Indecent Oversight
The FCC’s crackdown on profanity could lead to censorship.
By Deborah Potter

A reporter is on the air live at an antiwar demonstration when the crowd behind her begins to chant obscenities. True or false: The station broadcasting the story can be fined for its coverage.

The latest ruling by the Federal Communications Commission appears to suggest the answer is "true." The decision stems from an incident last year at the Golden Globe Awards, when U2 singer Bono said the F-word and NBC carried it live. The FCC investigated and said the indecency rule did not apply because Bono used the word as an adjective, "to emphasize an exclamation." This spring, however, after the furor over the Janet Jackson "wardrobe malfunction" at the Super Bowl, the commission overturned the Bono decision. The F-word, the FCC said, is indecent and profane regardless of context.

It's those last three words — "regardless of context" — that have broadcast journalists concerned. In the past, the FCC considered the context in which profanities were uttered in deciding if a broadcaster could be fined for indecency. Sexually explicit comments by Bubba the Love Sponge and Howard Stern could get a station in trouble — no doubt about it. Clear Channel Radio dropped both shock jocks this year after being hit with record fines. But a fleeting comment on a newscast or during live news coverage generally did not merit sanctions. Now, stations worry that will no longer be the case.

But no one is really sure, because the FCC hasn't specifically said how the decision might apply to news. "Right now, the problem for us is there are no rules," Rod Fritz, news director at Boston's WRKO-AM radio, said at a panel discussion at the April convention of the Radio-Television News Directors Association. "There's no line. We don't know where the line is."

In a petition to the FCC, CBS affiliate stations cautioned that the indecency rule could "fundamentally alter the manner in which local broadcasters engage in news gathering." The stations went so far as to warn that if the ruling stands, many of them would stop airing newscasts between 6 a.m. and 10 p.m. when the regulations apply.

That's probably hyperbole, but there's good reason for all the anxiety. Until now, being found in violation of FCC rules for indecency merited not much more than a slap on the wrist — a maximum fine of $27,500 per show, no matter how many profanities were aired. But the FCC has started fining stations for each profane utterance, and Congress could raise the fine to as much as $500,000 per incident. One provision under consideration would start proceedings to revoke a station's license if it's repeatedly found in violation. "You do the math," said Washington, D.C., attorney Kathleen Kirby, who represents broadcast clients. "Half a million [dollars] times however many utterances, that amounts to enterprise-threatening fines."

Some stations already are choosing to be extra cautious. In Phoenix, when a speaker used profanity during the funeral of former football player and Army Ranger Pat Tillman, several stations covering the event live pulled the plug. Los Angeles station KTLA-TV used digital technology to blur the expletives spray-painted on a vandalized car that was shown in a news story. "That's the kind of safeguard we have built into our news operation," said KTLA News Director Jeff Wald, also on the RTNDA panel. "It's going to be a chilling effect." To keep unexpected expletives from getting on the air during live coverage, LIN Television Group is equipping all 24 of its stations with signal delay devices specifically for use on local newscasts, at a total cost of $200,000.

But there's more at stake here than the financial health of broadcast companies. Unless the FCC clarifies whether stations can be penalized just for reporting the news, the indecency ruling is tantamount to censorship. News managers living in fear of a career-ending fine could base coverage decisions not on news value but on the risk that profanity might get on the air. As a result, journalists may be hamstrung in their ability to report the whole truth.

Imagine that an obscenity is uttered not by a rock star, but by an elected official referring to an opponent. Stations unwilling to air the exact words used because of the threat of sanctions will leave viewers and listeners less than fully informed.

But not all viewers. FCC regulations apply only to over-the-air broadcasters, not to cable news channels. For the federal government to tell some journalists they can't report the news fully while placing no such limitations on others clearly undermines the protections of the First Amendment.

Broadcast journalists should be free to exercise their own editorial judgment about what to put on the air and when, unfettered by the fear that one misstep could put them out of business. There's a difference between raunchy language used to titillate and shock, and obscene comments that make news or that get on the air by accident during live coverage. The FCC should be clear about that difference.

This article was originally published by
American Journalism Review, August/September 2004