Before

FEDERAL COMMUNICATIONS COMMISSION

Washington, DC 20554

In the Matter of )
)
Adopting Egregious Cases Policy ) GN Docket No. 13-86
)
)

To: The Commission

COMMENTS OF NATIONAL PUBLIC RADIO, INC.

Terri Minatra
General Counsel and Vice President
OfLegal and Business Affairs
Michael Riksen
Vice President, Policy and Representation
Rishi Hingoraney
Director of Public Policy and Legislation
Gregory A. Lewis
Deputy General Counsel
Brian Rideout
Counsel
Stuart Harding
Visiting Fellow

1111 North Capitol Street, N.E.

Washington, DC 20002
202/513-2040

June 19,2013
 Summarv

NPR welcomes the Commission's reexamination of its approach to enforcing the

prohibition on the broadcast of indecent and profane content. Lost amid the furor over a few

high-profile incidents has been the deleterious effect of the Commission's enforcement efforts on

responsible broadcasters. Because a more restrained approach to indecency and profanity

enforcement would better accommodate the protected speech of public radio broadcasters and

better allocate Commission resources, NPR endorses the proposed "egregious cases" approach.

Public radio broadcasters share a public service mission to offer news, information, and

cultural programming, a mission that necessarily requires balancing the presentation of important

content to and respect for the sensitivities of an increasingly diverse public. The Commission's

"zero tolerance" approach, combined with the prospect of extreme fmancial penalty, has chilled

speech and compounded the risk public broadcasters must take, given the inherent vagueness of

defining indecency and profanity in particular cases. The Commission's "zero tolerance"

approach also appears to have discouraged the routine dismissal of unfounded indecency and

profanity complaints, causing extensive delays in station license renewals and imposing related

costs on public radio stations. By focusing Commission enforcement efforts on egregious cases

of deliberate pandering, the Commission can strike a more appropriate balance that better serves

the public interest.

The Commission should also take this opportunity to clarify its indecency and profanity

enforcement policy in other important respects. In particular, the Commission should reiterate

and clarify the deference it accords news and public affairs programming, which lies at the heart

of the First Amendment speech and press protections. In addition, the Commission's forfeiture

authority is now both substantially greater and less well-defmed than it ever has been, and the

Commission should use this opportunity to clarify and limit the scope of its discretion.
 TABLE OF CONTENTS

Su1runary .. . . . . . . . ...... .................. . . . . . . . . . ..... . . ...... ... .... .

Introduction ................... . . . ... . . . . . . . ..................... . ... . .. .

I. Assuming The Constitutionality Of Prohibiting Indecent Or Profane But

Otherwise Protected Broadcast Matter, The Cmrunission Should Formally Adopt
A Policy Of Limiting Its Enforcement Activities To Egregious Cases ......... . 4

A Attempting To Sanction Every Indecent or Profane Utterance Significantly

Burdens Public Radio Stations And Other Program Producers ........ . 5

B. The Commission's "Zero Tolerance" Approach Appears To Have

Discouraged The Routine Dismissal OfUnfounded Complaints,
Disrupting The License Renewal Process And Creating Uncertainty
Among Station Licensees And Management. . . . . ...... . . . . . . ..... . 7

c. An "Egregious Cases" Approach Better Accommodates The

Constitutionally Protected Speech Activities OfBroadcasters And
Allocates CollllTiission Resources More Appropriately .. . . . . . . . . . ... . 9

II. The CollllTiission Should Adopt Other Policy Clarifications To Better Balance
The Objectives Underlying the Indecency Prohibition With The First
Amendment 's Protection of Speech ............ . . . . . .... . . . . . . . . . .. . . . . 11

A. The Commission Should Adopt A More Explicit And Expansive Safe

Harbor For News- and Public Affairs-Oriented Matter........ . . . . . . . . 11

B. The CollllTiission Should Clarify The Implementation Oflts Statutory

Forfeiture Authority To Reduce Uncertainty And The Corresponding
Chilling Effect . . . . .. . . . . . . . . . . ... .. . . . . . ........ . . . ......... . 14

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

ii
 Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554

In the Matter of )
)
Adopting Egregious Cases Policy ) GN Docket No. 13-86
)
)

To: The Commission

COMMENTS OF
NATIONAL PUBLIC RADIO, INC.

Introduction

National Public Radio, Inc. ("NPR") hereby comments on the adoption of an "egregious

cases" policy for enforcing the statutory proscription on the broadcast of indecent and profane

matter as proposed in the Public Notice in the above-captioned proceeding. 1

NPR is a non-profit membership corporation that produces and distributes

noncommercial educational programming through more than 900 public radio stations

nationwide. In addition to broadcasting award winning NPR programming, including All Things

Considered and Morning Edition, NPR affiliated stations are themselves significant program

producers and community institutions. NPR also operates the Public Radio Satellite

Interc01mection System and provides representation and other services to its Member stations.

