On April 1 the FCC published the aforementioned public notice that has elicited the ire of the Parents Television Council and American Family Association. At the heart of the public notice is a directive from FCC chairman Julius Genachowski that the commission’s Enforcement Bureau has actually been following since September: Focus only on “egregious” cases of indecency in broadcast media, and ignore “isolated” expletives and nudity.
Specifically, the notice stated, “We now seek comment on whether the full commission should make changes to its current broadcast indecency policies or maintain them as they are. For example, should the commission treat isolated expletives in a manner consistent with our (prior) decision. ‘If a complaint focuses solely on the use of expletives, we believe that deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.’”
According to the public notice, Genachowski’s mandate has played a prominent role in the FCC being able to reduce its backlog of pending indecency complaints by 70 percent over the last seven months — more than 1 million complaints in all, summarily dismissed for lacking “egregious” repetition or simply being “too stale.”
In essence, the public notice is the commission’s way of signaling its desire to make that temporary directive into permanent policy. (“Today’s Public Notice does not alter any of the commission’s current substantive indecency policies. The aforementioned directive to the bureau to focus its indecency enforcement resources on egregious cases remains in force.”)
“That’s the really ironic thing — they break their own arms patting themselves on the back for not doing anything,” Isett said. “What’s particularly offensive frankly is that a lot of these were thrown out on the basis of ‘staleness.’ These are things that were filed three, four, five years ago and were never adjudicated one way or the other. So now, what the FCC is saying is using the fact that they haven’t done anything on this issue to continue not doing anything.”
Genachowski announced March 22 he would resign as FCC chairman “in the near future.” As a result, the person whose enforcement directive is being hotly debated will in all likelihood not be around to make the final decision as to whether that directive becomes permanent policy.
When contacted for comment Friday, FCC spokesman Mark Wigfield directed concerned citizens to refer to the commission’s public notice. He declined to speculate when the matter of indecency enforcement will be administratively adjudicated, but did confirm that FCC employees will read every comment filed with the commission during the ongoing 30-day comment period.
“The FCC will read and analyze the comments, and any future policy will be decided upon by a vote of the full commission,” Wigfield said.
Interested parties can file a comment about indecency enforcement through the FCC’s Electronic Comment Filing System until April 30. Websites such as the Deseret News and American Family Association provide detailed instructions for filing these comments. Via Google, a search for “FCC ECFS” will guide you to the ECFS homepage — at which point you’ll want to click on “Submit a Filing (Express),” and then select proceeding number 13-86.
“The free speech plank of the First Amendment was not designed by the founders to protect profanity, vulgarity, obscenity or anything of the sort,” Fischer said. “So there is no constitutional right for networks to dump garbage in people’s living rooms.
“And the reality is that we have an FCC because the airwaves belong to the people of the United States, and therefore the wishes and the desires of the people, they have a right to have their values respected in the way that their airwaves are used. That’s why we need to weigh in.”
Jamshid Ghazi Askar is a graduate of BYU's J. Reuben Clark Law School and member of the Utah State Bar. Contact him at firstname.lastname@example.org or 801-236-6051.
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