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FCC's Adelstein Discusses Crackdown

Federal Communications Commissioner Jonathan Adelstein was appointed to his post in 2002. Previously, he was senior legislative aide to Sen. Tom Daschle.

21:56

Other segments from the episode on September 7, 2006

Fresh Air with Terry Gross, September 7, 2006: Interview with Louis Wiley; Interview with Jonathan Adelstein; Interview with Stephen Weiswasser; Interview with Tim Winter.

Transcript

DATE September 7, 2006 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Louis Wiley, executive editor of PBS' "Frontline,"
discusses the effect of the recent FCC rulings on broadcasters
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

Lately at FRESH AIR, we've been making a lot of calls to our lawyer, seeking
guidance over whether film clips, lyrics, and things our guests have said
might be considered indecent by the FCC. The agency has, of late, been more
aggressive in investigating allegations of indecency and profanity, and has
raised its fines tenfold to $325,000 per utterance. Last March, the FCC
leveled fines against stations for broadcasting nine programs, including CBS'
"Without a Trace," ABC's "NYPD Blue," and a PBS documentary about the blues.
Many broadcasters are confused about what the FCC now considers indecent and
say the fines are having a chilling effect.

We'll be talking to four people today, including an FCC commissioner. Let's
start with Louis Wiley, executive editor of the PBS documentary series
"Frontline." He'll explain how his show has been affected by recent FCC
decisions.

Louis Wiley, welcome to FRESH AIR. What are the recent FCC precedents that
are affecting you in your work?

Mr. LOUIS WILEY: Well, the clearest one, of course, was the Bono decision.
Back in the winter of 2005, we were preparing a company of soldiers, and in
one scene there was an explosion and the soldiers used the F-word numerous
times. In that scene, I think there were six uses. Well, the commission had
just decided that the F-word was presumably indecent, and we faced the problem
that, under the rules at the time, the use of that word could've resulted in
$32,500 each time the word was used as the maximum fine, and if you teased it
out it would've come to $195,000 per station times the number of stations for
a grand total of $35.1 million. Now, nobody at "Frontline" thought that there
would even be complaints about the use of the F-word in a battle situation in
Iraq, but the lawyers and the executives who run the station have to be very
concerned because they expose themselves to some liability.

GROSS: Now, were you confident that if there was a complaint that the FCC
would rule against you and fine you for that scene?

Mr. WILEY: We weren't absolutely sure. They had not yet ruled on the case
of, say, "Saving Private Ryan," which was a movie in which these words were
used. They later ruled that "Saving Private Ryan" could be broadcast with the
words included, so we then took it that if it was good enough for a movie,
that we were probably protected in a documentary about the real thing.

So the next line of questioning would be, well, could a soldier recalling a
battle later, using the F-word, would that be permitted? And our colleagues
at American Experience in "Two Days in October" decided to take that risk, in
which a soldier recalls a situation in Vietnam, but it's not clear if there
should be a complaint, how the commission would rule in that case.

And I think we're going to face this, as a system, when Ken Burns does his
work this fall on World War II. And the question will be if he includes
soldiers recalling their experience what are the parameters of language that
would be permitted?

GROSS: You said that recent FCC decisions on indecency are leading to
self-censorship, but that self-censorship has become an indirect form of
government censorship. What do you mean?

Mr. WILEY: Well, the government cannot come into our editing rooms and say,
you know, what exactly we can use or what must be cut out. That would be
direct censorship. The First Amendment would certainly not permit that. But
I believe that this is, in fact, a form of indirect government censorship
because they're getting us to do their work. They're using the tool of the
fear of these draconian fines to get us to step back from material that might
be very valuable to a story, so I am concerned about what I would call maybe
censorship by indirection, which is what is happening, in my view.

GROSS: Are there times when you have to make a decision about language or
content on "Frontline" and you're just not sure and your lawyers aren't sure
either whether the FCC would think that this was indecent?

Mr. WILEY: Well, I think there's a problem even prior to just FCC concerns
that bothers me. I think producers are going to get the message very quickly
that this is a problem area. They usually shoot 10-to-1 ratio; there's lots
of material. And I am afraid the instinct is going to be to leave the
problems on the cutting-room floor. I don't think--I may not even know about
it. Certainly the viewers may not know about it, how much a film might have
been affected by the early cut that filmmakers make, the rough cut. There
could be very powerful material that will never make it because, in their
mind, the atmosphere's one of self-censorship. So I think there's real danger
here, that a lot of our powerful drama, history and public affairs
documentaries will be dimmed. They certainly won't be destroyed, but they
will be dimmed, and that's why I'm concerned about the application to the work
we do.

