IP: Bare skin on TV must be banned by FCC, says Gloria Tristani

[David Farber <dave () farber net>]

> From: Declan McCullagh <declan () well com>
>
>
> Some background:
>
> http://www.politechbot.com/p-02049.html
> Prudish FCC commissioner plans to run for New Mexico governor
> May 21, 2001
>
> http://www.politechbot.com/p-01864.html
> FCC's Tristani complains about yet another "indecent" broadcast
> March 29, 2001
>
> http://www.politechbot.com/p-01781.html
> Prudish FCC commissioner insists "piss" should be punished
> March 2, 2001
>
> ---
>
> FOR IMMEDIATE RELEASE:          News Media Contact:
> June 27, 2001                   Paul Gallant at 202-418-2300
>
>
> PRESS STATEMENT OF COMMISSIONER GLORIA TRISTANI
> Re: Enforcement Bureau Letter Ruling on Indecency Complaint
> Against WTXF-TV, Philadelphia, Pennsylvania
>
>
>         The FCC's Enforcement Bureau has dismissed an indecency complaint 
> filed by Ms. Cherie Degnan of Ambler, Pennsylvania.  On January 23, 2001, 
> Ms. Degnan wrote to the FCC's Enforcement Bureau and explained that, 
> earlier that day, "full frontal male and female nudity was broadcast as 
> part of a News Program" on WTXF-TV of Philadelphia, 
> Pennsylvania.  According to Ms. Degnan, those images were broadcast at 
> approximately 8:53 a.m. without advance warning from the television 
> station.  The Enforcement Bureau dismissed Ms. Degnan's complaint 
> because, according to the Bureau, her failure to provide a "tape, 
> transcript, or significant excerpts" of the broadcast prevented the 
> Bureau from determining whether the images broadcast were indecent in context.
>
>         At the outset, I would note that that the Bureau letter 
> dismissing Ms. Degnan's complaint seems to rely erroneously on the First 
> Amendment to justify the procedural hurdles involved with the filing of 
> indecency complaints. The Enforcement Bureau tells Ms. Degnan that "the 
> FCC generally requires complainants to provide a full or partial tape or 
> transcript or significant excerpts of the program" because a 
> broadcaster's speech has certain protections under the First Amendment.
>
> In fact, the First Amendment has nothing to do with the Bureau's 
> evidentiary standard for complaint filing.  The First Amendment simply 
> ensures that, once all the evidence is in, the FCC does not punish 
> broadcast speech that is not indecent.  The First Amendment does not 
> require a certain level of proof in a citizen's complaint to the FCC.  The 
> FCC is free to gather evidence however it wants - from complainants or 
> from broadcasters.
>
>         These complaint filing requirements (tape, transcript, or 
> significant excerpt) are not only unrelated to the First Amendment, they 
> are disconnected from reality.  People do not normally tape or transcribe 
> the programs they are watching or listening to, and thus it is unfair to 
> expect people file such material with their complaints.  If for some 
> reason the complainant happens to have that information, the easier it 
> will be for the Commission to evaluate the complaint.  But failing to 
> produce that kind of documentation should not result in dismissal of 
> indecency complaints, as is the Bureau's general practice.
>
>         As to Ms. Degnan's specific complaint, there is no disagreement 
> that context is critical in determining whether the broadcast of a 
> particular statement or image is indecent.   We know from Ms. Degnan's 
> letter that male and female frontal nudity was televised in the morning, 
> when children are likely to be in the audience.  We also know that courts 
> have affirmed the Commission's ban on the broadcast of "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."  Since Ms. Degnan's complaint appears to 
> describe the televised broadcast of "sexual organs" - in her words "full 
> frontal male and female nudity" - during the time of day when indecent 
> broadcasting is prohibited, it is certainly possible that the Bureau 
> would have found an indecency violation.  In my view, the complaint 
> contained sufficient evidence to begin an investigation into whether the 
> context of this nudity amounted to an indecent broadcast.  At a minimum, 
> Ms. Degnan's complaint merited more than the summary dismissal it 
> received from the Bureau.
>
> In sum, the Bureau has continued to enforce unreasonable filing 
> requirements for indecency complaints (tape, transcript, or significant 
> excerpt).  The Bureau then failed to mitigate that problem by deciding not 
> to contact WTXF to inquire about Ms. Degnan's complaint.  The Bureau's 
> action - or inaction - in this case will further embolden broadcasters to 
> ignore the FCC's rules against indecent broadcasting, and in so doing, 
> encourage them to air material that is harmful to children.
>
> I sincerely hope the Commission will reevaluate its handling of indecency 
> complaints.  The indecency complaint process, as presently configured, 
> tilts sharply in favor of broadcasters and against members of the public 
> who wish to register an indecency complaint.  Surely there is a more 
> effective way of enforcing Congress's ban on indecent broadcasting while 
> affording all due fairness to broadcasters.  Making the complaint process 
> more accessible to the public would be good public policy and would more 
> faithfully comply with Congress's directives to the FCC regarding 
> broadcast indecency.
>
> ---
>
>
>
>
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