NPR is an acclaimed producer and distributor of noncommercial news and

informational programming with correspondents and reporters based in 34 U.S. and foreign

Public Notice, GN Docket No. 13-86, DA 13-581 (Apr. I, 2013) [hereinafter "Public
Notice").
bureaus? NPR produces hundreds of hours of original programming each week, heard by a

weekly audience of 26 million listeners, and NPR has been honored with literally hundreds of

awards for its coverage of world events. 3 Other celebrated public radio producers also offer

signature news and information, public affairs, and cultural programs, including Marketplace,

from American Public Media; Fresh Air, from WHYY; This American Life, from

WBEZ/Chicago Public Media; and The Diane Rehm Show, from W AMU/ American University.

The common thread among public radio producers and stations is a public service

mission to offer news, information, and cultural programming that is responsive to the needs of

the public -- locally, regionally and nationally; that constitutes an expression of diversity and

excellence; that involves creative risks; and that serves as an alternative to the mass media. This

mission is represented in the mission statements of individual public radio producers and station

licensees. 4 It is also reflective of the Federal policy underlying the public broadcasting system

itsel 5

The hallmark of public radio news programming is a detailed, nuanced examination of

the issues of the day, featuring authentic voices and ambient sound. Rather than merely

conveying the substance of a news report through a host or reporter, public radio programming

2
See www.npr.org/about/aboutnpr.
3
www.npr.org/about/press/awards.html.
4
See,~' www.npr.org/about/aboutnpr/mission.html (''To accomplish [NPR's] mission,
we produce, acquire, and distribute programming that meets the highest standards of public
service in journalism and cultural expression"); americanpublicmedia.publicradio.org/about/
mission ("[American Public Media's] [m]ission is to enrich the mind and nourish the spirit,
thereby assisting our audiences to enhance their lives, expand perspectives and strengthen their
communities."); www.pri.org/about-pri.html ("Public Radio Intemational's mission is to serve
audiences as a distinctive content source for information, insights and cultural experiences
essential to living in our diverse, interconnected world.").
5
See 47 U.S.C. 396(a)(5), (6).

2
features interviews and recorded sound whenever possible so that the listener can hear the story

told through the participants' actual voices as much as possible. Public radio also uses ambient

sound to help tell a story:

The right sound - the whine of an air raid siren in wartime, the echoes in a
building abandoned because of a chemical spill, the roar of a trading pit in
Chicago - can substitute for dozens or hundreds of words, and can be as
descriptive and evocative as a photograph. 6

Such "reporting with your ears" makes public radio journalism unique among its news media
7
peers.

The primary audience of public radio programming is adults, and the largest audience

listens during the morning and late afternoon commuting times. Public radio producers and

stations nonetheless exercise careful editorial judgment, recognizing that its audience consists of

listeners of all ages and a wide range of backgrounds, interests, and tastes. Accordingly, no

potentially offensive language or matter is intentionally broadcast gratuitously, and the vast

majority of public radio progratmning contains no language or other content that would be

offensive to listeners.

On occasion, however, and only after careful consideration, public radio stations and

producers will make an editorial determination that the exclusion of authentic audio or other

potentially offensive language will so change the quality of the program content that

including the language or content is determined to be editorially essential. In addition,

public radio producers and stations will sometimes include, but obscure, particular audio

when necessary to properly convey a news story but in a manner that should not offend

6
Kern, J., Sound Reporting: The NPR Guide to Audio Journalism and Production 3 (The
University of Chicago Press 2008).
7

3
listeners. Of course, all broadcasters are susceptible to technical snafus, spontaneous

utterances during live programming, including call-in programs, and other unintended

occurrences, and public radio broadcasters attempt to avoid such occurrences as much as

humanly possible and as available resources permit. Ultimately, the decision how best to

present programming in the public interest warrants the Commission's respect and

deference unless the Commission has reason to conclude that a more base motive is at work.

I. Assuming The Constitutionality Of Prohibiting Indecent Or Profane But Otherwise

Protected Broadcast Matter, The Commission Should Formally Adopt A Policy Of
Limiting Its Enforcement Activities To Egregious Cases

NPR supports the proposed modification of the Commission's current approach to

enforcing the statutory prohibition against the broadcast of profane or indecent matter8 to focus

on egregious cases rather than isolated, or "fleeting," utterances. 9 The Commission's attempt to

investigate every isolated utterance of potentially objectionable language, combined with the

threat of extreme financial penalty, has only undermined the Commission's enforcement efforts,

chilled broadcast speech, and otherwise burdened responsible broadcasters. By adopting a more

restrained indecency enforcement approach, the Commission can better direct its enforcement

efforts and accord more appropriate respect for the First Amendment rights of public radio

broadcast stations and program producers.

