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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 07, 2004

FCC to Require Broadcasters to Retain Copies of Broadcasts for 60-90 Days

Posted by Ernest Miller

Today, the Federal Censorship Communications Commission (FCC) announced (through a notice of proposed rulemaking) that it will likely be requiring all broadcasters to retain copies of their broadcasts for 60 - 90 days in order to better combat indecent broadcasts (In the Matter of: Retention by Broadcasters of Program Recordings [PDF]):

In this Notice of Proposed Rulemaking (“NPRM”), we propose to require that broadcasters retain recordings of their programming for some limited period of time (e.g., 60 or 90 days) in order to increase the effectiveness of the Commission’s process for enforcing restrictions on obscene, indecent, and profane broadcast programming. [italics in original]
Decency Nazgul and Commissioner Michael Copps was enthusiastic about the new requirements (Statement of Commissioner Michael J. Copps, Re: Retention by Broadcasters of Program Recordings, Notice of Proposed Rulemaking [PDF]):
The process by which the FCC has enforced the indecency laws has for too long placed inordinate responsibility upon the complaining citizen. When someone sends in a complaint, he or she is usually told to supply a recording of the program or a transcript of the offending statement, or the complaint will be dismissed. This policy ignores that it is the Commission’s responsibility to investigate complaints that the law has been violated, not the citizen’s responsibility to prove the violations. [emphasis in original]
This rulemaking is very troubling for a number of reasons. Many have claimed that the FCC's indecency crackdown is nothing more than election year posturing. This NPRM indicates that it is not. Once this rule is put in place, it is unlikely to go away. Read on...

Profane Language is Back

Another important aspect of this NPRM is that the FCC is making it clear that they are not backing away from their vague new doctrine of punishing "profane" broadcasts, which may include blasphemy, hate speech and depictions of violence. For more on the profanity issue, see, FCC Revives Notion of the Profane, Howard Stern Should Ask FCC: What is Profane?, and Where's the Profanity?. This time, the FCC hasn't ignored their profane doctrine:

As for profanity, the Commission recently stated that it “will not limit its definition of profane speech to only those words and phrases that contain an element of blasphemy or divine imprecation, but, depending on the context, will also consider under the definition of ‘profanity’ the “F-Word” and those words (or variants thereof) that are as highly offensive as the “F-Word,” to the extent such language is broadcast between 6 a.m. and 10 p.m.” See Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program, 19 FCC Rcd 4975 (“Golden Globe”). The Commission also held that its definition of profanity includes material that “denotes certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” Id. at 4981. [italics in original]
However, see paragraph 3 of the rulemaking in which the FCC notes the court cases upholding its power to regulate obscene and indecent language, but doesn't mention the court cases upholding the FCC's ability to regulate profane language (mostly because there aren't any).

The Ostensible Purpose

What does this NPRM want? "We seek comment on steps the Commission could take to improve our complaint process and better enforce our existing standards by requiring broadcasters to retain recordings of their broadcastfor a limited period of time." The claim is that without recordings, the FCC might not have enough evidence to determine whether a violation occurred. As an example, the NPRM notes that during the years 2000-2002 a whole 169 complaints were dismissed for lack of evidence out of 14,379 total complaints. My calculator says that means about 1.17% of complaints were dismissed for lack of evidence. 1.17%. Yeah, this is a major problem, riiight.

I also note that the FCC doesn't include the year 2003 or 2004 so far. For example, consider what evidence the FCC now considers enough to get a fine in the year 2004 (FCC's Latest Mancow Decision: Discrimination Due to Lack of Evidence):

In this regard, [Emmis] maintains that the March 20 Complaint, which included only the descriptive phrase “graphic detail,” and the May 15 Complaint, which included only the descriptive phrases “both euphemistic and direct conversation about oral sex” and “pornographic sound effects (women moaning),” could not support the staff’s determination regarding the explicitness or graphic nature of each broadcast....

We reject Emmis’s contention that the staff’s decisions unfairly or improperly “shifted the burden of proof” or otherwise violated the Administrative Procedure Act. Before the staff issued the NAL, it sent copies of the allegations contained in the complaints to Emmis and asked Emmis to state whether it had aired the material as alleged. Significantly, in its LOI Response, Emmis did not deny broadcasting the material, but merely stated that it had no tape or transcript of the broadcasts in question and that its inquiries of pertinent personnel did not allow it to determine whether it had aired the material as alleged. Thus, Emmis neither disputed the accuracy of the complainant’s allegations nor supplied any countervailing evidence, such as a denial from the air personalities, program’s producers or Station management that the material was broadcast as had been alleged. Following the staff’s issuance of the NAL, the Forfeiture Order and the MO&O, Emmis never contended, much less offered any evidence to establish, that the complainant’s allegations were inaccurate in any way, although it had every opportunity to do so. Consequently, the complainant’s allegations stand unchallenged, and the only issue for us to decide at this point is whether those allegations, standing alone, are sufficient to support indecency determinations. As discussed above, we find that they are. In response to Emmis’s generalized claim, we also find no First Amendment defect in relying on this level of proof. [footnotes omitted]

How much evidence does the FCC require? Virtually none. Complain about "both euphemistic and direct conversation about oral sex" and that is enough evidence. What sort of complaints is the FCC dismissing for lack of evidence? "I heard naughty words"?

