The Big Chill

On Tuesday, July 1, FMC and the Center for Creative Voices in Media filed an amici brief (amici means “advisers to the court who are not parties to the case”) with the Second Circuit Court of Appeals on the subject of the FCC’s current indecency policy. You can read the press release here and the brief here.

The filing takes the FCC to task for its vague and arbitrary indecency policy. The result has been a chilling effect on creativity on the public airwaves, due to broadcasters’ fears of getting fined for airing “offensive” content. For example, Ken Burns’ recent documentary, "The War," was aired in two different versions to satisfy PBS affiliates worried about possible FCC sanctions. Creators are left guessing what constitutes indecent material, which leads to self-censoring and ultimately deprives the public of access to a lot of great stuff.

The new FCC indecency policy forces broadcasters to favor blander, more homogenized content. No matter how you look at it, when these corporations only air so-called “safe” material, it sends ripple effects through American culture, which has historically benefited from a diversity of ideas and perspectives.

The FCC’s policy is now so arbitrary that even “middle-of-the-road” music that has received airplay for decades can possibly be considered indecent. Songs like John Mellencamp’s “Jack & Diane,” The Who’s “Who are You,” Pink Floyd’s “Money,” Lou Reed’s “Walk on the Wild Side” and Sheryl Crow’s “A Change Would Do You Good” have been reedited or removed from playlists.

We’re not alone in raising concerns about these indecency policies. In this case, the broadcasters were appealing an FCC decision finding that a 5 year old episode of "NYPD Blue" was indecent. Broadcasters are concerned about heavy fines – at the same time the FCC changed its indecency policy, new legislation passed to increase broadcaster fines tenfold, applied per incident and per station.

Addressing media consolidation provides a way to resolve these concerns without censoring content. The deregulation of radio and TV throughout the 1990s that facilitated today’s consolidated media landscape means that national owners have no idea about local communities’ sensitivities or how to respond to them. Basically, consolidation has led to the to the situation we’re currently in, where non-local owners are unresponsive to community concerns. Local owners of broadcast stations are much more inclined to understand the attitudes of the local community.

The FCC’s process for determining indecent material is suspect. Certain public groups have been using automated e-mail based systems to get their constituents to submit complaints to the FCC en masse. The majority of these grievances are from individuals who may not have even seen or heard the supposedly offensive material in question, and the complaints are largely form letters. The arbitrary nature of the FCC’s determination of what’s indecent means that the Commission decides what to take action on, based on criteria that nobody but them knows or understands.

This Ars Technica article also does a good job of explaining things, and FMC Executive Director, Ann Chaitovitz, also sums up the situation pretty well: “The public experience of innovative art enriches American culture,” she says. “These works — musical, visual or otherwise — may be deemed ‘edgy’ or even controversial, but they are not indecent. If the FCC continues its arbitrary approach to regulating protected expression on the airwaves, we will all lose.”

FMC will continue to follow this case through the Second Circuit Court of Appeals.