8
47 U.S.C. 1464.
9
While NPR believes it is well past time to reconsider the legal and factual bases fo r
according over-the-air broadcast media the most limited First Amendment protection, see FCC
v. Pacifica Foundation, 438 U.S. 726, 748-50 (1978), we assume the constitutionality of
broadcast indecency regulation solely for purposes of conunenting on the specific issues raised
in the Public Notice.

4
 A. Attempting To Sanction Every Indecent or Profane Utterance Significantly
Burdens Public Radio Stations And Other Program Producers

Since the Conunission adopted its "fleeting utterances" policy, 10 attempting to sanction

every instance of broadcast indecency, no matter how fleeting, has proven to be counter-

productive. In announcing and justifying the policy shift, the Commission reasoned from the

underlying statute and prior Commission and judicial decisions to explain why even an isolated

utterance could fall within the statutory prohibition. 11 In undertaking a largely academic

exercise, however, the Commission failed to consider the practical consequences of attempting to

implement such an approach to indecency enforcement. 12

For responsible producers ofbroadcast programming, the consequences have been

significant. NPR, its Members, and other public radio broadcasters have been forced to reconcile

the sometimes competing demands to produce progranuning that serves the public interest while

avoiding broadcasting indecent or profane matter. Because the public interest may require the

use of language or other broadcast matter that is potentially objectionable to some, the task is far

more challenging than simply employing a delay system. 13

For responsible broadcasters like NPR, its Members, and others in public radio, the

10
See Complaints Against Various Broadcast Licensees Regarding Their Airing of the
"Golden Globe Awards" Program, Memorandum Opinion and Order, 19 FCC Red. 4975, 4980
(2004) [hereinafter "Golden Globe Awards"].
II
See id., 19 FCC Red. at 4979-82.
12
Indeed, the Commission appears to have assumed that, because a broadcast station could
prevent the broadcast of an isolated utterance through technological means, see id. at 4980, there
would be no practical consequences. See id. (noting that ''technological advances have made it
possible as a general matter to prevent the broadcast of a single offending word or action without
blocking or disproportionately disrupting the message of the speaker or performer").
13
See id. at 4982 ("We note that one way broadcasters can easily ensure that they are not
subject to enforcement action under our decision today is to adopt and successfully implement a
delay/bleeping system for live broadcasts.").

5
obligation to serve the public interest is more than a statutory mandate; 14 it goes to the heart of

our public service mission. 15 Serving the public interest requires an ongoing assessment of local

community needs and interests to make appropriate programming decisions. News and public

affairs programs, in particular, require the producer to make editorial determinations based on

the issue(s) being addressed, the substance of the programming, and the make-up and needs of

the station's listeners.

The Commission's enforcement approach has made those determinations significantly

more difficult for two reasons. First, while the Commission has attempted to provide guidance

to make enforcement decisions transparent, the results have been inconsistent at best. The

Commission has determined that the use of certain words are appropriate when used in war-

themed fictional films, 16 but are inappropriate in a documentary about "blues" music. 17 Indeed,

the Commission justified its stepped up enforcement efforts to protect impressionable viewers

14
li, 47 U.S. C. 309(a) (authorizing the issuance, renewal, or modification of broadcast
station licenses upon a finding that the public interest, convenience, or necessity would be served
thereby).
15
Congress recognized more than 45 years ago that "[l]ocal stations are the bedrock of this
system and as such must be responsive to the needs and desires ofthe public which they serve."
S. Rep. No. 222, 90th Cong., 1st Sess. 7 (1967). Today, public radio stations comprise a broad
range of public and private, community-based organizations, including non-profit community
groups, colleges and universities, school boards and other local governmental entities, and state
governmental entities.
16
In the Matter of Complaints Against Various Television Licensees Regarding Their
Broadcast on November 11, 2004, ofthe ABC Television Network's Presentation of the Film
"Saving Private Ryan", 20 F.C.C. Red. 4507,4513 (2005).
17
Complaints Regarding Various Television Broadcasts Between February 2, 2002 and
March 8, 2005, Notices of Apparent Liability and Memorandum Opinion and Order, 21 FCC
Red. 2664, 2685 (2006) [hereinafter "Omnibus Order"].

6
and listeners from having to absorb "the first blow" as a general matter, 18 but it has accorded

greater discretion in specific cases. 19

Second, Congress substantially increased the potential forfeiture amounts for

broadcasting indecent matter, and the Commission has sought to expand its discretion by

signaling its willingness to impose forfeitures for each of multiple utterances broadcast by a

station and for each station broadcasting network distributed progranuning. 20 The threat of

severe financial penalties necessarily "chills" speech. The threat of an indecency complaint, let

alone a substantial forfe iture, forces broadcasters to refrain from broadcasting progranuning the

broadcaster would otherwise offer in the public interest. Broadcasting live programming is

particularly problematic because it is impossible to prevent everyone attending from uttering

even a single profanity within range of a broadcast microphone.

