In a recent C-SPAN interview, President Bush seemed to acknowledge that his Federal Communications Commission has had some trouble figuring out what exactly constitutes television indecency: "Government can, at times, not censor, but call to account, programming that gets over the line. The problem, of course, is the definition of 'over the line.' That's the key."
Defining that line should be a priority for the person Bush chooses to replace outgoing FCC Chairman Michael Powell. The new appointee will need to address the widespread confusion in the television industry and among the viewing public about the agency's aggressive indecency campaign of the past year.
This confusion caused 66 local ABC stations to replace their network's presentation of Saving Private Ryan in November. The stations pulled the movie because of concerns about incurring major fines. But it turns out that the stations censored themselves for no reason: The FCC is expected to announce soon that the film's airing did not violate any indecency statutes.
Fines mounting
The stations' extreme caution was understandable. Since Janet Jackson's "wardrobe malfunction" at last year's Super Bowl, the FCC has issued almost $8 million in fines for indecent programming. Under present law, the agency can penalize each station up to $32,000 per incident, and bills in Congress would raise the maximum to $500,000.
Paul McCartney's fully clothed halftime show at Sunday's Super Bowl will not draw the FCC's ire, but the telecast was not without controversy. A provocative ad during the game perfectly captures the climate in which we live.
The ad for GoDaddy.com, an Internet domain licensing site, showed a busty young woman in a tank top being grilled at "Broadcast Censorship Hearings," when her strap snaps and nearly exposes her breast. Fox, ironically, put the ad through its own ad hoc internal censorship hearing after it aired in the first half. After consulting with the NFL, Fox officials decided to pull the ad's rerun, scheduled for the fourth quarter.
"We poked fun at censorship and guess what? We were censored. It's kind of scary," Paul Cappelli, chief executive of the Ad Store, which created the spot, told The New York Times.
Perhaps the incident can be blamed on a skittish NFL, not the FCC, but it's an unmistakable sign of the times.
The FCC defines broadcast 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 references." And its Web site adds with emphasis: "Context is key!"
It seems difficult to imagine that a few battlefield expletives in Saving Private Ryan would make the Academy Award-winning movie about D-Day inappropriate for adult viewing, particularly while the nation is at war. But when some stations asked the FCC for guidance, officials refused to give any.
Without clear rules, the government has created a guessing game for broadcasters in which viewers will end up the losers. Were residents of the Cleveland community, for example, better served that night by WEWS-TV's substitute choice of Batman Forever?
TV will play it safe
As long as there is so much uncertainty, TV executives will err on the side of not airing or producing shows with the slightest chance of bumping up against the indecency strictures. That will include programs on important, if sensitive, topics. The lack of clarity also undermines any valid concerns about indecent programming.
As a father of two young children, I see TV's powerful influence and understand the need to monitor its content. And it's a job that the industry cannot be totally trusted to do itself. But the FCC's inconsistent attempts have served only to make a mockery of the subject. It is tough to believe its staff is still investigating whether NBC violated the law by showing unclothed Greek statues during the opening ceremonies of the 2004 Olympics in Athens.
The new chairman should take a new look at the agency's indecency rules and process. He or she also should start a dialogue with the public and industry to find some kind of a consensus about what exactly are the nation's proper "community broadcast standards."
There also needs to be a mechanism that provides quick and ongoing guidance to broadcasters to avoid the Saving Private Ryan situation. If the new chairman is willing to undertake some changes, then the FCC could be a constructive influence. That would help convince the industry and the public, including a skeptical viewer-in-chief.
In the C-SPAN interview, Bush expressed doubts that TV oversight is a governmental, rather than a familial, job. "As a free-speech advocate, I've often told parents who were complaining about content, 'You're the first line of responsibility. They put an off button on the TV for a reason.' "
Former Supreme Court justice Potter Stewart best summed up how difficult it is for the government to be a line of defense in his famous definition of pornography: "I know it when I see it."
If the FCC is going to continue to take on that responsibility, it better make sure that everyone else can see indecency just as clearly.
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