Up against a five-year limit to act on broadcast indecency complaints, the FCC late last month added two more examples to its self-described “vigorous enforcement.”

In the first the FCC fined 44 stations $27,500 each—$1,210,000 in total—for an NYPD Blue episode that showed a woman’s buttocks five years ago.

In the second case, the FCC fined 13 stations $7,000 each—a combined $91,000—for an April 2003 Fox-produced episode of the reality show Married by America.

In both cases the FCC analyzed each program under the legal definition of prohibited “indecent” material. It is material that, “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.”

Applying this standard has always involved a lot of subjectivity. Past commissioners often erred on the side of the First Amendment and the ban on FCC broadcast censorship. Former FCC Chairman Michael Powell, for instance, once said he would not be the “national nanny” in this sensitive area, but later presided over significant enforcement action. The current commissioners pursue what they call necessary “vigorous enforcement.”

Ultimately the courts will decide whether the FCC has gone too far. The Supreme Court, for example, is considering whether to review a lower court ruling that FCC fines against fleeting and isolated words—which broke with precedent—should be reversed or upheld.

In the meantime, television stations that want to avoid fines, and those who represent them, must take what lessons they can from the two most recent cases. These lessons are two-part:  understanding the extent of the “vigor,” and being aware of the available antidotes.

Extent of the Vigor

Not all these factors are new, but the degree of attention to indecency, and important details of enforcement, are.

Easing of complaint requirements—Enforcement has always been complaint-driven. In 2005 the FCC took the complaint-encouraging step of placing a simple complaint form on its Web site. From last month’s rulings:

One complaint identifying the station and the program is all it takes to produce an FCC investigation and Notice of Apparent Liability, even if the complainant never saw the program. In last month’s Married decision, the FCC cut the number of fined stations from 169 to 13 because the other 156 had no complaints against the episode. This, the FCC said, was “consistent with our policy of restrained enforcement in indecency proceedings.”

The FCC cites “numerous complaints” without indicating whether they are “cookie-cutter” and all from the same source. Stations are not entitled to see the complaints before having to defend against them.

Use of a national, FCC-based standard to judge what is “patently offensive by contemporary standards for the broadcast medium”—This is not new, but it continues to exclude from consideration obvious differences in community norms in our diverse, pluralistic nation. Last month the commission reiterated its 2004 assertion that it has the advantage of being the expert agency in this area: “We rely on our collective experience and knowledge developed through constant interaction with lawmakers, courts, broadcasters, public interest groups and ordinary citizens, to keep abreast [an odd choice of words] of contemporary standards for the broadcast medium.”

Limitation of defenses—In one or both February cases, the FCC rejected the defenses of the use of pixilation and parental warnings; award-winning artistic and social merit and actor performances in NYPD Blue; and the fleeting nature of the challenged material. Earlier the FCC had refused to excuse as fleeting the tenth-of-a-second Janet Jackson nipple incident during a Super Bowl half-time show.

Source of programs—The new decisions reiterate rejection of the defense of lack of station control over programming produced elsewhere. Each licensee is expected to make a program-by-program determination of acceptability for broadcast of each program. When a station has reason to be aware of a potential problem, such as receipt of advance information from its affiliated network, the FCC expects the station to request and preview a tape so that it can require changes before broadcast. Last month the FCC showed no sympathy for the practicalities of this. Though there is no precedent yet, stations that lease digital subchannels to outside programmers should beware of potential liability for multicast content.

Available Antidotes

The FCC has wide discretion as to whether to impose fines and their amount. Even if rejected in last month’s or earlier cases, an inoculating step may work in another instance, as the FCC must evaluate each case individually.

Safe harbor—This is often the strongest, best defense. The same program can be “indecent” if aired outside the 10 p.m. to 6 a.m. “safe harbor” but not “indecent” if aired completely within it. Different affiliates airing the identical network program have been found guilty or innocent based on the time zone of their market.

A principal purpose of the safe harbor is confining adult material to times when children are less likely to be in the audience. In last month’s Married Forfeiture Order the FCC said “many of the broadcast-only televisions are in children’s bedrooms,” and rejected arguments that indecency regulation should be reduced because broadcasting has more competition and is less pervasive than before the Internet, I-pods, cable, satellite and telco TV. Even in the safe harbor, however, it’s not “anything goes,” and warnings and other antidotes can be mitigating.

Warnings/advisories/ratings, to parents and other viewers, of potentially sensitive material—Though unavailing at times, this can be a mitigating factor and is relatively easy to implement.

Pixilation or other obscuring, “anti-graphic” steps—These can be better than nothing, especially if the material complained of is a relatively small part of a total program. Last month in NYPD Blue the FCC noted that the actress wore no “g-string or other clothing.”

Substitution of programs—Not often a happy choice, but an available option.

Contextual consistency—The FCC denied complaints of foul language in the film Saving Private Ryan, finding that it was part of the context of soldiers at war and not there to titillate. This antidote is difficult to count on, though, because of seeming inconsistencies in treatment of different programs.

Air prerecorded rather than live programming—This alternative exemplifies the chilling effect that vigorous enforcement can have. But it is an option that may allow more control over liability-producing material.

“Meritorious” programming—The social or artistic merit of a program can be a factor in determining whether material is patently offensive. In terms of potential fines, the Married episode, showing sexual scenes from pre-wedding bachelor and bachelorette parties featuring professional strippers, was an easy target for regulators.

In Conclusion

In a vigorous enforcement environment it can be challenging to avoid indecency liability and the time and expense of defending against it. Absent a change of environment from the courts, factoring the extent of the vigor into programming and operations decisions—and integrating available antidotes—are advisable.

This column on TV law and regulation by Michael D. Berg, a veteran Washington, D.C. communications lawyer and the principal in the Law Office of Michael D. Berg, appears monthly. He is also the co-author of FCC Lobbying: A Handbook of Insider Tips and Practical Advice. He can be reached at mberg@michaelberglaw.com or 202-298-2539.

Note: This article provides general guidance only and is not a substitute for individualized legal advice for particular situations.