Together, uncertainty over the contours of the indecency and profanity prohibition,

combined with the potentially catastrophic consequences of an adverse indecency determination,

have forced responsible broadcast stations and program producers to pursue public interest

progranuning at considerable regulato.ry and financial risk.

B. The Commission's "Zero Tolerance" Approach Appears To Have

Discouraged The Routine Dismissal Of Unfounded Complaints, Disrupting
The License Renewal Process And Creating Uncertainty Among Station
Licensees And Management

The Commission's "fleeting utterance" approach to indecency enforcement has also

affected public radio and other broadcast stations in another, less obvious way. Even an

18
Complaints Regarding Various Television Broadcasts Between February 2. 2002 and
March 8. 2005, Order, 21 FCC Red. 13299, 13308 (2006) (hereinafter "Remand Order"].

19
See Omnibus Order, 21 FCC Red. at 2699.
20
See infra Section II.B ..

7
indecency complaint that is demonstrably unfounded can force broadcast licensees to retain legal

counsel, allocate intemal resources, and incur other out of pocket expenses attempting to

ascertain the basis for the complaint and how to resolve it. The pendency of a complaint often

results in extensive delays in renewing a station license even when the merits of a complaint are

debatable at best. Stations do not want to admit responsibility for broadcasting matter they

believe was not indecent or profane, and the Commission has no incentive to grant license

renewals if it believes there may be merit to a complaint because a renewal will absolve a station

of responsibility for broadcasting the matter at issue. 2 1

While Commission staff should be able to act promptly on an indecency complaint that

fails to allege a violation ofthe Commission's indecency and profanity policy, 22 several factors,

including the Commission's "zero tolerance" approach to enforcement, explain why that has not

been the case. First, electronic communications technology has transformed and facilitated the

filing of complaints. Indeed, the Commission's website provides a step-by-step "click-through"

process,23 including a complaint form. 24 As reported in the Public Notice itself, the ease of

filing complaints has resulted in a significant number of complaints being filed.

Second, the Commission's attempt to sanction every indecent utterance, no matter how

21
The Communications Act prevents the Commission from issuing a Notice of Apparent
Liability (''NAL") for conduct occurring more than one year prior to the NAL or prior to the
commencement ofthe licensee 's current license term, whichever is earlier. See 47 U.S.C.
503(b)(6); 47 C.F.R. 1.80(c). By "holding" an indecency complaint, the Commission can
extend the licensee's ''current license term," and thereby avoid the one-year statute of
limitations.
22
The Public Notice reports that "more than one million complaints," representing 70% of
the pending backlog of indecency complaints, were dismissed during the 6 month period from
September 2012 through March 2013. Public Notice at 1.
23
www.fcc.gov/complaints.
24
apps.fcc.gov/cgb/fcc475B.cfm.

8
fleeting, means that every complaint could potentially result in a notice of apparent liability and

forfeiture. Previously, the second step of the Commission's two-step indecency analysis

required a confluence of factors to form the basis of an indecency finding. 25

The principal factors that have proved significant in our decisions to date are: (I)
the explicitness or graphic nature of the description or depiction of sexual or
excretory organs or activities; (2) whether the material dwells on or repeats at
length descriptions of sexual or excretory organs or activities; (3) whether the
material appears to pander or is used to titillate, or whether the material appears to
have been presented for its shock value. In assessing all of the factors, and
particularly the third factor, the overall context of the broadcast in which the
disputed material appeared is critical. 26

With the abrupt change in the Commission's approach to indecency enforcement, even a single

fleeting utterance can provide the basis of an indecency investigation. It is not surprising,

therefore, that Commission staff may feel compelled to retain complaints until a future

indeterminate opportunity to investigate the matter? 7

C. An "Egregious Cases" Approach Better Accommodates The Constitutionally

Protected Speech Activities Of Broadcasters And Allocates Commission
Resources More Appropriately

As addressed in the preceding sections, the Commission's attempt to sanction even

fleeting utterances has put pressure on responsible broadcasters to avoid programming that might

be deemed indecent or profane for fear of triggering an indecency complaint, enforcement

investigation, and forfeiture. Compounding the problem has been a lack of clear and consistent

25
See In the Matter oflndustry Guidance on the Commission's Case Law Interpreting 18
U.S .C. 1464 and Enforcement Policies Regarding Broadcast Indecency, 16 FCC Red. 7999
(200 1) [hereinafter "200 1 Indecency Policy Guidance"].
26
Id. at 8003.
27
Such a protracted process also calls into question the constitutionality of the current
indecency policy. Licensees that have their license renewals held up for months, if not years,
based on what appears to be an unfounded complaint are being compelled to comply with
speech-restrictions that are anything but transparent and rational.

