There are many people out there who are greatly troubled by the way the FCC "enforces" efforts against broadcast indecency -- with some even questioning whether or not it's even constitutional for the FCC to act as a public arbiter of indecency. It looks like the FCC has just hired one such person, in the form of Duke telco law professor Stuart Benjamin. Since I consider myself among those who question how indecency fines can fit with a First Amendment, this seems like a good thing -- but the reporting on it, at the link above, only focuses on the complaints about this hire. But the complaint comes from the Parents Television Council, whose main claim to fame is flooding the FCC with bogus complaints about "indecent" programming from people who didn't even see whatever it is they're complaining about. So you can understand why they might complain. If they lose the ability to create moral panics, it's harder to keep going.

Three years ago, we wrote about the "roller coaster" of indecency complaints to the FCC. Basically, there are very, very few indecency complaints, until one particular organization alerts its members to all complain at once. What's silly is that the FCC is often influenced by this, even though most of the people complaining never actually saw the TV content in question. What's even sillier is that the FCC apparently (very quietly) changed its process to make it easier for this group to stuff the ballots.

Let's start with constant FCC watcher, Matthew Lasar, who notes the latest roller coaster swing:

How come the latest stats, in this instance for the first quarter of this year, show the viewers relatively calm at 578 complaints in January, then 505 in February, followed by 179,997 in March?

179,997? Um, did we miss something? Did television really get that much more indecent in March? No worries. In these situations, we know what to do. We go over and check out the Parents Television Council's website. And sure enough, there's a plausible instigator--a PTC viewer action alert crusade against a March 8 episode of the animated comedy show the PTC just loves to hate, Fox TV's Family Guy.

Yes, Family Guy is apparently destroying the morals of America, and the FCC must do something. But even more troubling is just how PTC was able to get so many votes. You see, it didn't really like the way votes were counted in the past, so it pressured the FCC to change the way it counts to make it that much easier for PTC to stuff the ballot box in massive quantities to put extra pressure on the FCC to act. Adam Theirer explains the changes:

The FCC quietly and without major notice made two methodological changes to its tallying of broadcast indecency complaints in 2003 & 2004 that PTC requested:

• On July 1, 2003, the agency began tallying each computer-generated complaint sent to the FCC by any advocacy group as an individual complaint, rather than as one complaint as had been done previously. The advocacy group benefiting from that change had challenged the FCC to make the change by June 30th and boasted later that it was responsible for the FCC's redirection, citing reassurances of FCC commissioners.
• In the first quarter of 2004 -- the time when the Super Bowl incident with Janet Jackson occurred -- the FCC began counting complaints multiple times if the individual sent the complaint to more than one office within the FCC. This change, which had the capability of increasing by a factor of 5 or 6 or 7 the number of complaints recorded, was noted in a footnote of that quarter's FCC Quarterly Report. The footnote acknowledged that "[t]he reported counts may also include duplicate complaints or contacts..."

As I have made clear before, I have absolutely no problem with the PTC, or any other advocacy group exercising their First Amendment rights to petition their government and make their views known. What I do have a problem with -- a very big problem, in fact -- is when one group so disproportionately influences the process, especially by changing the way complaints are counted.

Even more troubling, Theirer notes, is that the FCC gave no public notice of these changes, hiding them in footnotes to reports after-the-fact (and wording the footnotes in confusing ways). And it's not like this was a change across the FCC -- it was specifically designed to further the political goals of the PTC:

More shockingly, as far as I can tell, the FCC only made these methodological changes for indecency complaints, not for any other category of complaints that the agency receives! Finally, and probably worst of all, these bogus numbers were then used by FCC officials and congressional lawmakers as supporting evidence for the supposed public outcry for more regulation of television and radio.

Regulatory capture in action. Hopefully, the new administration and the new FCC recognizes this and stops trying to have the government act as a censor for a small group of people offended that people don't know how to use the "change channel" or "power off" features on their televisions.

A significant part of FCC Chairman Kevin Martin's legacy will be the moves he made -- and tried to make -- to crack down on indecency while he was in power. The FCC went after TV broadcasters with much more vigor than under previous leaders, trying to impose big fines for "indecent" content, many of which got smacked down later by courts. Martin himself was a major advocate of a la carte cable plans, in which consumers could simply pay for individual channels, rather than bundles. This represented a significant change of tune for the FCC, which had previously held that a la carte plans would carry too much additional cost to be to consumers' benefit; Martin's interest was, presumably, the decency angle, using the threat of an a la carte mandate to get cable operators to offer so-called family tiers of inoffensive channels. Martin was unapologetic about this in a speech last week at the CES show, when he said he didn't have a problem with his actions to clean up TV, but added that he didn't believe broadband content should be regulated because it's not easily accessible to children, and because its "content you choose to select and pull down" rather than "content you push out".

