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March 8th, 2004
Planning to Use Some Four-Letter Words?
The day after Janet Jackson exposed one of her breasts during the Super Bowl halftime show, Michael K. Powell, the Chairman of the Federal Communications Commission, announced that the FCC would begin an immediate investigation into the broadcast. About a week later, Chairman Powell told Congress that it "represented a new low in prime time television" and was "the latest example in a growing list of deplorable incidents over the nation’s airwaves."
This is not the usual political rhetoric. The FCC is the federal government’s primary regulator of television and radio broadcasters, and Chairman Powell has made it clear that one of the big issues on his agenda is to clean up the nation’s airwaves by going after broadcasters who air indecent material.
What is indecency?
FCC regulations do not only prohibit the broadcast of "obscene" material. (oversimplify, material is "obscene" if an average person, applying contemporary community standards, finds that it (taken as a whole) appeals to the prurient interest, if it depicts or describes sexual conduct in a patently offensive way, and if it (taken as a whole) lacks serious literary, artistic, political, or scientific value.) They also prohibit the broadcast of "indecent" material between 6 a.m. and 10 p.m. The FCC defines "indecency" as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities."
When determining whether material is "indecent," the FCC considers factors such as the explicitness or graphic nature of the material, whether the broadcast dwells on or repeats the material, and whether the material is used to pander or titillate or for its shock value. The FCC has found everything from the use of four letter words to off-color jokes to descriptions of sexual conduct to be indecent.
Not all bad words and sexual references are "indecent." Last fall, the FCC’s Enforcement Bureau determined that Bono’s alleged use of the f-word during the Golden Globes wasn’t indecent, because it was not used to describe sexual or excretory activities, but was only used as an adjective and was only fleeting and isolated.
Historically, the FCC has not aggressively pursued indecency violations. When the FCC has taken action, almost all of its enforcement has been focused on radio. Now, it looks like this is about to change.
A new focus on television?
In addition to seeking one of its largest indecency fines ever (more than $700,000) in connection with a series of radio broadcasts, the FCC recently went after a San Francisco television station for its interview with members of the cast of "Puppetry of the Penis." The FCC alleged that, during the interview, one of the performers briefly exposed himself while preparing to demonstrate "genital origami."
Chairman Powell told Congress that, in addition to reviewing the Golden Globes decision, the FCC "will pursue indecent programming on television more aggressively." Enforcement may not be limited to programming. Testifying about the Super Bowl broadcast, FCC Commissioner Jonathan S. Adelstein told Congress that "I could highlight any number of tasteless commercials that depicted sexual and bodily functions in a vile manner. Any sense of internal controls appeared out the window, so long as the advertiser paid the multi-million dollar rate."
What does this new focus on indecency on television mean for advertisers? After years of being able to push the envelope with sexual situations and innuendo, everyone is now going to be nervous about commercials that have anything to do with sex. Some clients will not approve edgy work, because they are afraid of the bad publicity that may result. When the work does get produced, advertisers may find that the types of commercials that used to slide by broadcast clearance departments in the past are now being rejected. Before long, if you’re looking for some sex in your commercials, you may just have to watch cable.
This article first appeared in the March 2004 issue of SHOOT magazine. It presents a general discussion of legal issues, but is not legal advice, and may not be applicable in all situations. Consult your attorney for legal advice.
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