GROSS: I want to ask you to describe a difficult decision you had to make
about the use of a word that starts with the letter P, and this is a word that
could be used to describe a cat, it could be used as a slang word to describe
a woman's genitals, and it could also be used as a slang word for somebody
who's just a wimp. So tell us what the situation was and how you made your
decision about whether to keep in this P-word or not.

Mr. WILEY: There are endless lists of words that can cause you to think hard
about what might happen if you use them. In the week after the program about
the company of soldiers in Iraq, we broadcast a program called "The Soldier's
Heart." And "The Soldier's Heart" was about a number of soldiers in Iraq
who've had to seek medical counseling for psychological problems. And one
veteran was talking to us about how it's very difficult for them to come
forward. And he said the reason it's very difficult--he gave a very clear
case, he said the reason is very difficult because, in this particular case, a
soldier wanted to seek help and his commanding officer called him a particular
name, and then he said he called him the F-word with I-N-G on it, and then the
P-word that you just mentioned. And we decided to bleep the F-word, because
we had just put "Company of Soldiers" on, and we didn't want to ask the
stations to stand up again. But, as you will readily understand, the P-word
was all about the definition of weakness, of being a coward, and that was the
context it was used in. It was very powerful. If we had bleeped that word,
you would have no idea--no idea--of the power of the word's use. And so we
left it in.

But I can tell you now--and this is the one that I'm sure will come before the
commission before long--there has been a complaint about it. There has been a
complaint about it despite its very clear context as a coward or unmanliness.
So these are the difficulties we face, you know, and sometimes it can be
hilarious. We broadcast a program called "Country Boys." That ran from 9 to
11 over three nights, six hours of programming. Because 9 to 10 is outside of
safe harbor, these young teenagers who use cuss words--I mean, this is part of
being a teenager. We didn't let them use them between 9 and 10, but then
between 10 and 11, it was OK. But trying to figure out just where we were
going to come down in each of these cases could sometimes create bizarre
results.

GROSS: Right, and 9 and 10--the difference between 9 and 10 and 10 and 11 is
that the FCC considers any time after 10 to be more of a, quote, "safe harbor"
because children, theoretically, are in bed after 10:00.

Mr. WILEY: Yeah.

GROSS: So you're in the position of sometimes having to make decision that
seem ridiculous to you?

Mr. WILEY: Well, I--not only me, but our colleagues. I mean, take, for
example, in "Masterpiece Theater" in "Prime Suspect," Helen Mirren, in one
episode, she's furious, she comes out of a scene inside and she gets into her
car, she slams the door, and she's very angry, and she says the F-word six
times. Now you see her lips moving, but you don't hear it. So is that a
violation? Can you leave that in? It's a word that is very integral to the
scene. She's angry. So we decided to broadcast that. That was broadcast,
and there were no complaints. But we don't know what would happen in a
different situation or the next time.

"Antiques Roadshow" had a nude photograph of Marilyn Monroe, a rare
photograph--an early one. This was a picture that was valued at $20,000. It
was certainly appropriate editorial choice for that series, but I can tell
you, there was a lot of thinking about how much of it we can show and whether
we should show it all. So eventually we did show it, and so far there have
been no complaints, but that program is repeated a lot of times by stations
around the country, and I wouldn't be surprised if it generated a complaint at
some future point in time.

So it isn't just "Frontline," it's our drama series, it's our cultural
programs, it's the history series. We're all under the same gun.

GROSS: Louis Wiley, thank you very much for talking with us.

Mr. WILEY: Thank you, Terry.

GROSS: Louis Wiley is the executive editor of the PBS documentary series
"Frontline." Coming up, we talk with FCC commissioner Jonathan Adelstein.
This is FRESH AIR.

(Announcements)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Jonathan Adelstein, an FCC commissioner, discusses the
problems in setting and enforcing decency standards
TERRY GROSS, host:

We're talking about the impact of the FCC's increasingly strict enforcement of
its indecency standards. Many broadcasters say the FCC's rulings have been
unclear and inconsistent and are leading to self-censorship.

My next guest is Jonathan Adelstein, who has been an FCC commissioner since
December 2002. He was previously a senior legislative aide to Senate Majority
Leader Tom Daschle.

Commissioner Adelstein, welcome to FRESH AIR.

Mr. JONATHAN ADELSTEIN: Thanks for having me, Terry.

GROSS: A lot of broadcasters I know are unclear about what the FCC considers
acceptable and what they risk getting fined for. So let me just ask you how
the recent FCC decisions have changed the standards of indecency and
profanity.

Mr. ADELSTEIN: Well, it's understandable that there is a lot of confusion
about what the rules say. It really depends on the context, and we don't give
advance notice about what is or isn't appropriate, because the law actually
prohibits us from engaging in censorship, and prior restraint like that would
be tantamount to censorship. And so people have to kind of guess, and because
we've strengthened our enforcement in recent years, I think there's been a lot
of resulting confusion.