9
Commission guidance and the prospect of potentially crippling financial penalties. As a result of

the Conunission's "zero tolerance" approach, broadcasters have been forced to pursue their

mission of offering programming they believe best serves the public interest at a substantial risk

of harm.

A more restrained approach focusing on egregious cases of indecent or profane broadcast

matter would reduce the threat to responsible broadcasters. Moreover, such an approach would

focus Commission enforcement efforts on those complaints that are most likely to offend and

harm listeners, thereby conserving scarce Commission resources and limiting the adverse

consequences for broadcasters of non-egregious cases that nonetheless trigger a complaint. By

providing greater room for editorial discretion, an egregious cases approach allows a station or

program producer to make progranuning decisions knowing the Commission will pursue abuses

of discretion rather than second-guessing individual word choices. 28 By adopting a more

practical approach to indecency and profanity enforcement, the Commission staff could routinely

dismiss complaints about broadcast matters that may involve an isolated anatomical reference or

a subject matter offensive to a few but clearly not indecent or profane.

Although context always matters, as the Commission has repeatedly and correctly

observed, 29 an egregious cases approach to indecency enforcement should focus on broadcast

28
See 21 FCC Red. at 2686 ("Although in this case the profane language may have had
some communicative purpose, we do not believe that San Mateo has demonstrated that it was
essential to the nature of an artistic or educational work or essential to informing viewers on a
matter of public importance, or that the substitution of other language would have materially
altered the nature of the work. In this respect, this case is unlike Saving Private Ryan, where we
concluded that deleting offensive words "would have altered the nature of the artistic work and
diminished the power, realism and immediacy ofthe film experience for viewers.").
29
See 2001 Indecency Policy Guidance, 16 FCC Red. at 8002 "(In determining whether
material is patently offensive, the full context in which the material appeared is critically
important.").

10
matter that involves the deliberate use of offensive material to pander, shock, or titillate. 30 NPR

therefore agrees that the Commission's decision in Pacifica Foundation. Inc. 3 1 provides

important guidance for future indecency enforcement. 32 As the Commission there observed, "If

a complaint focuses solely on the use of expletives, we believe that under the legal standard set

forth in Pacifica, deliberate and repetitive use in a patently offensive manner is a requisite to a

finding of indecency. " 33 Attempting to prevent all future broadcast indecency by seeking to

punish every allegedly indecent or profane utterance clearly has not achieved the desired

objective. By focusing more specifically on the graphic and repeated use of sexual or excretory

language broadcast with the intention to pander, shock, or titillate, the Commission wiii more

effectively achieve its objective and avoid harming responsible broadcasters, including public

radio, and the public interest.

II. The Commission Should Adopt Other Policy Clarifications To Better Balance The
Objectives Underlying the Indecency Prohibition With The First Amendment's
Protection of Speech

A. The Commission Should Adopt A More Explicit And Expansive Safe Harbor
For News- and Public Affairs-Oriented Matter

Beyond adopting an "egregious cases" policy for enforcing the indecency and profanity

prohibition, the Commission should clarify that news and public affairs progranuning is entitled

to even greater deference, notwithstanding the potentially offensive matter that may be included

30
Indeed, the Commission had previously said that ''whether the material appears to pander
or is used to titillate or whether the material appears to have been presented for it shock value"
was particularly important in evaluating the overall context of the broadcast at issue. 2001
Indecency Policy Guidance, 16 FCC Red. at 8003.
31
2 FCC Red. 2698 (1987).
32
See Public Notice at 1.
33
Id., 2 FCC Red. at 2699 (emphasis added).

11
within such programming. According greater latitude for the broadcast of news and public

affairs programming would better respect and protect the First Amendment rights of responsible

broadcasters, while allowing the Commission to punish those broadcasters that may seek to

broadcast offensive matter purely for its shock value or to pander or titillate.

An explicit presumption in favor of news and public affairs programming is consistent

with a long line of Commission precedent emphasizing a restrained approach to such

programming. 34 In the Peter Branton case, for example, the Commission stated, "we

traditionally have been reluctant to intervene in the editorial judgments of broadcast licensees on

how best to present serious public affairs programming to their listeners." 35 Likewise, a

broadcast presentation of sexual issues in the context of a sex education class was deemed not

indecent because it was presented in a clinical or instructional manner rather than in a pandering,

titillating or vulgar one. 36

More recent Commission decisions have created uncertainty regarding the applicability

of the Commission's indecency policy to news and public affairs progranuning. First, in

adopting its "fleeting utterances" policy, the Commission essentially reduced to one the three

contextual factors previously used to determine whether a depiction or description of sexual or

excretory activities or organs was patently offensive according to contemporary community

34
See Remand Order, 21 FCC Red. at 13327 (characterizing the denial of an indecency
complaint regarding material broadcast during "The Today Show" as a "restrained approach
[that] is consistent with a long line of Commission precedent").
35
Peter Branton, 6 FCC Red 61 0, 61 0 ( 1991 ). In Branton, the Commission decided that an
NPR news story on Jolm Gotti, which included a wiretap of a conversation in which Gotti
repeatedly used variations of the "F-Word," was not indecent because the language was an
integral part of a bona fide news story and not used gratuitously or to pander or titillate. Peter
Branton, 6 FCC Red. at 610.
36
King Broadcasting Co. (KING-TV), 5 FCC Red. 2971 ( 1990).