Oh, and by the way, if you think that this rulemaking will mean that if complaints are late the lack of recordings will protect you, you're wrong:

We have held that in cases in which a licensee can neither confirm nor deny the allegations of indecent broadcasts in a complaint, we have held that the broadcasts occurred. Under such circumstances, broadcasters may find it in their interest to retain recordings for a longer period than the proposals above suggest. We also note that a broadcast station may currently retain recordings on a voluntary basis in the absence of a mandate from the Commission. [citation omitted]
In other words, tails we win, heads you lose. And it gets worse, now people will be able to initiate a complaint with almost no evidence at all:
Currently, we generally require a complainant to submit a tape, transcript, or significant excerpt before we will consider a complaint so that we have some sense of whether the material broadcast may have violated the law before we commence an inquiry. We ask whether we should change this policy if we were to require records to be retained. For example, a complaint containing a general description of the relevant broadcast programming may be adequate to trigger Commission action because we could obtain the actual recording from the station.
Basically, you will pretty much be able to say, "I was offended by [callsign] at [time]," and the FCC will jump into action.

This also isn't simply about indecency, either:

We also seek comment on whether the proposed record retention requirements should be crafted so that they can be useful to enforcement of other types of complaints based on program content. For example, the proposed record retention requirements may aid us in enforcing our children’s television commercial limits and sponsorship identification requirements. We seek comment on whether there have been problems in enforcing those requirements that justify imposition of a retention requirement, as well as whether the benefits of this additional enforcement tool justify requiring broadcasters to record their programming 24 hours a day, rather than only 6:00 a.m. to 10:00 p.m., the hours when indecent programming is prohibited. [footnotes omitted]
Yeah, it is definitely useful for all sorts of content-based regulation.

Finally, we have this nice paragraph:

We are mindful that we must be cautious in our enforcement of Section 1464 with respect to indecency and profanity because free speech rights are involved. We therefore seek comment on whether our proposals raise any First Amendment issues.
Oh, well, alrighty then. I'm so relieved. (The FCC is concerned about the possible copyright issues as well).

Comments are due July 30th. Reply Comments are due August 30th.

A Possible Alternative Purpose

Basically, this makes the work of anti-indecency groups, like the Parents Television Council, easier. The average viewer or listener can't easily make a recording for use in a complaint. To a certain extent, organizations like PTC record many broadcasts for use in FCC complaints (they are the major source of such complaints as they encourage their members to flood the FCC with them). However, the resources to record so many broadcasts is expensive and they often miss things they wish to complain about.

Now, organizations like the PTC can flood the FCC with even more complaints and not have to invest in recording equipment.

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


COMMENTS

1. Seth Finkelstein on July 8, 2004 12:44 AM writes...

Remember your piece a little while ago, discussing how the Broadcast Flag might make it harder for citizens to provide evidence for indecency complaints? Remember my comment, that the implication of this was not necessarily going to be an argument against the Broadcast Flag, but rather that evidence standards will be loosened?

Well, here you are! :-(.

Permalink to Comment

2. Ernest Miller on July 8, 2004 01:02 AM writes...

Indeed. :-(

Permalink to Comment

3. joe on July 8, 2004 01:18 AM writes...

Man, it would be great to have a printer-friendly version of this page...

Permalink to Comment

4. joe on July 8, 2004 07:26 AM writes...

This reminds me a lot of the webcasting CARP where educational, nonprofit, noncommercial and hobbiest webcasters were getting royally screwed.

This is more of the same... for example, how many small broadcasters (colleges, church services (Jesse Helms! W00t!), individuals, nonprofits, etc.) have the ability to record their broadcasting? What format will they dictate the recordings will have to be in?

Further, we should probably do a little back-of-the-envelope calculation and try to calculate exactly how much storage space the FCC is going to need... or do they mean for the broadcaster to do the storage? 60-90 days of recording at a low-fidelity bitrate (e.g., 64kbps) is 43-65 GB (230-346 GB at 128kbps). Not a lot, but definitely not trivial.

Permalink to Comment

5. aeschenkarnos on July 8, 2004 10:20 AM writes...

So ... flood the FCC with the list of all possible complaints generated as follows:

for Station = AAA to ZZZ
for Date = 1/1/2000 to Now
for Time = 0:00 to 23:59
for Reason = list of all the possible reasons for people to be offended
write "I was offended by Station's broadcast on Date at Time because of Reason"
next Reason, Time, Date, Station

This probably wouldn't work, especially not if submitted en masse. But what might work better, is a means to randomly generate complaints that could have been generated by the above program. Make it more sophisticated, maybe apply Markov chaining to the existing complaints to generate more "realistic" letters, and watch the FCC choke in its own bureacratic vomit.

If you can crossmatch with the actual programs that are on at that time, you can do even more fun stuff, like matching the spurious category of offensiveness more plausibly with the program.

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