GROSS: Yeah, no, the F-word decision was one of the best-known of the recent
FCC decisions, and this was pertaining to Bono at the Golden Globe Awards
ceremony. And he had said that something was f-ing brilliant. And originally
the FCC's staff had said that f-ing in that context was OK because it was an
adjective that meant, in that context, incredibly. Like that was incredibly
brilliant, or very brilliant. But then the FCC commissioners overruled the
staff and said, no, that word is--what?--inherently indecent?

Mr. ADELSTEIN: It's not inherently indecent. There actually is a contextual
analysis that we do. I think that there's a lot of questions about that
because it was a departure from some previous policy that broadcasters
perceived. Particularly in the case of a fleeting incident like that, we've
always held that fleeting examples of things like that should be looked at
differently than something that was intentional or could've been more easily
prevented. The result, of course, of that is that people are using technology
to try to block various words in advance. One of the other things that we
used that was new was profanity analysis. Never before had the FCC held
anything to be profane, but there was a new type of analysis done saying
certain words are profane, and that is something that is subject to some
confusion, as well, as to what to what the words are. Because there's
variants on these various words that people don't know when or where they can
or can't say it. So I thought that, given all of the vast outcry about our
decision in that case, there was a lot of request for us to reconsider the
decision, and that wasn't done before we moved on and found all kinds of other
words to be inherently indecent or profane.

As a matter of fact, one of the problems with it is that we find these words
to be inherently sexual or excretory, which is kind of strange in some cases,
because the clear intent of the speaker isn't that. I mean, and I don't like
to get into all of these words on the air, but some of these words, for
example, that might represent the excrement of a bull, aren't necessarily
excretory when they're said; they're meant to be and tend to be somebody who's
dissembling as opposed to something that would be inherently excretory. So
these--we get ourselves into a bit of a cul-de-sac when we get into that kind
of an analysis, and right now we're deep in one and there's all kinds of
confusion resulting in litigation, people not knowing what they can and can't
say on the air, and we have, to date, not been willing to reconsider that.
The chairman hasn't brought that to a vote before the commission, so we're
still kind of leaving it out there.

GROSS: Now, the FCC recently said that "Saving Private Ryan" could be played
on broadcast TV uncut because removing the expletives would have diminished
the realism of the story. So can we assume those expletives in Steven
Spielberg's war movie are also OK in documentaries about war?

Mr. ADELSTEIN: That's a great question. There seems to be a lot of
confusion about that, because we held in a documentary about the blues that it
wasn't OK to use certain words, and yet in "Saving Private Ryan," which is a
dramatic rendition of a war, we said it was OK. Now we're getting questions
about a World War II documentary by Ken Burns, which uses, of course, original
footage that contains expletives as you might expect to hear from soldiers in
the midst of a war. So if it's not OK in the blues, is it OK in a war movie
if it's a real depiction of events that we said were OK in a dramatic
depiction by Steven Spielberg?

I think we're really tying ourselves in knots here, and that's a great example
of the difficulty that we're putting broadcasters under. And there's a lot of
uncertainty out there. Some people are saying they don't want to air it
during hours when children may be listening. I think, generally speaking,
that in the context of that kind of situation, if it was OK in "Saving Private
Ryan," I haven't heard the exact details, but it may be OK in the context of a
documentary, but I can't say that that's the case for the majority of my
colleagues who held that, in another documentary, such types of language were
offensive and inappropriate and held to be indecent and profane.

GROSS: Well, let me just bring up another twist in this story. Say it's a
documentary and veterans are talking about prior experiences during war and
using expletives, not in battle, but in discussing battle. You know, how
would that be? I guess, your answer would be, `Who knows? No one knows right
now.'

Mr. ADELSTEIN: No one knows. I mean, we need to look at the context of each
one of these types of events, and, of course, I think that we need to look at
the context in terms of documentaries and news being in a separate category.

GROSS: Well, let me ask an obvious question. If you, an FCC commissioner,
don't know the answer to those questions, how is a broadcaster supposed to put
together a show, whether it's a fiction show or a documentary about war? I
mean, if we don't know what the standards are, and we risk getting enormous
fines, how are we supposed to produce a show on these things?

