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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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July 01, 2004

FCC to Fine Only Viacom for Broadcasting Indecency - Why?

Posted by Ernest Miller

Reuters is reporting that the FCC is going to fine Viacom $550,000 for Janet's nipple flash on the SuperBowl (Jackson Breast Flash May Get $550,000 Fine-Source). Jeff Jarvis notes that this would mean Janet completely topless would rate a million (The Daily Stern: The million-buck boobs). Ba-dump-bump. But, seriously folks, the decision isn't final and the Commissioners still have to vote on it. What intrigues me, however, is that the fine lawyers at the FCC apparently have argued that the 20 stations owned by Viacom should pay the maximum fine allowable, but the stations that aired the incident but were not owned by Viacom pay nothing. I have a feeling that at least one of the commissioners will complain about that, but let's think about possible reasons for that distinction:

  • People are less offended when indecency is broadcast by community smut peddler, instead of national smut peddler.
  • Statement by Commission that, "The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area," just a lie to trick unwary media conglomerates into slipping up.
  • FCC Chairman Michael Powell has changed his mind, there is not one First Amendment, but two. One for media conglomerates, another for local affiliates.
  • Local affiliates aren't responsible for what they broadcast. They're just there to collect the checks.
  • FCC clumsily making up for increased media concentration by fining only concentrated media.
  • "They can't fine us all." Local affiliates were right, FCC administratively unable to fine all 180 local affiliates, too much paperwork.
  • Ooops. FCC thought they had already allowed all media to concentrate in single company. Didn't realize there were still local affiliates.
  • It's arbitrary. "We're the FCC. ALL our indecency rulings are arbitrary. What are you going to do about it, huh?"
  • Permitting local affiliates to broadcast indecency without fines will make them more competitive. Supports FCC policy goal of increasing local media diversity.
  • No one was actually watching SuperBowl on the 180 local affiliates that broadcast it.
  • FCC upset that Viacom subsidiary Paramount Pictures has ruined Star Trek franchise.
These are just a few of the possible justifications. Feel free to make up your own. The FCC will.

Comments (6) + TrackBacks (0) | Category: Freedom of Expression | Oddities | Telecomm


1. Seth Finkelstein on July 1, 2004 10:53 PM writes...

"Go after the ringleader"

"Make an example of someone"

These are age-old.

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2. Ernest Miller on July 1, 2004 11:11 PM writes...

So, the local affiliates don't bear any responsibility? They just sit there and, using their government-granted broadcast license, just watch the checks roll in based on what CBS sends them via satellite? What is the point of media concentration regulation if the local broadcasters aren't responsible for what they broadcast anyway?

I'm simply trying to point out the absurdity of indecency law and the media concentration regulations.

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3. Seth Finkelstein on July 2, 2004 12:38 AM writes...

I've lost you.

Are you saying a regulation can't work, factually, unless each and every violator is prosecuted?

Are you saying that as a moral imperative, all violators must be prosecuted equally, otherwise the action is somehow tainted?

Strategically, "pick off a big one", can make sense even if there are dozens and dozens of small-fry around where each and every one may be equally guilty.

Isn't there a lot of fear now even on the local level, despite not getting fined themselves? Isn't that what the FCC wants?

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4. Ernest Miller on July 2, 2004 01:21 AM writes...

The thing is, the regulations are supposed to be for punishing those who "broadcast" indecent material. Not the people who did the indecent act, not the people who produced the show, but the people who broadcast it. Now, Congress is considering laws that will make the people who do the indecent things or produce the indecent shows liable in addition to the broadcasters, but currently the law only regulates those who "broadcast" indecent material.

Before all the recent brouhaha, the FCC would only punish stations where there had been complaints. Even though if something is indecent in one place it is indecent everywhere according to the FCC.

Here is the relevant regulation:
47 C.F.R. § 73.3999:
(b) No licensee of a radio or television broadcast station shall broadcast on any day between 6 a.m. and 10 p.m. any material which is indecent.

Now, it seems to me that joe local affiliate is as guilty of broadcasting indecent material as joe Viacom-owned affiliate. If they are being treated differently, it certainly begins to look as if the FCC is enforcing its rule in order to punish the producers, not the broadcasters. If that is what they are doing okay, but it seems to me that someone ought to fess up to it and point out the change this make with regard to policy.

Morally, it seems to me that all broadcasters are equally guilty under the FCC's enforcement directives. After all, every broadcaster has the option of delaying broadcasts, don't they? Or don't they have any responsibility? As far as "strategically" goes, each of the small-fry are guilty of the exact same thing. You could punish them all with a simple search-and-replace Macro in the Word document the FCC issues for these things.

Why should the local level have any fear? They can continue to collect the checks while the network makes the hard choices. This would seem to indicate that the local affiliates aren't really independent at all, which seems to go against the other claims the FCC makes when it comes to media consolidation.

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5. Seth Finkelstein on July 2, 2004 02:25 AM writes...

Now, "FCC using selective prosecution to go after producer", I can grasp.

Note in this instance, it's fair to assume that *every* station which broadcast it has had complaints. So unless the FCC is, as a matter of law, somehow compelled to fine each and every station, there's going to have to be some discretion.

Think of a highway where there's a bunch of speeding cars - everyone is guilty, but only a few actually get fined (and all sorts of politics involved in who).

Hmmm ... it seems like they could make a pretty good argument in their favor, for making some selectivity based on producer, as a kind of "intent" standard.

Isn't the other option, fine *everyone*, objectively worse?

Permalink to Comment

6. Ernest Miller on July 2, 2004 02:30 AM writes...

It is objectively worse, only if you think the FCC shouldn't be punishing the broadcast of indecency at all. However, if you think that what they are doing is legitimate, than it is objectively worse not to punish everyone equally.

The speeding example is not particularly analogous. It takes more resources to pull everyone over. Here, on the other hand, they have to write one justification (which is the majority of the effort) and then only enter the station call sign into the the paper.

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