12
standards 37; that factor is the explicitness or graphic nature of the description or depiction, which

could include a single, fleeting utterance. 38

Then, the Commission applied its " fleeting utterance" policy to a news interview, finding

the isolated use of the word "bullshitter" on CBS's The Early Show to be "shocking and

gratuitous," "particular(y during a morning television interview."39 While the Commission

subsequently reversed itself,40 the resolution of the matter left the extent of the Commission's

deference to bona fide news or public affairs programming uncertain. Thus, notwithstanding the

denial ofthe complaint in that matter, the Commission's decision also noted that, ''to be sure,

there is no outright news exemption from our indecency rules." 41 More importantly, the

Commission denied the complaint, "regardless of whether such language would be actionable in

the context of an entertainment program," 42 suggesting there might not be a significant

37
Previously, the Commission's cases focused on the following factors: (1) "the
explicitness or graphic nature of the description or depiction"; (2) ''whether the material dwells
on or repeats at length the description or depiction"; and (3) ''whether the material appears to
pander or is used to titillate, or whether the material appears to have been presented for its shock
value." 2001 Indecency Policy Guidance, 16 FCC Red. at 8003.

38
Golden Globe Awards, 19 FCC Red. at 4979. Compare Indecency Policy Guidance, 16
FCC Red. at 8003 ("no single factor generally provides the basis for an indecency finding").
39
Omnibus Order, 21 FCC Red. at 2699 (emphasis added).
40
Complaints Regarding Various Television Broadcasts Between February 2, 2002 and
March 8, 2005, 21 FCC Red. 13299, 13328 (2006) [hereinafter "Remand Order"].
41
Id. at 13327.
42
ld. at 13328.

13
difference between entertainment programs and news and public affairs programs. 43

If the Commission is unwilling to adopt an absolute safe harbor for news and public

affairs programming, it should at least clarify that broadcasters will not be subjected to

indecency liability for material contained in bona fide news or public affairs progranuning even

if such matter would otherwise constitute an ''egregious case" in another context.

By clarifying the additional deference accorded to news and public affairs programming,

the Commission would provide broadcasters with a better understanding ofwhat type of speech
44
will, in fact, be deemed indecent. Such clarification would reinforce the paramount importance

the Commission itselfhas attached to encouraging free-ranging programming and broadcasters'

editorial discretion. 45 The Commission has stated, "[ i]t was certainly not our intent, even in our

Pacifica ruling to inhibit coverage of diverse and controversial subjects by licensees, whether in
46
news and public affairs or in dramatic or other programming contexts." By providing an

explicit exemption from indecency liability for material contained in bona fide news or public

affairs programming, or at least clarifying a heightened deference to such programming, the

Commission would go a long way towards ensuring such coverage is not inhibited.

B. The Commission Should Clarify The Implementation Of Its Statutory

Forfeiture Authority To Reduce Uncertainty And The Corresponding
Chilling Effect

Just as broadcasters must be given notice of what will and will not be actionable as an

43
See also Fox TV, Inc. v. FCC, 613 F.3d 317,334 (2d Cir. 2010) ("The FCC points to its
"bona fide news" exception .. .(b]ut the FCC has made clear that it considers the decision to
apply this exception a matter within its discretion. Otherwise, why not simply make an outright
news exception?").
44
See id. at 330.

45
See In reApplication ofWGBH Educ. Found., 69 F.C.C.2d 1250, 1254 (1978).
46

14
obscene or indecent broadcast,47 the Commission should take this opportunity to provide clearer

guidance regarding the forfeiture amount that may be assessed in a particular case. Despite

proposing a guideline-based approach for forfeitures to provide predictability to broadcasters and

the public over fift een years ago, the Commission still relies too much on a case-by-case

approach that turns on the specific facts and circumstances of the situation. Compounded by

extremely large potential forfeiture amounts and the possibility of multiple violations within a

single program, this lack of predictability has created a pronounced "chilling" effect for

broadcast speech. To remove this threat, the Commission should explicitly clarify the criteria

that must be met before a licensee will be assessed a forfeiture at or approaching the statutory

maximum. This will allow the Commission to "apply its guidelines in a consistent and fairly

uniform manner," 48 while ensuring that ''those enforcing the law do not act in an arbitrary or

discriminatory way. " 49

While the Commission has been authorized to regulate obscene and indecent broadcasts

since 1948, it only began to do so in the 1970s.5 For the next fifteen years, the Commission

assessed forfeitures on a case-by-case basis, looking at the facts and circumstances of each case,

along with relevant precedent, to determine whether to assess a forfeiture and, if so, how large a

forfeiture to assess. 5 1 In 1989, Congress amended the Communications Act of 1934,

