In the dark: a consumer perspective on FCC broadcast indecency denials.

I. INTRODUCTION II. INDECENCY DETERMINATION PROCEDURES

A. How the FCC Determines Indecency

B. The Broadcast Decency Enforcement Act

C. The Complaint Process II. ANALYSIS OF THE COMPLAINTS

A. Method

B. Analysis

1. Medium Targeted

2. Geographical Distribution

3. Categories: Sexual Content

4. Categories: Profanity

5. Categories: Sex-Related Products

6. Categories: Lyrics

7. Categories: Homosexuality

8. Ads and Promotions

9. Time Lapse Between Initiation of Complaint and

FCC Response

C. FCC Grounds for Denial/Dismissal

D. Discussion of the Data III. RECENT FCC ACTIONS

A. The Omnibus Order

B. The Second Circuit Case

1. The Majority Opinion

2. The Dissent

3. The FCC's Response

C. Protecting Children from Indecent Programming Act

D. Discussion IV. OTHER RECOMMENDATIONS V. CONCLUSIONS AND SUGGESTIONS

A. The FCC Must Create and Publicize Clear, Defensible

Indecency Guidelines

B. The FCC Must Respond More Quickly to Complaints

C. The FCC Must Manage Complaints and Complainants

and Provide Clarity in Responses

D. Conclusion

I. INTRODUCTION

A father in the Jacksonville, Florida, area is dismayed to find that there is profanity on the cartoons King of the Hill, Futurama, and The Simpsons that his children watch on WAWS-TV, his local Fox affiliate, at 7:00 p.m. (1) He emails a complaint to the Federal Communications Commission ("FCC"), demanding that the FCC "do [its] job and put a schering [sic] halt to the cussing in [any] cartoon form what so ever [sic]." (2)

The father then waits 204 days (from September 23, 2003, when he filed the complaint, to the April 14, 2004 FCC response) to learn that the FCC has denied his complaint. In a form letter nearly two pages long that is filled with legal and U.S. Code citations, he learns that he has not provided the FCC with sufficient context to make a determination of indecency. The FCC says it will reconsider his complaint if he refiles it with additional information:

You may provide such information in the form of a significant

excerpt of the broadcast or a full or partial tape or transcript of

each broadcast. In whatever form the information is provided, it is

important that it is sufficiently detailed to allow us to ascertain

the actual words and language used during the broadcasts. (3)

Seven months after the fact, the father is unlikely to have kept any recordings he may have of the offending content, if he made recordings at all.

A mother in Houston is concerned to discover that her teenage daughter's favorite TV show, America's Next Top Model, contains questions from the host to the models concerning their sexual activity, including questions about their virginity and the strangest places they had sex. (4) She is upset by this series of questions and writes not only to the UPN network to protest, but to the FCC to file an indecency complaint, lamenting "all the unnecessary nudity and foul language on television nowadays." (5) She waits 159 days (from February 20, 2004, to July 28, 2004) to receive a very similar form letter, again filled with legal citations, in which the Commission concludes that the content of the broadcast was "not sufficiently graphic and explicit to be deemed indecent" (6) and is encouraged to use the V-Chip to block content she does not want her daughter to see. (7) However, any questions she may have about what would be considered "sufficiently graphic and explicit" enough to be deemed indecent remain unanswered.

In the time since Janet Jackson's breast was bared during the 2004 Super Bowl halftime show and the phrase "wardrobe malfunction" was introduced into the nation's lexicon, indecency has taken a front seat in both public concern and lawmakers' dockets. In spite of the outcry and the assessing of some fines, however, the FCC has vacillated on its indecency definitions, and both law and policy are currently unsettled.

