FCC Process Reform Cuts Indecency Backlog, Attorneys Say

The FCC largely clearing out pending Enforcement Bureau complaints that were holding up almost 700 license renewals bodes well for broadcasters trying to get deals done, said broadcast attorneys in interviews Friday. The cleared pending complaints, announced in a blog post on fcc.gov Thursday (CD Oct 10 p14), were likely nearly all invalid indecency complaints, said broadcast attorneys with clients among those receiving the 700 renewed licenses sent out last week. With the licenses renewed, the application process to have deals approved should become more streamlined for many stations, broadcast attorneys said. The application delays caused by such complaints “were far worse than any fine the FCC might levy,” said Pillsbury Winthrop broadcast attorney Scott Flick in a blog post (http://bit.ly/1rlHkVa) Thursday. The FCC didn’t comment on the nature of the cleared pending complaints.

Indecency complaints are the likely culprit because they are so prevalent, and are often invalid, said broadcast attorneys. Complaints often concern issues that don’t violate FCC indecency rules, or are incorrectly filed against the wrong station or cable operators, said Drinker Biddle broadcast attorney Howard Liberman. They're also ubiquitous, afflicting many stations Flick told us. “It’s very rare to have a network TV station that doesn’t have a pending indecency complaint against it.” The Enforcement Bureau identified matters where the indecency complaints that had been filed were not actionable or unlikely to result in an enforcement action that could survive a legal challenge and then lifted holds associated with them, said a Media Bureau official.

To determine if a complaint is invalid, the FCC has to investigate. If many similar complaints are invalid, it can be a quick process to eliminate them, and because many complaints often stem from the same supposedly incident broadcast on TV, whole reams of complaints can be quickly found to be invalid. However, the FCC has long allowed such complaints to pile up because of staffing issues and First Amendment concerns, said the attorneys. Past FCCs didn’t prioritize such complaints as much as this commission has, Liberman said. “It’s really about time someone made an effort to clear it up,” said Davis Wright First Amendment attorney Robert Corn-Revere.

Many TV license renewals had been held up because the Enforcement Bureau hadn’t finished indecency investigations against stations, with 951 awaiting renewals for those and other reasons, according to our review of FCC data in May (CD May 15 p8). Friday, that number had fallen 19 percent to 773, according to the Media Bureau’s Consolidated Database System.

The commission doesn’t like to approve deals if stations have outstanding holds, making the complaints a problem for broadcasters looking to get involved in transactions, said Liberman. A 2005 complaint held up renewal for one of his clients, he said. Flick had clients with holds that persisted through multiple renewal cycles, and so were issued double renewals last week, he told us. Though workarounds like tolling agreements have allowed the completion of deals even with indecency holds, they're not ideal, the attorneys said.

Several broadcast attorneys said organizations like the Parents Television Council were responsible for the ubiquity of invalid indecency complaints. But PTC Director-Public Policy Dan Isset said he sees no problem with the FCC purging incorrect complaints. By clearing the backlog, the commission is freeing itself to take up legitimate indecency complaints, he said. The commission hasn’t issued a forfeiture for indecency since 2008, and every commissioner told Congress during his or her confirmation process that he or she would take up the issue of indecency, Isset said.

Even before last week’s Media Bureau grant of 700 license renewals, fewer viewers had been complaining to the FCC about alleged indecency since high-profile incidents like Janet Jackson’s 2004 brief breast baring during the Super Bowl half-time show (CD May 18 p5). The number of indecency complaints pending against commercial TV stations -- by far the category facing the most number of complaints among all types of radio and TV broadcasters -- fell 75 percent from June 2012 to 370,257 this past May, according to data released by the FCC to Communications Daily’s publisher under the Freedom of Information Act (http://www.warren-news.com/commdailynews/indecencyFOIA.pdf) (http://www.warren-news.com/From%20FOIA%20Response%202014-493.pdf). Commission officials didn’t provide updated figures Friday.