FC: Bare skin on TV must be banned by FCC, says Gloria Tristani

From: Declan McCullagh (declanat_private)
Date: Fri Jun 29 2001 - 07:43:28 PDT

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    Some background:
    
    http://www.politechbot.com/p-02049.html
    Prudish FCC commissioner plans to run for New Mexico governor
    May 21, 2001
    
    http://www.politechbot.com/p-01864.html
    FCC's Tristani complains about yet another "indecent" broadcast
    March 29, 2001
    
    http://www.politechbot.com/p-01781.html
    Prudish FCC commissioner insists "piss" should be punished
    March 2, 2001
    
    ---
    
    FOR IMMEDIATE RELEASE:		News Media Contact:
    June 27, 2001			Paul Gallant at 202-418-2300
    
    
    PRESS STATEMENT OF COMMISSIONER GLORIA TRISTANI
    Re: Enforcement Bureau Letter Ruling on Indecency Complaint
    Against WTXF-TV, Philadelphia, Pennsylvania
    
    
    	The FCC's Enforcement Bureau has dismissed an indecency complaint filed by 
    Ms. Cherie Degnan of Ambler, Pennsylvania.  On January 23, 2001, Ms. Degnan 
    wrote to the FCC's Enforcement Bureau and explained that, earlier that day, 
    "full frontal male and female nudity was broadcast as part of a News 
    Program" on WTXF-TV of Philadelphia, Pennsylvania.  According to Ms. 
    Degnan, those images were broadcast at approximately 8:53 a.m. without 
    advance warning from the television station.  The Enforcement Bureau 
    dismissed Ms. Degnan's complaint because, according to the Bureau, her 
    failure to provide a "tape, transcript, or significant excerpts" of the 
    broadcast prevented the Bureau from determining whether the images 
    broadcast were indecent in context.
    
    	At the outset, I would note that that the Bureau letter dismissing Ms. 
    Degnan's complaint seems to rely erroneously on the First Amendment to 
    justify the procedural hurdles involved with the filing of indecency 
    complaints. The Enforcement Bureau tells Ms. Degnan that "the FCC generally 
    requires complainants to provide a full or partial tape or transcript or 
    significant excerpts of the program" because a broadcaster's speech has 
    certain protections under the First Amendment.
    
    In fact, the First Amendment has nothing to do with the Bureau's 
    evidentiary standard for complaint filing.  The First Amendment simply 
    ensures that, once all the evidence is in, the FCC does not punish 
    broadcast speech that is not indecent.  The First Amendment does not 
    require a certain level of proof in a citizen's complaint to the FCC.  The 
    FCC is free to gather evidence however it wants - from complainants or from 
    broadcasters.
    
    	These complaint filing requirements (tape, transcript, or significant 
    excerpt) are not only unrelated to the First Amendment, they are 
    disconnected from reality.  People do not normally tape or transcribe the 
    programs they are watching or listening to, and thus it is unfair to expect 
    people file such material with their complaints.  If for some reason the 
    complainant happens to have that information, the easier it will be for the 
    Commission to evaluate the complaint.  But failing to produce that kind of 
    documentation should not result in dismissal of indecency complaints, as is 
    the Bureau's general practice.
    
    	As to Ms. Degnan's specific complaint, there is no disagreement that 
    context is critical in determining whether the broadcast of a particular 
    statement or image is indecent.   We know from Ms. Degnan's letter that 
    male and female frontal nudity was televised in the morning, when children 
    are likely to be in the audience.  We also know that courts have affirmed 
    the Commission's ban on the broadcast of "material that, in context, 
    depicts or describes, in terms patently offensive as measured by 
    contemporary community standards for the broadcast medium, sexual or 
    excretory activities or organs."  Since Ms. Degnan's complaint appears to 
    describe the televised broadcast of "sexual organs" - in her words "full 
    frontal male and female nudity" - during the time of day when indecent 
    broadcasting is prohibited, it is certainly possible that the Bureau would 
    have found an indecency violation.  In my view, the complaint contained 
    sufficient evidence to begin an investigation into whether the context of 
    this nudity amounted to an indecent broadcast.  At a minimum, Ms. Degnan's 
    complaint merited more than the summary dismissal it received from the Bureau.
    
    In sum, the Bureau has continued to enforce unreasonable filing 
    requirements for indecency complaints (tape, transcript, or significant 
    excerpt).  The Bureau then failed to mitigate that problem by deciding not 
    to contact WTXF to inquire about Ms. Degnan's complaint.  The Bureau's 
    action - or inaction - in this case will further embolden broadcasters to 
    ignore the FCC's rules against indecent broadcasting, and in so doing, 
    encourage them to air material that is harmful to children.
    
    I sincerely hope the Commission will reevaluate its handling of indecency 
    complaints.  The indecency complaint process, as presently configured, 
    tilts sharply in favor of broadcasters and against members of the public 
    who wish to register an indecency complaint.  Surely there is a more 
    effective way of enforcing Congress's ban on indecent broadcasting while 
    affording all due fairness to broadcasters.  Making the complaint process 
    more accessible to the public would be good public policy and would more 
    faithfully comply with Congress's directives to the FCC regarding broadcast 
    indecency.
    
    ---
    
    
    
    
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