Mr. ADELSTEIN: I think it was a lot easier before we started playing around
with the standards as to words. I think we've got ourselves now in a bit of a
conundrum, where there is a confusion about `Is it OK in a war documentary but
not a war drama? Is it OK in a blues documentary but not a war documentary?
Is it OK in a 9/11 documentary, because it's politically correct to talk about
those words on 9/11, but it's not OK in the context of a blues documentary?' I
don't think the standard should change. That's why I dissented from the part
of the decision that held the blues documentary to be indecent, because can we
decide what documentaries merit the use of certain words and which ones don't?
Is it just what three of the five of the commissioners on the FCC think? I
think we need to have standards in place that are clear and that provide
guidance to people about what is and isn't appropriate, and I think, in the
context of these documentaries, that that is something we need to make clear
as a greater burden for us to find something to be impermissable.

GROSS: You're saying that the FCC has been tying itself in knots over these
decisions and that now we have a set of very unclear standards. So how did we
get into this predicament? Why is this happening?

Mr. ADELSTEIN: What really started down us this difficult road, I think, was
the decision in the Bono case, the Golden Globes case, where we found a
fleeting use of the F-word to be indecent and profane. Ever since that time,
there's been the whole vocabulary that we have to go down now to figure out
what people can and can't say. Now, nobody wants their children exposed to
these kind of words on the air. I think we need to make a major effort, as
families, to keep our kids from using these kinds of words. We don't want to
be exposed to it on the air and taken by surprise, and certainly it's
inappropriate for broadcasters to be using these types of words. Question is
whether or not, in a fleeting case like that, it actually rises to the level
of indecency to the extent that we can fine a station for using it.

We promised the Supreme Court in the Pacifica Case, when the FCC council went
in front of the Court, that we would show great restraint and walk along a
tightrope to make sure that we didn't overstep our bounds...

GROSS: Let me just interrupt you and say this is the famous George Carlin
seven dirty words that you can't say on television case.

Mr. ADELSTEIN: That's right.

GROSS: Yeah, go ahead.

Mr. ADELSTEIN: We said at the time that we would show great restraint in
exercising the power we have, and in particular, these fleeting examples would
be something that we would try to not come down so hard on, and now we've
really changed that. And the problem is, that was a decision in Pacifica that
was a 4-to-5 decision. We were only upheld by one vote. So we're barely in a
position to maintain our authority. If we make a mistake and we overstep our
bounds, the problem could be that we could forever lose our authority to
restrict the broadcast of what we consider to be indecent material over the
airwaves.

GROSS: Well let me say that there are four networks that are appealing the
decisions that the FCC made in March. So are you suggesting that if these
networks win in that appeal that the FCC will lose its authority? Or some of
its authority?

Mr. ADELSTEIN: It's really a roll of the dice when you go in front of a
court with a difficult case like we've made for ourselves. If we're
overturned by the court, we don't know what the implications could be. It's
very possible that they could constrain our authorities in ways that are
broader than we currently envision. So it's a dangerous thing. We need to
exercise our authority with great restraint, if for no other reason than to
protect our ability to prevent children from hearing material that's indecent.

GROSS: Jonathan Adelstein has been an FCC commissioner since 2002. He'll be
back in the second half of the show. I'm Terry Gross and this is FRESH AIR.

(Announcements)

GROSS: Coming up, we continue our interview with FCC commissioner Jonathan
Adelstein. We'll talk with a lawyer who advises broadcast stations and hear
from the president-elect of the Parents Television Council, which has filed
many complaints with the FCC about indecency.

(Announcements)

GROSS: This is FRESH AIR. I'm Terry Gross.

We're talking about the FCC's increasingly strict enforcement of its indecency
standards, and why many broadcasters say the FCC's recent rulings are
inconsistent and confusing and are having a chilling effect. Let's pick up
where we left off, with Jonathan Adelstein. He's been an FCC commissioner
since 2002.

Let me express another concern that I think many broadcasters share, and that
is, when you're operating with guidelines that are ambiguous, as most
broadcasters feel is the case now, if you're in doubt about anything, you
almost always have to err on the side of not saying it or not including it in
the program, because the fines are so steep and the guidelines so vague and
confusing. You know, the risks are so great if you're ruled against that you
can't afford to take that risk. So what a lot of broadcasters are saying is
they're forced to follow a kind of extreme form of self-censorship.

Mr. ADELSTEIN: I am afraid that we're seeing something of a chilling effect
on free speech as the outcome of some of our more dangerous decisions that
we've made in this area. I understand why broadcasters want to be very
careful and cautious, and we want them to be careful and cautious. When I
first got to the commission, it was virtually anything goes. There was very
little enforcement of our indecency rules, and I felt that, as somebody sworn
to uphold the law, I was in charge of making sure that we did step up and
enforce those rules, and everybody, I think, applauded those initial steps
that we took. But, more recently, I think we're starting to get off track
where we're really coming down hard on things that are fleeting or that are in
the context of a documentary that is creating a lot of confusion and perhaps
maybe having a chilling effect on what is otherwise constitutionally-protected
free speech.

