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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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April 28, 2004

The Broadcast Flag vs. Indecency Enforcement

Posted by Ernest Miller

So, I've been doing a lot of thinking about the FCC's indecency enforcement lately, and it just struck me how the broadcast flag will inhibit enforcement of the prohibition on obscene, indecent, or profane depictions on broadcast.

According to the FCC's page for indecency complaints (Obscene, Profane & Indecent Broadcasts), complainants are asked to provide the following:

Information regarding the details of what was actually said (or depicted) during the allegedly indecent, profane or obscene broadcast. There is flexibility on how a complainant may provide this information. The complainant may submit a significant excerpt of the program describing what was actually said (or depicted) or a full or partial recording (e.g., tape) or transcript of the material.
In whatever form the complainant decides to provide the information, it must be sufficiently detailed so the FCC can determine the words and language actually used during the broadcast and the context of those words or language. Subject matter alone is not a determining factor of whether material is obscene, profane, or indecent. For example, stating only that the broadcast station “discussed sex” or had a “disgusting discussion of sex” during a program is not sufficient. Moreover, the FCC must know the context when analyzing whether specific, isolated words are indecent or profane. The FCC does not require complainants to provide recordings or transcripts in support of their complaints. Consequently, failure to provide a recording or transcript of a broadcast, in and of itself, will not lead to automatic dismissal or denial of a complaint. [emphasis in original]

Although a recording is not strictly required, obviously it would be very useful to have one when making a complaint. "Did I just hear/see what I thought I heard/saw? Let's go to the tape (or more likely, the hard drive)." However, if copying the broadcast is prohibited (as enforced by the FCC itself), it will be very difficult for average citizens to make recordings to make transcripts and to bolster their complaints about indecency.

I can imagine broadcasters inhibiting copying of "racy" shows in order to reduce the possibility of being fined for indecency violations. Heck, I can imagine broadcasters having "do not record buttons" in place of "bleeping." That way, when someone displays something on broadcast the FCC might think they shouldn't, the broadcaster can ensure that no copy is made by the average citizen.

Of course, who expects the FCC to be consistent and have coherent policies?

Comments (5) + TrackBacks (0) | Category: Broadcast Flag | Freedom of Expression


1. Seth Finkelstein on April 28, 2004 11:47 PM writes...

Funny, but really, not a problem. I don't think it's common practice to provide tapes or transcripts when making an FCC complaint.

They mean that when you make a complaint, you have to be specific, "He said Jehovah!", not "He took the Lord's name in vain".

But think of the Unintended Consequences here.

"Dear Mr. Miller: You are absolutely right. Our policy on the indecency regulations and the broadcast flag is *inconsistent*. We have sent the policies to the Office Of Left And Right Hand Coordination. Upon review of their recommendations, since the Broadcast Flag makes it difficult to meet our articulated indecency standards, we have decided that we must lower the standards of reporting. Henceforth, all that's required will be a generalized description, and it will be up to the holder of the material, the station, to present a defense. Thank you for bringing this to our attention".

I don't know if I should put a smiley here or not ...

Permalink to Comment

2. Ernest Miller on April 29, 2004 12:45 AM writes...

Well, I don't think this inconsistency is going to have any of the commissars lose sleep at night.

In any case, they've already decided that they don't need any evidence for indecency fines:

Permalink to Comment

3. Seth Finkelstein on April 29, 2004 01:34 AM writes...

Semi-humorously, its *worse*.

That is, what you have above is an inconsistency between the Broadcast Flag and the indecency regulations.

But there's an implicit assumption that the indecency regulations will remain constant, leaving a contradiction with the Broadcast Flag.

However, if we turn that around, and assume the *Broadcast Flag* will remain constant, and move the indecency regulations instead ... OUCH!

And I can just see that coming out of this administration:

"If the content creator avails itself of the right to protect its content, it must also take on the additional responsibilities of protecting the public's tender sensibilities. It may not use it as backdoor to prevent the policing of morality. So the burden of proof must then be on the company to provide evidence of non-violation ..."

(Maybe I shouldn't give them ideas, but I doubt they're reading this anyway!)

Permalink to Comment

4. Scott Matthews on April 29, 2004 08:41 PM writes...

If you have access to Lenny Bruce's "To is a Preposition" (I have it via Rhapsody) you should check out the track "Blah Blah Blah."

Essentially, Lenny Bruce is in court because he said "Blah Blah Blah" (presumably, used as a stand-in for the naughty words). The prosecutor says "Your Honor, he said 'Blah Blah Blah.'" The judge replies "What! He said 'Blah Blah Blah'!?!"

Great stuff.

Permalink to Comment

5. Rolo Timassie on April 30, 2004 06:24 AM writes...

There is no inconsistency. The Broadcast Flag regulation does not prevent copying. Irate viewers will be able to record programs to recordable media and mail them in to the Commission, just as they can do now.

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