While various policy actions (e.g., the FCC's March 2006 announcement of fines, (8) the Second Circuit's 2007 opinion overturning the FCC's indecency definition, (9) and the Broadcast Decency Enforcement Act (10) and other proposed acts) continue to keep broadcast indecency in the public eye, these high-profile rulings are only the tip of the iceberg. FCC Chairman Kevin Martin has said that while the FCC used to receive hundreds of indecency complaints each year, it now receives hundreds of thousands (the vast majority is form letters or emails prompted by activist groups). (11) Most are denied, and it is primarily the denials of individual complaints (not those from activist groups) that are the subject of this research.

Many authors have written on recent indecency developments. (12) Some have called for clearer indecency guidelines, (13) while others have concluded that the FCC should get out of indecency enforcement altogether. (14) Chairman Martin has made his own recommendations for revival of family viewing hours and the creation of family-friendly tiers of channels on cable. (15) This Article takes a different approach to FCC indecency enforcement: it seeks to gain an understanding of the FCC indecency complaint process from consumers' perspectives through an analysis of 261 indecency complaints denied by the FCC in 2004. (16) Through our analysis of these complaints, we conclude that the way in which the FCC processes complaints and provides feedback concerning indecent material does not serve the public interest, convenience, and necessity. (17)

On its extensive Web site, (18) the FCC provides basic statistics that give a general overview of the complaints received each calendar year. (19) According to these numbers, the Commission received over 1.4 million complaints in 2004 regarding 314 programs (145 radio, 140 television, and 29 cable). (20) However, the FCC's statistics provide no details about the targeted programs or complainants' concerns. This Article provides those details as reflected in a sample of 261 analyzed complaints. The number of complaints that we examined is much smaller than the 1.4 million cited for 2004 because many complaints were generated as a result of Janet Jackson's Super Bowl "wardrobe malfunction," which accounted for over a half million of the indecency complaints received. The complaints analyzed in this Article were mostly from individuals, not activist group members, and did not concern the Janet Jackson incident.

We assume arguendo that the FCC will not immediately step out of indecency enforcement, though the Second Circuit's recent dicta suggest that the current indecency regime may not survive constitutional scrutiny. (21) By examining the experience of over 200 consumers, many of whom complained of their own volition, we focus our attention on the ways in which the FCC might improve its indecency consideration process, from acceptance of complaints to more rapid communication with complainants. If the FCC remains active in indecency enforcement, we believe adjustments in both its methods and indecency definitions are essential.

Part II of this study focuses on indecency determination procedures. Part III is an examination and discussion of the 261 consumer complaints denied by the FCC in 2004. Part IV reviews the recent FCC Omnibus Order and the 2007 Second Circuit opinion to determine whether they address issues raised in the data. Part V examines other commentators' perspectives and positions this work within the field of research, followed by Part VI's suggestions for changes.

II. INDECENCY DETERMINATION PROCEDURES

A. How the FCC Determines Indecency

Federal indecency law prohibits the utterance of "any obscene, indecent, or profane language by means of radio communication" (22) and permits both a fine and possible jail time. (23)

In 1978, in FCC v. Pacifica Foundation, (24) the Supreme Court upheld the application of the indecency statute during afternoon hours. (25) The case concerned a radio monologue by comic George Carlin, which discusses seven "filthy" words. (26) The Court held that broadcasts need not be determined to be obscene to be regulated (27) and that the factors to be considered in regulating indecent broadcast speech include the time of day in which the speech was broadcast, the context in which the indecent speech occurs, and the likely audience for the speech. (28) In accordance with that holding, the FCC mandated that indecent speech may be broadcast during "safe harbor" hours, 10 p.m. to 6 a.m., when children are less likely to be in the audience. (29)

The FCC has since developed guidelines to determine what material qualifies as indecent. On its consumer Web site, 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." (30) The FCC also uses several other criteria, focused primarily on the context of the broadcast, to determine whether broadcast content qualifies as indecent:

The principal factors that have proved significant in our decisions

to date are: (1) the explicitness or graphic nature of the

description or depiction of sexual or excretory organs or

activities; (2) whether the material dwells on or repeats at length

descriptions of sexual or excretory organs or activities; (3)