GROSS: Do you think the public and broadcasters can be confident that the FCC
commissioners are basing their ruling on something larger than their personal
tastes and what is acceptable and unacceptable?

Mr. ADELSTEIN: That's a good question. I mean, we're really--I'm not sure
if they do. I mean, ultimately, what becomes indecent is what three of the
five of us say is indecent. A good test case for that is we recently had a
number of complaints about a comment by the president of the United States
that was broadcast, I believe, over NPR. And a number of people complained
that that was broadcast on the air. It was the S-word, and let's see whether
or not people who say that you can't use that word in the context of a blues
documentary say it's OK if the president says it. I personally think it was
OK in the blues documentary because it was in the context of a piece like
that. I think that this was newsworthy, in terms of what was said by the
president, so is there a double standard here or not? I mean, are we going to
be consistent? It's a good question, and that would be a good test case to
see whether or not there is that kind of consistency or whether it depends on
taste of the commissioners.

GROSS: Give us an example, if you could, of a time when you think the FCC
approach to regulating indecency worked best. A decision that you're really
proud of, either that you were part of or that your predecessors were
responsible for.

Mr. ADELSTEIN: Well, there's a number of cases of material that just sort of
really went over the line that we've been involved in. I mean, the Super Bowl
is a good example. I think that parents were watching the Super Bowl, and
they weren't expecting sort of a display that they ended up getting in that
halftime entertainment portion.

When parents are sitting around with their kids, as I was, and they're trying
to watch something like that, it really takes them by surprise when they're
exposed to that kind of a strange and, you know, inappropriate display.
People have to know that there is a safe area, that we're watching television,
and they don't have to basically jump in front of the TV and protect their
kids from seeing things that they don't think should be broadcast in front of
them. So, on a big family show like that broadcast in front of tens of
millions of people, hundreds of millions around the world, we would hope that
would be better taste displayed.

GROSS: Now, you know, a lot of people have pointed out that it was the Janet
Jackson thing that was objected to, but, at the same time, the Super Bowl was
filled with ads for male potency drugs, and, you know, a child was at least as
likely to ask, `Mom, what's that drug for?' So what's the difference between,
you know, this like split-second revealing of Janet Jackson's breast and, you
know, a lot of 30- and 60-second commercials that have to do with, you know,
male sexual arousal and potency and so on?

Mr. ADELSTEIN: There's also a commercial for a horror movie that had this
really scary creature flying out of the screen right at my children. I
practically had to jump out of my seat and get between my screen and the kids
so that they wouldn't have nightmares that night and I'd be kept up that
night. I mean, what are broadcasters thinking putting that kind of violent
material on the air during a family program when they know that a lot of kids
are watching?

So there's all kinds of inappropriate material on television that doesn't
necessarily rise to the level of indecency. We have a very constrained
ability to act on what is actually indecent.

GROSS: The FCC wants to change its mind about a decision, or several
decisions, that it made, and it told that to an appeals court in which an FCC
decision is being appealed. Can you explain that?

Mr. ADELSTEIN: The FCC general council actually asked a court to give back
to us something that was being appealed by broadcasters. We'd found several
words to be indecent, but we didn't fine the stations because they were
uttered before we changed the policy to make those words impermissable. So
the broadcasters found they could take this right to court. And all of a
sudden, when we learned we could be exposed to a quick legal decision on these
things and we were somewhat exposed to it, we asked the courts to send it back
to us rather than ruling on it so we could reconsider the decision. But the
irony of that is that, all along, we've had the same exact issue pending
before us in the Golden Globes case, where we've been asked for two and a half
years to reconsider that case, and we haven't done so. So we're in the
embarrassing position of asking a court to send back to us something to us to
reconsider, which we just did, when we're actually not even willing to
reconsider something we've been asked to reconsider for two and a half years.
So you can see that we're tying ourselves in legal knots here, and I think
we're trying to avoid court scrutiny because of the difficult position we've
put ourselves in.

GROSS: So are you saying the FCC is afraid that if the appeals court rules
against the FCC that the FCC would lose authority, therefore the FCC said
`Wait a minute, we want to reconsider our decision'?

Mr. ADELSTEIN: Ostensibly, we've asked the courts to give this back so that
we can give due process to broadcasters who weren't given an opportunity to
respond before. But if, in fact, we wanted to really reconsider a decision,
which is what the general council told the court we wanted to do, we could do
that without having to send these things back to us, because we've had
something pending before us for two and a half years that we haven't
reconsidered on the Bono case. So it's certainly got to raise questions in
peoples' minds about what our true motives are here and whether or not we're
just sort of playing games to avoid legal peril.

GROSS: There is screening technology now that can enable parents to screen
out programs they don't want their children to see. Should the availability
of that technology change the FCC's approach to regulating indecency?

