On Monday, July 22, the New Hampshire Association of Broadcasters joined with 45 other State Broadcasters Associations in filing Joint Reply Comments in the FCC’s Indecency Proceeding. Our approach was to identify for the Commission specific actions that we believe it should take immediately to extricate itself from continuing to infringe the First Amendment rights of broadcasters in the area of indecency. Specifically, we are urging the FCC to promptly issue one or more orders which:
(i) Declare that it will no longer undertake enforcement action against any broadcast station, based on a pending or future complaint, that the station aired either a fleeting expletive as a remark or gesture (including “profanities”), isolated nudity or mere suggestion of sexual activity, or any type of sound and/or image that is alleged to be indecent and that was broadcast during, including but not limited to, a live or taped newscast, interview, documentary, public affairs, sports or entertainment programming;
(ii) Dismiss all pending complaints that would not be enforceable under Proposal #1 above, giving priority to the dismissal of complaints that are holding up the processing of assignment and/or transfer of control applications, then to those complaints that are holding up the processing of renewal applications, then to those complaints that are the subject of current indemnification and/or escrow agreements with the FCC, and so on;
(iii) Declare that any specific program material that is alleged to be indecent, in any complaint that is not eligible for dismissal under Proposal #1 above, will be evaluated on the public record during the course of this proceeding, but solely (no enforcement action contemplated) for this important but limited purpose: the FCC will use the program material that is alleged in such complaints to discuss, on the public record and with the opportunity for public comment, how it might rule taking into consideration various presented or assumed facts and factors. The overarching purpose of that “discussion” is to determine whether the Commission will be able, as a matter of law, to provide broadcasters and the public with a clear, consistent, predictable, and otherwise lawful, understanding of what broadcast material in the future will be deemed legally actionable and what broadcast material will not be considered legally actionable, consistent with the limitations contemplated under Proposal #1 above
(iv) Modify the FCC’s online complaint form by removing the reference to “profanity” and adding a “personal knowledge/willful false statement” certification to the form (to insure listener/viewer personal accountability);
(v) Declare that the Commission will take either of the two following actions within 30 days of receipt of an obscenity/indecency complain: (a) dismiss the complaint if (1) it was not filed using the FCC’s online form or the equivalent, (2) does not contain all of the information required by the form or (3) is not prima facie actionable under the narrower focus set forth in Proposal 1# above or (b) forward the complaint to the affected station for a response;
(vi) Declare that a station receiving an indecency complaint from the FCC will have 30 days to respond and the FCC will have 120 days from the receipt of the station’s response to issue a decision; and
(vii) Declare the establish of new procedures that will improve the fairness, transparency and speed of its processes where the placement of an “enforcement hold” on the processing of a pending application may be warranted, including limiting the amount of the funds to be escrowed and reducing from to one year the deadline by which funds must be released if the FCC has not taken action on the complaint that was the cause of the “enforcement hold.”