On March 23, 2015, the Federal Communications Commission proposed a fine of $325,000 – the maximum amount possible – against the licensee of television station WDBJ in Roanoke, Virginia for airing sexually explicit content during a newscast. According to the Notice of Apparent Liability for Forfeiture, WDBJ aired a video clip that included less than three seconds of footage of “an erect penis being stroked” during a news story about a former adult film star who joined a local volunteer rescue squad. The NAL states that the footage aired during the 6:00 p.m. newscast on July 12, 2012, within a small box. The station did not dispute that the footage aired, but instead explained that its inclusion in the newscast had been wholly inadvertent. The station also argued that the image was not actionably indecent under the Commission’s rules because of its fleeting nature, that the station lacked notice that the Commission would find such material indecent, and that the Commission’s indecency rules are unconstitutional. The Commission rejected each of these arguments.

The Commission’s indecency rules ban the broadcast of obscene material at any time and prohibit radio and television broadcasters from airing indecent material between the hours of 6:00 a.m. and 10:00 p.m. The Commission defines indecent speech as “material that, in context, depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium.” The Commission found that the image broadcast by WDBJ depicted a sexual organ and sexual activity under the first prong of this test. The Commission then turned to the second prong – patent offensiveness – which itself is analyzed using a three-part analysis which considers (1) the explicitness or graphic nature of the material; (2) whether the material is repeated or dwelled upon; and (3) whether it panders, titillates, or shocks.

Here, WDBJ argued that, under the second element of this test, the image was too fleeting to be actionable. The Commission rejected this contention, finding that “the duration of the material was sufficient to attract and hold viewers’ attention” and “[e]ven relatively brief material can be indecent where other factors contribute to a finding of patent offensiveness.” The Commission did not go so far as to say that a “fleeting nudity” “defense” can never succeed, but did signal that such a defense will be difficult to prevail upon. The FCC relied on the fact that viewer complaints had been filed about the material broadcast on WDBJ to support its assertion that the “material was sufficient to attract and hold viewers’ attention.” Viewer (or, in the case of radio, listener) complaints typically cause the FCC to initiate an indecency inquiry in the first instance. The FCC’s decision suggests that so long as it receives such a complaint, it will find the second prong of its patent offensiveness test satisfied.

Turning to WDBJ’s other arguments as to why it should not be fined, the Commission rejected each in turn. First, the Commission rejected WDBJ’s argument that it lacked sufficient notice that the Commission’s rules prohibit the broadcast of indecent material during the evening news. In so doing, the Commission stated that it had “repeatedly held that there is no exception from indecency laws for news broadcasters” and that it had found material, some of which the FCC said was “far less graphic than that at issue here” to be indecent “notwithstanding the news context in which the licensee presented it.” The Commission similarly rejected WDBJ’s argument that the Commission’s 2013 Public Notice, in which it asked for comment on its indecency rules, bars enforcement action and failed to provide broadcasters an articulable standard by which the Commission will determine whether speech is indecent. The Commission noted that the 2013 Public Notice was issued after the WDBJ broadcast at issue, and also explicitly stated that the Commission’s substantive indecency policies remain in effect unaltered and that the Commission or Enforcement Bureau “may take enforcement actions during the pendency of this Public Notice.” The Commission found that the station had sufficient notice even though the agency has not issued any updated guidance to the industry regarding indecency since receiving comments, even though it has reached inconsistent results in indecency cases involving news programming, and even though this case was the first one to impose any fine for indecency since the Supreme Court issued its 2012 decision in Fox Television Stations, Inc. v. FCC. (All of the other FCC actions on indecency matters since that time have involved consent decrees.) Finally, the Commission rejected WDBJ’s argument that its indecency policy is unconstitutional, affirming that Pacifica “remains valid and supporting authority for the Commission’s indecency enforcement.”

Having rejected WDBJ’s legal arguments, the Commission next considered how much it should fine the station. Acknowledging that it had never before imposed the maximum forfeiture allowable for an apparent indecency violation and that the base fine for indecency violations is only $7,000, the Commission decided to impose the maximum penalty in this case. Citing its determination that the material broadcast was “extreme and grave,” its view that the station should have taken greater care to avoid the transmission of the material to viewers, and the licensee’s alleged “ability to pay,” the Commission determined that a fine of $325,000 was appropriate.

The proposed forfeiture sends a clear message to broadcasters that, despite recent litigation and a request for comment on the Commission’s indecency policies, the Commission believes that its indecency rules (and its ability to enforce them) are alive and well, even in the context of news programming. Notably, since the broadcast at issue in this case aired, the maximum fine for an indecency violation has increased even further to $350,000, so violations come with a potentially hefty price-tag. Broadcasters should thus remain vigilant not to air indecent programming outside of the “safe harbor” hours of 10 p.m. to 6 a.m.

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