and lawmakers, not directly to Michael Powell, the former FCC chairman, who, like his father, was never a Bush insider.

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Fairfax, VA: I don't see my heartthrobs, Don Geronimo & Mike O'Meara, on the indecency list? Is there any way of knowing how much they've been fined?

By the way, at what point do you think the American people are going to realize how silly all of this is?

Frank Ahrens: To the best of my knowledge, Don and Mike (my former arch-nemesi!) have never been fined.

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Los Angeles, CA: If FCC indecency fines are raised, they are raised in order to chasten large broadcasters. Independent broadcasters--non commericial college stations for instance who may air an "indecency" by mistake wouldn't be chastened, they would be destroyed. The current fine schedule is very harsh for such broadcasters, if not for major broadcasters like Howard Stern. Is there any consideration being given to a fine schedule that would be appropriate to the size and type of the broadcaster in the application of an indecency fine? Is it fair, or even sane, to apply the same fine appropriate to restrain a broadcaster making billions in profits to one that makes no profit at all?

Frank Ahrens: Yes, in fact if I remember correctly, the House version of the bill raising indecency fines would cap them for the reason of protecting smaller broadcasters.

There is a real argument to be made that the individual stations that end up getting fined are the least responsible for what they air. Consider an affiliate station--not owned by, say, CBS but an affiliate--usually does not know what's coming down the pipeline from the network. Sometimes, they are just as surprised as the viewer. They get to decline a certain number of network shows per year in their contract, but they can't deny what they don't know is coming. Also, what about holding the performer accountable?

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Riverside, California: Although indecent language might be considered unpleasant or inappropriate, what "harm" has it ever really done anyone? Have there ever been any studies which objectively demonstrate that indecent language hurt anybody really. Or is merely a subjective reaction we are considering here? Should "being nice" be legislated, be mandated via draconian penalty, in our airwaves because certain sectors simply prefer it that way. Do they believe that such legislation protects children? That begs another question: should all broadcasting be fit only for children? That doesn't seem right or even realistic. People are adults for far longer than they are children. And, after all, it has been widely and reliably reported that the President of the United States freely spews indecencies (and obscenities) at White House staff in his frequent moments of pique. Should the presidential mouth be fined, or excluded from prohibition because it merely shouts at the unfortunate, rather than electronically broadcast? Is the president's prediliction to foul language harming children who may hear it? Why not regulate all speech? Indecent language is unpleasant, or can be received as unpleasant by some, but who is actually "injured" by it?

Frank Ahrens: This is an excellent point and one that I have often thought of. The argument is always, "we have to protect the children."

If I were a parent, I might intuitively understand that sentiment, but I'm not, so I have to intellectualize it. I do think children are exposed to much more sex and violence today than in the past, and I understand that is troubling. And some lawmakers have real concerns about potential links between, say, letting your kid play "Grand Theft Auto" and teen violence and so forth.

Again, I think the key is parental editing.

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alexandria, VA: Frank, thanks for writing this story. I think there might well be some partisan differences in how different FCCs approach the problem, though. In 1992, the Bush I FCC proposed nearly a million dollars of fines against Infinity and the Stern program. In the Clinton FCC, only $6K worth of fines were proposed, and then dropped as your story notes. Isn't this evidence of Democrat FCC reluctance to proceed on indecency?

Frank Ahrens: Yes and no. (Sorry for the ambivalence.)

Some FCC chairmen, regardless of party, cared not a whit about indecency. Some cared quite a lot.

Take a look at Jim Quello's 9-month tenure. He was a Democrat but no other chairman issued a greater dollar amount of fines per capita, as it were.

On the other hand, Mark Fowler, a Republican, issued no fines.

I think it has more to do with the times. Things really started ramping up in the Clinton administration under Democrat Bill Kennard and the dollar amount really exploded under his successor, Republican Powell.

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Washington, DC: Everyone puts the burden on parents to edit content for their kids. Of course, parents should and will do that, but anyone who watches TV knows that's virtually impossible. Even if the show is OK (say, a football game), the commercials can be not OK-- for example, commercials that highlight the shows you wouldn't let them watch. And especially with older kids, you're not always in the room. Wouldn't you say the system is set up to make the job virtually impossible for parents?

Frank Ahrens: This is a good posting. Parents have to run a lot of traps that their parents did not, agreed.

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Herndon, VA:

Frankly, I am stunned at how people can be so "offended" by the sight of female breasts when roughly 50% of the population has a pair. Why is it that something half of us have is "indecent"? What is definitely NOT natural is showing people being killed. It's too bad that many of the folks who complain about the sight of breasts have no issue at all with depictions of torture, death, and dismemberment.

That our government has no qualms about proclaming that nudity is shameful but government sponsored torture is not is disgusting.

Frank Ahrens: I'm posting this largely because I love the phrase, "has a pair."

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Capitol Hill, DC: Not to be vulgar or indecent, but after your last comment, it is going to difficult to get the image of an ambush by four hour erections out of my head. Man, that would be scary . . .

Frank Ahrens: That was my hope exactly. Consider it a reader service.

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Minneapolis, Minnesota: I get a little queasy when I read about the squishy term "indecency." Personally, I am much more offended when I read and hear about the types of deaths our troops are suffering in Iraq or about the VP's efforts to legalize torture in the mainstream news than I am about some T&A that I can choose to turn off, if I want to.

Frank Ahrens: This is the sentiment of a number of readers posting to this chat, so I wanted to put this one up to represent a number of you. Thanks for your thoughts.

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Frank Ahrens: Thanks much for all the excellent questions and comments. That's going to wrap it up for today, but I'm sure this is a conversation that will continue: the Senate is close on a bill that would raise the indecency fines and President Bush has said he would sign such a bill. So stay tuned.

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