Mr. ADELSTEIN: Well, already the courts have held that because we're dealing
with constitutionally-protected speech, we have to use the least restrictive
means possible to prevent children from being inappropriately exposed to this
kind of material. That means, for example, that cable is outside of our reach
and satellite is outside of our reach, because this is something that parents
are actually paying for and inviting into their home, and these technologies
do enable parents to block a channel or a particular set of programming,
depending, that they might think is inappropriate for their children.

So less restrictive means then the government's saying, this can be prevented
for everybody is for a parent to be able to take control within their own home
and say that `I'm going to protect my children by either not subscribing or
putting some kind of a filter on.' When it comes to broadcasts, the courts
have held it's different because it's so pervasive. There's a billion radios
out there. TVs are everywhere, and you can't necessarily block it. These
decisions were made, of course, before the days of the V-chip, but there still
are televisions without V-chips out there. So I think for the time being, it
does appear that we're going to have authority over broadcast as long as we
don't overstep our bounds and find ourselves really circumscribed by the
courts.

GROSS: Well, Commissioner Adelstein, thank you very much for talking with us.

Mr. ADELSTEIN: Well, thanks for having me, Terry.

GROSS: Jonathan Adelstein has been an FCC commissioner since 2002. We
recorded our interview yesterday. Today the US Court of Appeals granted the
FCC request that Commissioner Adelstein was just discussing, to reconsider its
decisions on four cases pertaining to profanity.

Coming up, Steven Weiswasser, a lawyer who advises broadcast stations. This
is FRESH AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Stephen Weiswasser, lawyer who advises broadcast
stations, discusses difficulties of understanding FCC standards,
practices and rulings
TERRY GROSS, host:

We're talking about the impact of the FCC's increasingly strict enforcement of
its indecency standards. Many broadcasters say the FCC's rulings have been
unclear and inconsistent and are leading to self-censorship.

My guest, Stephen Weiswasser, is a lawyer who advises broadcast stations.
He's the former general counsel for the parent company of ABC TV. Its
Standards and Practices Department reported to him.

Stephen Weiswasser, welcome to FRESH AIR.

Mr. STEPHEN WEISWASSER: Hi, Terry.

GROSS: Can you give us a typical question you are asked now, in light of the
most recent FCC decisions?

Mr. WEISWASSER: Yeah.

GROSS: A typical question you're asked by the broadcast stations that you
represent about whether they can or can't say or show something.

Mr. WEISWASSER: A lot of lawyers today are hearing from clients who are CBS
affiliates, for example, with respect to the carriage of a documentary on
9/11, which has been on the air twice before and which is slated to be on
right around the anniversary of 9/11, in which firefighters and others--and
this is the only footage available of the actual crashing of an airplane into
one of the Trade Center towers--and there are reactions from people, some of
which contain language which, in other contexts, the FCC has said might
constitute indecent language. And they're saying, `What do we do? Do we move
this program to the so-called safe haven after 10:00? Do we run it because
this program is honest-to-goodness journalism and unique and a reminder of the
intensity and importance of 9/11? Or do we not? Do we pass on it on the
ground that life is short and we don't want, can't afford, shouldn't have to
face, major litigation with the FCC in courts and fines that are capable of
running well into the hundreds of thousands, depending on how the number of
expletives is counted and whether they're all found to be indecent and so on?'

GROSS: How have the recent FCC decisions changed the parameters, as far as
you're concerned, about what's indecent and what's profane?

Mr. WEISWASSER: The recent decisions--the ones that go back to the
spring--have pushed the definitions way beyond where they were before. They
have reached into material which isn't, for example, explicit, but is merely
suggestive and have labeled such material indecent and fined broadcasters or
attempted to fine broadcasters who have run it. And because the cases
themselves seem inconsistent and are inconsistent without explanation, they
have made it much more difficult for broadcasters conscientiously trying to do
the right thing even to know what it is that the FCC will or won't consider to
be indecent. There's no predictability in what the commission is now doing
that permits anybody to make a judgment with respect to what can be broadcast
that will or won't pass muster.

GROSS: The four major broadcast networks are appealing the March 15th FCC
rulings. On what grounds are they appealing?

Mr. WEISWASSER: A number of different grounds. They are appealing--in part,
they're appealing the inconsistency, the lack of standards, the lack of notice
and opportunity to comment on them, and they're raising constitutional issues
with respect to the degree to which the commission is intruding in the process
of creation of content and broadcast of content. And I think that all of
those arguments are very serious and important ones.

GROSS: What do you think the odds are that the court will rule in their
favor?

