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Indecency Four Years After <I>Fox University of Florida Levin College of Law UF Law Scholarship Repository UF Law Faculty Publications Faculty Scholarship 2017 Indecency Four Years After Fox Television Stations: From Big Papi to a Porn Star, An Egregious Mess at the FCC Continues Clay Calvert University of Florida Levin College of Law, [email protected] Minch Minchin Keran Billaud Kevin Bruckenstein Tershone Phillips Follow this and additional works at: https://scholarship.law.ufl.edu/facultypub Part of the Communications Law Commons, and the First Amendment Commons Recommended Citation Clay Calvert, Minch Minchin, Keran Billaud, Kevin Bruckenstein & Tershone Phillips, Indecency Four Years After Fox Television Stations: From Big Papi to a Porn Star, An Egregious Mess at the FCC Continues, 51 U. Rich. L. Rev. 329 (2017) This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in UF Law Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. INDECENCY FOUR YEARS AFTER FOX TELEVISION STATIONS: FROM BIG PAPI TO A PORN STAR, AN EGREGIOUS MESS AT THE FCC CONTINUES Clay Calvert * Minch Minchin ** Kgran Billaud *** Kevin Bruckenstein * Tershone Phillips ***** INTRODUCTION In March 2015, the Federal Communications Commission ("FCC" or "Commission") proposed fining a Roanoke, Virginia, television station a whopping $325,000 for briefly "broadcasting extremely graphic and explicit sexual material, specifically, a vid- eo image of a hand stroking an erect penis."' The offending con- tent aired for three seconds on WDBJ Channel 7 during a 6:00 PM news segment about a former female porn star turned local volunteer rescue squad member.2 * Professor & Brechner Eminent Scholar in Mass Communication; Director of the Marion B. Brechner First Amendment Project at the University of Florida, Gainesville. Ph.D., 1996, Stanford University; J.D., 1991, McGeorge School of Law, University of the Pacific; B.A., 1987, Stanford University. ** Graduate Research Fellow, Marion B. Brechner First Amendment Project. M.A., 2014, University of Florida; B.S., 2011, University of Florida. *** Graduate Research Fellow, Marion B. Brechner First Amendment Project. M.A., 2014, University of Florida; B.A., 2012, Emory & Henry College. **** Graduate Research Fellow, Marion B. Brechner First Amendment Project. B.S., 2014, University of Florida. ***** Graduate Research Fellow, Marion B. Brechner First Amendment Project. B.S., 2014, University of Florida. 1. WDBJ Television, Inc., 30 FCC Rcd. 3024, 3024 (Mar. 23, 2015) (notice of appar- ent liability). 2. Id. at 3025. 329 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 51:329 At first blush, the FCC's proposed indecency fine3 seems like a legal slam dunk. As media attorney Harry Cole wryly writes, "[e]rect penises (and the manipulation thereof) are well outside the range of conventional prime-time acceptability."4 However, a closer inspection of the facts suggests-and this ar- ticle, in turn, argues-that it is much more complicated. Jeffrey Marks, the station's president and general manager, contends that "[i]nclusion of the image was purely unintentional"' because it "was small and outside the viewing area of the video editing screen."6 The offending visual was taken from "a video screen grab of an adult website showing the subject of the report (who was neither nude nor engaged in sexual activity)."7 The image, in fact, would not have been visible in "the analog small-screen world of a prior generation."' Nonetheless, in concluding the newscast was indecent under its current definition of that contested term,9 the FCC reasoned that: (1) "the depiction of the sexual manipulation of an erect penis was extremely graphic and explicit;"1 (2) the three-second duration of that image "was sufficient to attract and hold viewers' atten- tion;"'1 and (3) "the stroking of an erect penis on a broadcast pro- gram is shocking."" These reasons align with a trio of factors the 3. Indecent speech is one of three categories of content the FCC may target for fines. See 18 U.S.C. § 1464 (Supp. II 2015) (providing that "[w]hoever utters any obscene, inde- cent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.") (emphasis added). 4. Harry Cole, FCC Flexes Its Indecency Muscle-Despite Long Hiatus and Unclear Standard, CoMMLAwBLOG (Mar. 27, 2015), http://www.commlawblog.com/2015/03/arti cles/broadcast/fcc-flexes-its-indecency-muscle-despite-long-hiatus-and-unclear-standard-2/. 5. Ralph Berrier Jr., FCC Hits WDBJ With Proposed $325,000 Indecency Fine, ROANOKE TIMES (Mar. 23, 2015), http://www.roanoke.com/news/local/roanoke/fcc-hits- wdbj-with-proposed-indecency-fine/articlef9c2alb6-f9a-50a9-8f9b-d02c0f2079ac.html. 6. Id. 7. Scott R. Flick, Indecency Meets Big-Screen TVs: FCC Proposes Mammoth $325K Fine, CoMMLAwCENTER (Mar. 23, 2015), http://www.commlawcenter.com/2015/03/indecen cy-meets-big-screen-tvs-fcc-proposes-mammouth-325k-fine.html. 8. Id. 9. The FCC defines indecency as 'language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." See infra note 171 and accompanying text. 10. WDBJ Television, 30 FCC Rcd. at 3029. 