Broadcasters believe that there is no need for further congressional action on the issue of indecency on broadcast stations. Imposing further additional burdensome regulations on local radio and television stations alone would not be an effective way of limiting children's potential exposure to allegedly indecent material. Moreover, continued improvements in blocking technologies address indecency issues in a manner more consistent with the First Amendment than some of the government's recent legislative and regulatory actions that have chilled broadcasters' speech. Following the FCC's changes in its indecency enforcement policies in recent years, NAB has worked to show how these policies adversely impact broadcasters and their programming.
Issue
There are continuing calls to impose stricter indecency content regulation on only over-the-air broadcasters. Imposing further additional burdensome regulations on local radio and television stations would not be an effective way of limiting children’s potential exposure to allegedly indecent material.
History
In 2006, Congress raised the maximum forfeiture allowable for broadcasters deemed to have violated the FCC’s indecency rules by a factor of 10 – from $32,500 to $325,000 per violation. Congress acted to raise indecency forfeitures dramatically even though the vast majority of broadcasters have never violated the indecency rules. The FCC’s receipt of indecency complaints does not demonstrate a widespread problem that warrants further legislation, especially if applicable only to over-the-air broadcasting. For example, Mediaweek reported in December 2004 that 99.8 percent of all indecency complaints made to the FCC in 2003 were filed by a single activist group. Imposing severe penalties on over-the-air broadcasters for alleged indecency also raise grave First Amendment concerns.
Local stations are concerned about broadcasting live from local events where stations cannot completely control what observers and bystanders might spontaneously say or do. The FCC’s inconsistent and arbitrary indecency enforcement has also chilled non-indecent content because broadcasters do not know what programming the FCC will or will not regard as indecent. Substantially increased fines and the FCC’s delay of license renewals due to the existence of unproven indecency complaints have only exacerbated these problems. Large fines for even inadvertent indecency (such as fleeting expletives in live programming) could severely impact some broadcasters, particularly those in small and medium markets. As a result, local stations have engaged in self-censorship, refusing to air news programming about terrorism and the war in Iraq, documentaries and Academy Award winning motion pictures.
In a 2008 brief to the Supreme Court in the "fleeting expletives" case, NAB explained how the FCC's changes in indecency enforcement have burdened local stations and impacted their programming, especially live programming including news. The question of the constitutionality of the FCC's indecency policies is being considered by federal appeals courts and will likely to return to the Supreme Court.
NAB Position
There is no need for further congressional action on the issue of indecency on broadcast stations. Continued improvements in blocking technologies will help to address these issues in a manner more consistent with the First Amendment.
Broadcasters will work to focus continuing concerns about indecent programming in a manner that will not further chill free speech, and that will not unduly burden broadcast stations alone.
Action Needed
Congress should not pass additional legislation imposing stricter content-based
restrictions on broadcast outlets. Further legislation is unnecessary and will be ineffective in shielding children from potentially inappropriate content, given the vast array of other media outlets, including cable, satellite and the Internet, that are not subject to indecency regulation.