Huh? This is the same Kevin Martin that wanted Congress to pass a law giving the FCC the ability to regulate decency on basic cable -- TV programming that people pay for and invite into their home. It's also the same guy that backed a quixotic plan to build a free nationwide wireless data network, complete with content filters. This is the sort of doublespeak that we've come to expect from Martin, and won't have us shedding too many tears if he's replaced before his term expires in 2011. Hopefully the next chair will be more interested in issues like competition and technology than in moral issues and buddying up to telcos.

Earlier this year, a court tossed out the FCC's fine on CBS for Janet Jackson's infamous Superbowl half time show "wardrobe malfunction." As the court noted, the FCC's reasoning for the fine showed an arbitrary decision that did not fit with any existing guidelines. However, it appears the FCC disagrees and is now appealing the ruling to the Supreme Court, saying that it was the court, not the FCC, that misapplied indecency rules. Of course, we're still wondering why this matters nearly five years after the incident.

The FCC has a pretty spotty record when it comes to dealing with indecency charges. Basically, it seems to randomly fine stations if it receives enough complaints, even if most of those complaints come from auto-generated scripts from people who didn't actually see the content at all. Of course, perhaps the most highly publicized case where the FCC got involved over what it found to be indecent content was the infamous Janet Jackson Super Bowl wardrobe malfunction. However a court has now ruled that, rather than a wardrobe malfunction, the real malfunction was by the FCC, which had changed its obscenity standards arbitrarily and with no explanation whatsoever in doling out fines over the incident. The court points out that the FCC is allowed to change its standards, but with an explanation and not so arbitrarily. In this case, though, it seemed clear that the response was politically motivated -- and the court has tossed out the fines.

Remember how Fox was simply refusing to pay an indecency fine issued by the FCC? Well, it appears that the FCC isn't too happy about that and has had the Justice Department file some lawsuits against the various Fox affiliates refusing to pay (it turns out a few affiliates did pay). Before filing the lawsuits, the FCC rejected Fox's appeal without comment, but merely by saying that Fox's appeal to the FCC was 14 pages too long and the company hadn't asked permission to exceed the limit. Fox called this response "offensive," apparently resisting the more hilarious option of calling it "indecent." In the meantime, it looks like Fox will have yet another indecency case to fight in court to go along with the Supreme Court case on indecency that also involves Fox.

With the Supreme Court already agreeing to review how the FCC determines indecency in a case involving Fox, it appears that Fox has taken a rather aggressive stance concerning a different case where it was fined: it's simply refusing to pay the fine. The FCC originally fined Fox $1.2 million for an episode of "Married by America" that apparently included clips of a stripper with the "naughty bits" pixelated out. After Fox appealed, the fine was reduced to $91,000, covering just the affiliates where complaints were lodged (which seems pretty weak, since reports have shown that indecency complaints are usually sent in by those who didn't even see the show in question, but were alerted to it by lobbying groups that are pushing for more regulation of TV content). Either way, Fox has simply decided not to pay the $91,000, while also asking the FCC to rethink the fine. Somehow, given Kevin Martin's focus on indecency issues, one doubts he'll play along with this. Perhaps Fox is just hoping that it can stall long enough for a new FCC commish to come into power.

Since Kevin Martin took over the FCC, one area where he's been especially active is in trying to get "indecent" material off television. However, so far, things haven't gone all that well. A recent fine only got the content in question much more attention, and there are serious questions about just how offended people really are by what the FCC calls indecent. Most of the complaints to the FCC seem to be generated by form letter campaigns, pushed by people who never actually saw the content in question (or only saw it afterwards on the web). Last summer, an appeals court smacked down some FCC fines after it pointed out that the FCC seemed rather "arbitrary and capricious" in doling out fines for "fleeting expletives." Since there seemed to be no actual rules on what the FCC considered indecent, the court found it difficult to see how the fines were constitutional. Not surprisingly, the ruling was appealed and the Supreme Court will now take up the issue in a case that could have a major impact on the FCC's ability to fine networks for broadcasting "fleeting expletives."