Mr. WEISWASSER: Well, I think that the cases before the court now and the
cases where the commission issued decisions in the spring reflect, candidly,
such a nonrational process of decision making that the commission will lose,
necessarily, all or most of them. Not even because the commission doesn't
have the authority to work in this area or to make decisions in this area, but
because the decisions make no internal consistent sense and cannot be
justified by either under the Constitution or the very standard it's trying to
apply.

Of course, I'm an optimist, and I'm an optimist and I'm an advocate. A lot of
those cases are going to be struck down and sent back or dismissed. And I
don't think--and I think this is an important point that people don't
necessarily get--and that is, I'm not sure that this means that there's no
room for a rational indecency policy. Broadcasters do have special
responsibilities because the medium is pervasive, and there may be, every once
in a while, a circumstance in which it is appropriate for the FCC to worry
about content that is excessive and is presented for purposes of titillation
or pandering to an audience. But it is way past that now and has moved into
areas where it shouldn't, and it needs, in my opinion, to go back and rethink
the standard that it uses to decide these cases.

GROSS: If the broadcast networks appealing the FCC decisions win, what would
the implications be for the FCC?

Mr. WEISWASSER: Assuming that they--we don't have a court decision which
strikes down the entirety of the regulatory process here, I think what it
would say to the commission is that it simply must go back and rethink the
reason for regulation of indecent content and the standard it is using to do
that with.

Let me give you an example of what I'm talking about here. I mean, the
commission, the FCC, is basically saying that it is free to--it is required to
regulate material that is patently offensive--not a clear statement all by
itself--when measured against contemporary community standards for the
broadcast medium. Well, those are not self-defining words. They have to have
a meaning. All we know for sure is that the commission has said that it
doesn't take account of differences between audiences in different parts of
the country, that it therefore is a national standard. But it clearly implies
that it has to be offensive to a significant chunk of the audience; it has to
be material that is not within standards that most people accept for
broadcasting. But it hasn't done any quantitative analysis or research that
would say what it is that the American people find acceptable or not
acceptable. And so what we are left with is the uncomfortable circumstance
that five commissioners--basically relying on their relationships with the
people they know, and maybe with each other--are simply saying, `This is OK
and that is not, and, in this context, the S-word is OK, but in that context,
it's not,' and making distinctions that, candidly, just don't make any sense.

GROSS: The FCC commissioners are presidential appointees who are confirmed by
Congress.

Mr. WEISWASSER: Yes.

GROSS: Is the FCC, in your opinion, politicized? And does the FCC, in your
opinion, represent fairly the cultural divisions within America now?

Mr. WEISWASSER: Well, I rather think of it differently. The process of
deciding what's indecent or not has become politicized. I'm not saying that
the commission is politicized. I think, in fact, that the commission may be
trying conscientiously to do the job that it thinks it's required to do under
the Communications Act. I just don't think it has done it right.

But what we have is a highly political process in which a relatively small
number of people, represented by a couple of activist groups, are generating
thousands and thousands of complaints about particular programs that use words
that those groups don't like or that have scenes in them that those groups
don't like. And they have politicized the process by doing that. Now, of
course, everybody has a right to petition the government for redress of
grievances they have against the government or others, but that does not mean
that the interests of the rest of the country, who are not complaining and who
are watching the programming that is being complained about, shouldn't be
taken into account in the decision process.

GROSS: Stephen Weiswasser, thank you very much for talking with us.

Mr. WEISWASSER: Thank you.

GROSS: Stephen Weiswasser is a partner in the law firm of Covington & Burling
in Washington, DC.

Coming up, the president-elect of the Parents Television Council, which has
filed complaints with the FCC about indecency in broadcast. This is FRESH
AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Tim Winter, president-elect of the Parents Television
Council, discusses the need for decency standards
TERRY GROSS, host:

We've been talking about recent FCC decisions on indecency and profanity, and
why many broadcasters say those decisions are having a chilling effect. My
final guest, Tim Winter, is the president-elect of the Parents Television
Council, whose mission is to prevent children from being exposed to sex,
violence and profanity on TV and other media. The group encourages parents to
complain to the FCC, and it has filed complaints that have led to FCC fines
against stations.

Tim Winter, welcome back to FRESH AIR. Are you concerned about the complaints
of broadcasters that the FCC's rulings have been inconsistent, that the FCC is
twisting itself into legal knots, and it has become impossible for
broadcasters to figure out if content is going to be fined or not by the FCC,
and this is leading to confusion and self-censorship and, in fact, one of our
guests today has called this an indirect form of government censorship. Does
this concern you?

Mr. TIM WINTER: There are some valid concerns to that, but I will say that
most of the concerns, I think, are manufactured. They're intended to be, you
know, wrapping themselves in the American flag in a way to allow them not to
abide by the law, which I think is hooey.

