Broadcast attorneys are still grappling with how to interpret the FCC’s record $325,000 indecency fine against WDBJ, the Schurz Communications CBS affiliate in Roanoke, Va.
Not only was it the first indecency fine in seven years, it was the FCC’s biggest fine ever levied for a single infraction. In between the two fines, the FCC disposed of 70% of its backlogged indecency complaints, saying it would focus only on “egregious” cases. The FCC opened a proceeding, never finished it and never defined “egregious.”
Now the industry doesn’t know if the FCC had “egregious” in mind when it levied the whopping fine and, once again, is faced with not knowing what the broadcast indecency standards are.
“That egregious policy wasn’t mentioned in the notice of apparent liability [against WDBJ],” Dennis Corbett, an attorney with Lerman Senter said during an NAB Show session Tuesday afternoon. “Nothing happened for a long time, now this [indecency case],” Corbett said.
In Corbett’s view, the offensive image displayed on the air for three seconds as part of a story during the evening didn’t fall within the definition of egregious. “It was fleeting, it was a fraction of the screen, it was news and most importantly, it was a mistake,” Corbett said. “Given all those factors, I don’t see that the FCC is using utmost restraint; [the FCC] threw the book at them.”
If, as FCC Enforcement Bureau Chief Travis LeBlanc said earlier he was bringing cases to act as a deterrent, the WDBJ case wouldn’t seem to fit.
“There’s not a great outbreak of these images on TV,” Corbett said.
Other attorneys on the panel agreed that the case created a strict liability atmosphere that could have a chilling effect on news coverage.
“The FCC doesn’t give enough guidance,” said Sherrese Smith, a partner with Paul Hastings LLP. “If we could get more explanation around ‘egregious’ that would be great.”