47
FCC v. Fox TV Stations, Inc., 132 S. Ct. 2307 (2012) [hereinafter "Fox II"].
48
The Conunission's Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines, 12 FCC Red. 17087 (1997) [hereinafter "1997
Report and Order"].
49
Fox II, 132 S. Ct. at 2317.
50
ld. at 2312.
51
See In the Matter of Standards for Assessing Forfeitures, 6 FCC Red. 4695, 4695 (1991)
[hereinafter "1991 Policy Statement"].

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substantially raising the maximum forfeiture amounts that the Cmrunission was authorized to

impose under 503(b). 52 In response, the Commission released a Policy Statement creating

specific standards for assessing forfeitures going forward. 53 The Conunission did so to move

away from its case-by-case approach in favor of a guidelines-based approach to provide greater

clarity and predictability for broadcasters. 54 The Commission's 1991 Policy Statement moved

toward such a guideline-based approach by establishing base forfeiture amounts for every

503(b) violation, while also creating a schedule of percentage adjustments that could raise or

lower these baseline amounts when various adjustment factors were present. 55

Despite this positive step, however, the Commission has relied too much on a case-by-

case approach with respect to indecency and profanity forfeitures in the interest of preserving

agency discretion. Thus, in an ensuing notice and comment rulemaking proceeding concerning

forfeitures generally, 56 the Commission eliminated the percentage ranges for upward and

downward adjustments to a base amount "to reflect more clearly the Commission's discretion to

52
Pub. L. No. 239, lOlst Cong., 1st Sess., 103 Stat. 2131 (1989).
53
1991 Policy Statement, 6 FCC Red. at 4695.
54
Id. Such an approach would ensure that comparable violations received comparable
penalties, while at the same time providing "guidance to the public regarding the forfeitures that
can be expected in connection with specific violations." ld.
55
Id. The upward adjustment criteria that the Commission provided were: egregious
conduct; ability to pay/relative disincentive; intentional violation; substantial harm; prior
violations of same or other requirements; substantial economic gain; and repeated or continuous
violation. The downward adjustment criteria were: minor violation; good faith or voluntary
disclosure; history of overall compliance; and inability to pay.
56
Shortly after being released, the 1991 Policy Statement was vacated by the United States
Court of Appeals for the District of Columbia due to the Commission not following mandatory
notice and comment periods. See United States Telephone Association v. FCC, 28 F.3d 1232
(D.C. Cir. 1994). The Commission responded by issuing a notice of proposed rulemaking,
receiving comments, and then releasing the 1997 Report and Order.

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increase or reduce a forfeiture penalty as much as warranted based on the unique facts of each
57
case." With regard to indecency and profanity forfeitures specifically, when Congress raised

the maximum indecency and profanity forfeiture amounts 1000 percent in 2005 in the wake of

the infamous Super Bowl ''wardrobe malfunction," 58 the Commission implemented the increased

maximum forfeiture amount summarily and without addressing the circumstances that might

warrant actually imposing such extreme financial penalties. 59

The Commission's forfeiture guidelines have become murkier still because of two other

steps the Cotmnission has taken to maximize its discretion. First, the Commission has

announced that broadcasters might be liable for every obscene or indecent utterance in a

program, instead of the traditional per-program approach that the Commission had previously

used. 60 Second, the Commission has assessed forfeitures against each owned or affiliated station

57
1997 Report and Order, 12 FCC Red. at 17100 (emphasis added).
58
The Broadcast Decency Enforcement Act of2005, Pub. L. No. 109-235, 120 Stat. 491
(2006) (increasing the maximum forfeiture for the broadcast of obscene, indecent, or profane
matter from $32,500 to $325,000, up to a maximum of$3,00,000 for any single act or failure to
act).
59
In the Matter of Amendment of Section 1.80(b)(l) of the Commission's Rules; Increase
of Forfeiture Maxima for Obscene. Indecent. and Profane Broadcasts to Implement The
Broadcast Decency Enforcement Act of2005. Order, 22 FCC Red. 10418 (2007). The
Commission did not conduct a notice and comment rulemaking because it was not legally
required. Id. at 10419.
60
See In the Matter oflnfinity Broadcasting Operations. Inc.; Licensee of Station WKRK-
FM. Detroit. Michigan, 18 FCC Red. 6915 (2003) (''while the Commission has traditionally
viewed all of the utterances in one program to be a single utterance and thus a single violation, ..
. in the future, we may treat situations like this as multiple, repeated violations with the
accompanying increase in forfeitures").

