Omnibus Indecency Order Being Eyed, Enforcement Chief Says

“Indecency enforcement is a priority of Chairman Martin,” she said: “He has been very clear about that. We have a large number of cases before us, both predating Chairman Martin’s administration and those that have been filed since.” Gripes filed since Martin became chmn. get top focus, given an agency vow to process complaints within 9 months of receipt, she said.

The FCC is considering addressing complaints individually or in a 2nd omnibus order, Monteith said: “Both possibilities are still on the table,” she said: “What we sought to do in the omnibus… was to do some sort of side- by-side of analysis so [broadcasters] could see how our decisions hopefully fit together. We certainly did try and we looked very carefully at the cases that were addressed in the omnibus order, attempted to deal with a variety of situations.”

More FCC fines could mean suits. Broadcasters have sued over $3.5 million-plus in fines levied earlier this year (CD April 19 p3). Lawyer Jerome Boros said: “I think the industry will challenge all of this.” An Enforcement Bureau official declined comment.

Broadcasters expect more indecency orders, but the FCC hasn’t hinted at a timeframe, industry sources said. The FCC is poised to reject a CBS petition for reconsideration on a $550,000 penalty in the Janet Jackson flashing incident (CD May 23 p9). Radio stations are awaiting a batch of orders likely to lead to fines for raunchy programming, said sources. But as of Wed. no such radio order was circulating on the 8th floor, sources said.

The FCC keeps drawing fire from broadcasters for what they say is the slow pace of winnowing up an order backlog that has license renewals on hold. One radio station has been waiting almost a year for the FCC to approve a consent decree over programming ruled racy, said Boros, declining to name the client. “You've got delay after delay, and there’s not very much reason,” he said: “We haven’t gotten bean squat out of the Commission.”

Martin heeds indecency complaints, but homeland security is his “first and foremost” priority, Monteith said. “We've had a number of indications as to where he stands, for example, creation of the new homeland security and public safety bureau,” she said: “We saw in the VoIP E-911 context [the FCC] pushing forward, moving forward on those kinds of issues. And his emphasis on homeland security and public safety issues also was born out in the Commission’s reaction to Katrina. We tried to be very aggressive there.”

Monteith had advice for lawyers at the seminar on working with the Enforcement Bureau. First, answer letters of inquiry as completely and honestly as possible, she said. The bureau tries to be “precise” in its inquiries and isn’t “fishing” for information, she said: “Sometimes we see responses to letters of inquiry where the question wasn’t answered at all. It just forces us to go back and to do more follow up to see why the question wasn’t appropriate or why it’s not applicable.”

To a degree, the Bureau is willing to negotiate terms of consent decrees and forfeitures and the extent to which a firm being sanctioned must admit wrongdoing, Monteith said. The bureau generally waits for firm to make the first move on a consent decree, equivalent to a legal settlement.

“Pretty much any case is open to discussion about a consent decree,” Monteith said, adding that egregious behavior or truculence can spur the agency to harden its stance. Firms that go toe-to-toe with the FCC may not find the agency in a conciliatory mood, she said: “ after a certain period of time if you come to us and say we'd like a settlement we may or may not be willing at that point.”

Sometimes the FCC won’t even discuss a decree, especially in episodes of indecency and or violations that imperil public safety, Monteith said. Otherwise, though, parties should be willing to talk terms, she said: “I see it as a negotiation and you are free to come back to us if we reject an initial offer. Generally we will tell you when it’s nonnegotiable.”

Companies should feel free to take cases directly to the Commission, but only after talking to the Enforcement Bureau, Monteith said: “There may be instances where a company feels so strongly that they want to go directly to the commission and the chairman. That’s certainly your prerogative. We always appreciate the courtesy of a call to let us know what’s going on. More often than not if you go directly to the commissioner’s or the chairman’s office we're going to get a call.”

Adelstein Rues Constraints on FCC Indecency Authority

Indecency regulation is “one of the most vexing areas at the FCC,” which must straddle a divide between its allegiance to the Constitution and a duty to enforce laws “protecting children,” FCC Comr. Adelstein said at the seminar. Adelstein questioned the FCC habit of levying fines for indecency only if a viewer has filed a complaint. “I can’t find anything in the law that says you can only enforce indecency where there is a viewer complaint,” he told the FCBA attorneys.

Asked if the FCC should differentiate between individual complaints and those generated via mass e-mailings, Adelstein said he sees no need for that. The point is whether a program is deemed indecent, not how the complaint is made, he said. The complaint process generally is “ludicrous,” with the FCC constrained by a need to focus mainly on over-air broadcasts, he said. For example, if an L.A. resident complains about a D.C. station’s programming, it might mean the viewer saw the program on cable, which isn’t subject to indecency rules, he said. But the FCC could assume people in D.C. saw the same program over the air, so action could be taken, he said.

Adelstein later told reporters he has voted on all the wireless E-911 handset waivers but Sprint-Nextel, which still isn’t circulating. Among his other seminar comments: (1) He would back an FCC investigation of National Security Agency mining of phone records. “If the FCC can’t investigate, who can?” he asked. FCC Chmn. Martin recently said the FCC can’t do such an investigation because of security concerns. (2) Broadcasters apparently don’t take seriously FCC concerns over using unattributed video news releases (VNRs). A recent study (CD April 26 p25) found numerous examples of unattributed VNR use, all after the FCC indicated it was looking into the practice. “Apparently, warnings aren’t enough,” he said.