11. Id. 12. Id. 20171 INDECENCY FOUR YEARS AFTER FCC typically weighs to determine if a depiction of sexual organs or activities is "patently offensive" and, in turn, indecent.13 Travis LeBlanc, 4 head of the FCC's Enforcement Bureau, trumpeted the fine in a press release. "Our action here sends a clear signal that there are severe consequences for TV stations that air sexually explicit images when children are likely to be watching," he proclaimed.15 The decision to fine the Roanoke station-and, in particular, to mete out "the largest fine ever for a single broadcast from a TV station"'-is startling for at least four reasons. First, former FCC Chairman Julius Genachowski in September 2012 directed the Commission to "focus its resources on the strongest cases that in- volve egregious indecency violations." 7 Three seconds of inadvert- ently airing, in the corner of the screen, a tiny image during the course of a news story arguably seems something far less than egregious. Compounding the problem, at least in terms of lack of' notice to broadcasters, is that the FCC "has never described how its new 'egregious' standard works in practice."'8 13. As the FCC observed when issuing its proposed monetary forfeiture against the owners of the Roanoke station: In assessing whether broadcast material is patently offensive, "the full con- text in which the material appeared is critically important." Three principle factors are significant to this contextual analysis: (1) the explicitness or graphic nature of the description or depiction; (2) whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs or activities; and (3) whether the material panders to, titillates, or shocks the audience. In examining these three factors, we must weigh and balance them to determine whether the broadcast material is patently offen- sive. Id. at 3027 (footnotes omitted). 14. Before joining the FCC, LeBlanc served as (1) Special Assistant Attorney General of California and a senior advisor to Attorney General Kamala Harris; (2) an attorney in the U.S. Department of Justice's Office of Legal Counsel during the Obama Administra- tion; and (3) an attorney at Williams & Connolly LLP in Washington D.C. and Keker & Van Nest LLP in San Francisco. Travis LeBlanc, Chief, Enforcement Bureau, FCC (July 18, 2014), https://www.fcc.gov/general/travis-leblanc-chief-enforcement-bureau. 15. Press Release, Fed. Commc'ns Comm'n, FCC Plans Maximum Fine Against WDBJ for Broadcasting Indecent Programming Material During Evening Newscast (Mar. 23, 2015), https://apps.fcc.gov/edocs-public/attachmatch/DOC-332631Al.pdf. 16. James Eli Shiffer, Full Disclosure,STAR TRIB., Oct. 18, 2015, at 2B. 17. Doug Halonen, FCC to Back Away From a Majority of Its Indecency Complaints, THEWRAP (Sept. 24, 2012, 10:20 AM) (emphasis added), https://www.thewrap.com/fcc-back -away-maj ority-its-indececncy-complaints-57766/. 18. Cole, supranote 4. UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 51:329 Second, in April 2013, the FCC sought public comment on whether the egregious enforcement policy should become a per- manent practice for the Commission.9 In July of that same year, the FCC extended the comment period to August 2, 2013.2o But as of late October 2016, the FCC still had failed to decide what to do on this question, thus leaving broadcasters without legal guid- ance and fair notice regarding what is indecent. Third, the FCC had been dormant-but for three exceptions, each of which was resolved for an amount far smaller than $325,000-in enforcing its indecency policy since June 2012.21 That is when the U.S. Supreme Court in FCC v. Fox Television Stations, Inc.22 passed on a prime chance to consider the First Amendment2 3 issues raised by the FCC's indecency enforcement 19. John Eggerton, FCC Seeks Comment on 'Egregious Complaint' Indecency En- forcement Regime, BROAD. & CABLE (Apr. 1, 2013, 4:25 PM), http://www.broadcastingcable. com/news/washington/fcc-seeks-comment-egregious-complaint-indecency-enforcement-reg ine/61255; see also FCC Reduces Backlog of Broadcast Indecency Complaints by 70% (More Than One Million Complaints); Seeks Comment on Adopting Egregious Cases Poli- cy, 28 FCC Rcd. 4082 (Apr. 1, 2013) (public notice) [hereinafter FCC Reduces Backlog]. The notice for public comment was published in the Federal Register on April 19, 2013, thereby establishing May 20, 2013 as the deadline for filing comments, and June 18, 2013 as the deadline for filing reply comments; see FCC Seeks Comments on Adopting Egre- gious Cases Policy, 78 Fed.
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