But first, let's talk about the validity of some of the concerns. Granted,
the FCC has been arbitrary over the last couple of decades on enforcing the
rules. There is now stepped-up measures--there have been stepped-up measures
recently, and we applaud those stepped-up measures. There is some gray area,
as there is with pretty much any law that you have on the books. There are
always circumstances where you kind of, you know, wince, and you go, `Well,
does this really apply? Is this really against the law?' And I think that
there is some legitimate beef there by some of the broadcasters.

But what's pathetic to me is when you have bold and brazen scripted F-bombs,
when you have things like "Without a Trace," where you have high schoolers in
an orgy scene, I mean, there are things that are patently offensive by
anybody's contemporary community standards, and the broadcasters should know
better in many instances. I think it's tragic that CBS is filing suit against
the Janet Jackson incident, claiming that it's not indecent to have a
striptease during the middle of a Super Bowl, you know, halftime show. I
think it shows how out of touch many are in the industry, and I also think it
shows the intent absolutely not to be bound by any law whatsoever.

Again, I think it shows the sham, it exposes the sham that many in the
industry are trying to create, which is, `Well, we don't know what indecent
is.' Well, you know what, if you use the F-word in the middle of a broadcast
with millions of children, how can you have any question whatsoever? Sure,
there are times where, for instance, this 9/11 broadcast is coming up here
next week, "Saving Private Ryan," there are issues, there are instances, where
it's very tough to decide, where there is a very fine line and there's a lot
of gray. And, you know, we understand and appreciate that. But again, there
are times where it's absolutely, abundantly clear. And, unfortunately, it's
those instances that, I think, the networks are taking to the courts.

GROSS: Meanwhile, broadcasters are facing the problem how do you know when a
word is OK or not OK? For example, if it's OK in "Saving Private Ryan," is
that kind of expletive OK in a documentary about World War II or a documentary
about Iraq. And if it's OK in a documentary about Iraq where that's depicting
a scene of war where the soldiers are using an expletive, is the expletive OK
in an interview where a soldier is remembering a scene in war and using an
expletive to describe the scene in retrospect? And is it OK, in a documentary
about blues musicians, where the blues musicians are using that language? The
FCC said, no, it's not OK in that documentary. So how is a broadcaster to
know?

Mr. WINTER: Well, Terry, you've--I mean, you've hit the nail on the head
squarely. These are very difficult questions. But just because they're
difficult doesn't mean we don't try to get good answers, and I think that
there are no good answers right now on some of those questions because the
enforcement has been so lax for so long. It's really only just the last, you
know, 18, 24 months where we've seen any action whatsoever on this type of
material.

Let me do say this, though. I'm a, you know, a history buff. I loved
"Private Ryan," the heroism, the motion of the power of the picture, but I
believe in my heart that the heroism that was depicted, the story that was
told, could have been told in the movie theaters with those F-words and other
profanity in there, and if they wanted to broadcast it on the public airwaves
before 10 PM, they could have just quickly silenced those words and had no
concern whatsoever about running afoul of the law and not lost any impact
whatsoever in the film.

Same with thing with this blues program. You can't tell me that by muting one
word, you would have lost any real substance. And, you know what? If you had
to depict those words, if you had to use those words, you could've aired it
after 10:00. That solves everything; air it after 10:00.

GROSS: You know, just with "Saving Private Ryan," you said the heroism
could've been depicted without the language, but the film isn't just about
heroism. The film is trying to depict that war is hell, and the language is
part of that hell. It's part of the language that's used in that hell or to
describe that hell.

Mr. WINTER: Sure, but it's--I mean, we can--how far--you know, soldiers need
to have bowel movements during the course of the battle as well, but we don't
show them squatting. I'm not suggesting for a second that those words be
taken out in the theater, on cable, pay-per-view, on the DVD, any other medium
except for broadcast television before 10 PM. It seems like that's such a
simple balance of using public property, the public airwaves, in accordance
with the law of the land, and that just seems so pragmatic to me, but
obviously others disagree. And my concern is others disagree simply because
they want no rules whatsoever. They don't have any interest in finding a
balance for those who, you know, the public owns the airwaves, the public
includes people who want that language and it includes people who don't want
that language. And that's why we have these time restrictions--before 10,
don't use it; after 10, go ahead and use it.

GROSS: Tim Winter, thank you very much for talking with us.

Mr. WINTER: Thank you, Terry, always a pleasure to talk to you.

GROSS: And congratulations on your new position.

Mr. WINTER: Oh, thank you so much.

GROSS: Tim Winter is the president-elect of the Parents Television Council.
All of the interviews from today's program about the FCC and the impact of its
recent decisions will be on our Web site at freshair.npr.org. I'm Terry
Gross.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.

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