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of a network based on the broadcast of a single network program. 61 With these developments,

the Commission has substantially expanded its discretion since the 1997 Report and Order

without providing additional guidance to clarify the exercise of that discretion.

The chilling effect of such broad discretion is profound and inevitable. Just as vagueness

in the Commission's indecency and profanity enforcement criteria chills protected speech,

vagueness in the C01mnission's forfeiture policy forces broadcasters to "choose between not

airing ... controversial programs [or] risking massive fines or possibly even loss of their

licenses." 62 Only by clarifying the applicability of potential forfeiture amounts will this chilling

effect recede. As such, the Commission should take this opportunity while reviewing its overall

broadcast indecency policy to establish explicit guidelines for assessing various forfeiture

amounts.

The Commission can still reserve its discretion by taking into account the various upward

and downward escalating factors, but it should significantly limit the current scope of its

discretion. As the Supreme Court cautioned in Fox II, "precision and guidance are necessary so

that those enforcing the law do not act in an arbitrary or discriminatory way."63 Reserving the

discretion to increase a forfeiture from $7,000 to $325,000 without providing guidance on when

or why such a decision will be made creates opportunities for just the sort of arbitrary decision-

making the Court was cautioning against. Accordingly, the Commission should reserve the

$325,000 statutory maximum amount for only the most egregious, intentional, and repeated

61
See In the Matter of Complaints Against Various Licensees Regarding Their Broadcast of
The Fox Television Network Program "Married by America" on April 7, 2003. Notice of
Apparent Liability and Forfeiture, 19 FCC Red. 20191 (2004) (imposing a $7,000 fine against
169 owned or affiliated stations, to produce a total forfeiture of$1,183,000).
62 Fox II, 132 S. Ct. at 2316 (citing Fox TV, Inc. v. FCC, 613 F.3d 317,327 (2d Cir. 2010)).
63
Id. at 2309.

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instances of obscene or indecent speech used to pander, shock, or titillate. Any broadcast that

does not meet all ofthese criteria should not be assessed such a significant forfeiture penalty, and

the Commission should make that point clear..

In addition, the Commission should limit the amount of a forfeiture in most cases to the

same levels as the other 503(b) forfeitures, which are capped at a statutory maximum of

$25,000.64 The Corrunission would still have the authority to adjust a forfeiture for the

transmission of obscene or indecent material between a warning and $25,000, while reserving

the statutory maximum of$325,000 for egregious cases, such as the broadcast of obscene

matter.65 Finally, the Commission should explicitly adopt the traditional per-program approach

for determining how many violations a licensee has committed instead of creating a per-

utterance approach, absent truly unusual circumstances. Assessing multiple forfeiture penalties

against a broadcaster for violations that occurred within a single program should be reserved for

especially egregious circumstances, such that the broadcaster knew or should have known of the

potential consequences ofbroadcasting the matter in question.

By limiting the scope of its discretion in this way, the Conunission will retain its ability

to determine an appropriate forfeiture amount in light of the particular facts and circumstances of

a given case, while simultaneously ensuring that the Commission's forfeiture authority serves as

an appropriate deterrent. Broadcasters who blatantly ignore the restrictions on broadcasting

indecent or profane material will be penalized severely under these guidelines, while

broadcasters who are making a good faith effort to work within the Commission's rules will be

64
47 U.S.C. 503(b)(2)(A).
65
Unlike indecent or profane matter, obscenity receives no First Amendment protection and
may not be broadcast at any time. See 2001 Indecency Policy Guidance, 16 FCC Red. at 8000
(citing Miller v. California, 4 13 U.S. 15 (1973)).

19
protected from the heaviest fines. By clarifying its policies in this way, the Commission can

reduce the chilling effect of its current approach as Fox II only recently warned about.

Conclusion

For the foregoing reasons, and as more fully stated above, NPR supports the proposal to

focus the Commission's indecency and profanity enforcement efforts on egregious cases and

urges the Cotmnission to adopt the other measures proposed herein.

Respectfully submitted,

NATIONAL PUBLIC RADIO, INC.

Terri Minatra
General Counsel and Vice President
Of Legal and Business Affairs
Michael Riksen
Vice President, Policy and Representation
Rishi Hingoraney
Director of Public Policy and Legislation
Gregory A. Lewis
Deputy General Counsel
Brian Rideout
Counsel
Stuart Harding
Visiting Fellow

1111 North Capitol Street, N.E.

Washington, DC 20002
202/513-2040

June 19, 2013

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