Cursing and Nudity: The deadly sins of network television

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On April 1, 2013, the Federal Communications Commission (FCC) requested public comment concerning its plan to loosen restrictions on cursing and nudity over broadcast television,[1] and received more than 100,000 responses during the period for comment.  After an initial deadline for comment, the FCC agreed to extend the deadline through August 2, 2013, to ensure that all interested parties had the opportunity to respond.  Even with this extension, the FCC continued to receive submissions.

The comments are varied in length and in content.  One individual simply wrote “I am opposed to frontal nudity on primetime TV.”  Another respondent stated that “[p]arents should be responsible for what their kids see, not TV networks.”  Many other comments, especially those from organizations, have been written by attorneys and research analysts, and explain in great detail the reasons for support or opposition to the FCC’s changing restrictions.

“Phasing out indecency regulations in primetime hours on the broadcast networks strikes an appropriate balance between concerns about children’s access to content and free expression.”

One organization, the Writers Guild of America, West (WGAW) wrote that “indecency regulations should be phased out of application, particularly to programming broadcast during primetime hours.”  In summary, WGAW reasoned that “[t]here is undeniable social value in content some might consider indecent, and such content has a place on broadcast television…. Phasing out indecency regulations in primetime hours on the broadcast networks strikes an appropriate balance between concerns about children’s access to content and free expression.”

Upon reviewing the FCC’s data, and in support of its argument, WGAW noted that complaints have not risen on an annual basis.  Rather, complaints have fluctuated over a ten-year period, peaking in 2004 after Janet Jackson’s wardrobe malfunction during Super Bowl XXXVIII’s halftime show.

PTC argues “[t]here is no doubt that broadcasting – largely because of its uniquely accessible nature, granted by its use of the public airwaves – remains a leading influence in American culture,” and it “urges the Commission to recognize fully this reality.”

Other activist organizations, in particular Parents Television Counsel (PTC), strongly oppose the FCC’s proposed plan.  In PTC’s comment, written by Dan Isett, Director of Public Policy, he describes the organization as “representing more than 1.3 million Americans dedicated to protecting children from sex, violence, and profanity in entertainment.”  PTC argues that “[t]here is no doubt that broadcasting – largely because of its uniquely accessible nature, granted by its use of the public airwaves – remains a leading influence in American culture,” and it “urge[s] the Commission to recognize fully this reality.”

In its conclusion, PTC opines that “there is no ambiguity in what the record reflects that the public wants – clear, consistent, vigorous enforcement of federal broadcast decency law.”  Yet, the record may actually be skewed due to the large number of comments being filed by members or supporters of organizations like PTC.

Although PTC has always campaigned against sexual content on television, PTC supporters are filing complaints before even seeing the material on television.

WGAW responded specifically to PTC’s public comment, arguing that because of PTC, the FCC is being flooded with complaints.  Although PTC has always campaigned against sexual content on television, PTC supporters are filing complaints and comments before even seeing  the material on television.  On its website, PTC requests that supporters “[h]elp [PTC] put an end to broadcast indecency.”  The website contains information on filing FCC comments, and comments can even be submitted to the FCC directly from PTC’s website.

In addition, PTC published a generic comment for members to file with the FCC who did not wish to write their own public comment, stating the following:

I oppose any changes to the current FCC indecency standards.  The FCC must continue to vigorously oppose ALL indecent content, even if brief or “fleeting.”  The Supreme Court has affirmed the FCC’s authority to enforce policies prohibiting indecent broadcast content during hours when children are likely to be in the viewing or listening audience.  Relaxing the current policy would not serve the public interest and I urge the FCC to reject all proposals that would allow for the broadcast of expletives and nudity on FCC-licensed stations.

The process PTC advocates through this generic comment distorts the number of individuals who have actually seen disturbing content on television and promotes the PTC’s agenda.

PTC and its supporters have filed thousands of complaints about various episodes of the show “Family Guy.”

Meanwhile, the FCC is being bombarded with complaint after complaint filed by PTC activists.  For example, in 2003 and 2004, PTC was responsible for over ninety-nine percent of FCC complaints.  Complaints differ from public comment in that they can spur enforcement actions by the FCC, rather than aid in modifying or creating new rules.  However, each method of interacting with the FCC can produce a high volume of communications from the public.

Complaints by PTC have focused on television shows such as Fox’s animated sitcom “Family Guy.”  A March 2009 episode of “Family Guy” generated almost 200,000 complaints.  PTC and its supporters have filed thousands of other complaints about various episodes of the show.

In response to PTC’s inundation of complaints, ABC Television Associates Affiliation argued that “every indecency complaint must be made by a bona fide complainant—that is, a viewer or listener who (1) certifies that he or she actually watched or heard the allegedly offending material at the time and on the station identified in the complaint; (2) specifically and clearly identifies the material alleged to be indecent; and (3) attests that he or she has lodged the complaint upon a considered decision to do so, rather than at the prompting of a third party via a computer-generated form or mass solicitation.”  If filers were forced to meet these criteria, the FCC would most certainly receive far fewer complaints.

The Chairman directed the Enforcement Bureau to reduce the backlog of pending broadcast indecency complaints by focusing enforcement resources on egregious cases.

Perhaps due to the large number of complaints filed by PTC, the FCC was forced to focus enforcement resources on egregious cases.  In September 2012, Chairman Julius Genachowski instructed the FCC staff to begin reviewing the Commission’s broadcast indecency policies and enforcement to ensure consistency with First Amendment principles.  The Chairman also directed the Enforcement Bureau to reduce the backlog of pending broadcast indecency complaints by focusing enforcement resources on egregious cases.  Between September 2012 and April 2013, the Bureau reduced the backlog by seventy percent, constituting more than one million complaints.  But many remain to be reviewed and more submissions in the future are a certainty.

Importantly, the FCC must keep in mind the recent decision of the Supreme Court of the United States in FCC v. Fox Television Stations, Inc. (pdf), where the Court recognized that a content-based regulation of speech raises special First Amendment concerns because of the chilling effect on protected speech.  In addition, the Court recognized that the Due Process Clause of the Fifth Amendment requires that the Commission give networks fair notice of content that is actionably indecent.  As comments continue to pour in, the FCC must decide whether viewers are ready for looser restrictions on nudity and cursing on network television, while simultaneously abiding by legal precedent and the Commission’s own regulations.