|By pixelating an officer's mouth in Frontline's report on the Iraq insurgency, pubTV avoided risking FCC fines. (Screen shot: WGBH.)|
FCC penalties for broadcasting pixilated images of porn stars and strippers demonstrated that simply turning naughty bits into blurry bits doesn’t prevent indecency fines.
PBS, uncertain as anyone over the FCC’s decrees and still stinging from the recent fine of a public TV station, is taking cover under a new layer of digital obfuscation.
Producers who want their work aired in the family-friendly 6 a.m. to 10 p.m. zone now must go beyond audio bleeps to pixilate any on-screen mouths that visibly form curse words.
The move, outlined in a May 31 memo to stations, came in the wake of this spring’s $4 million passel of FCC indecency fines — one of the smallest being a $15,000 decree against pubcaster KCSM in San Mateo, Calif. Congress was meanwhile increasing tenfold the maximum fine for such offenses. President Bush signed the bill raising the top fine to $325,000 per incident on June 15.
“We’re trying to react appropriately to the FCC’s recent decisions,” says Lea Sloan, PBS’s v.p. of communications. The KCSM fine, levied for an episode of The Blues that contained music-industry people using several variations on “fuck” and “shit,” demonstrated “that just because something was a documentary, that doesn’t provide sufficient context to make the language acceptable to the FCC,” Sloan says.
Though the commission so far hasn’t fined broadcasters for profane words that can be seen but not heard, PBS’s new standards, which also call for a full bleep on compound expletives such as “motherfucker,” are the network’s attempt to stay one step ahead of the game.
Few observers expect the FCC would levy a maximum $325,000 fine on a pubcast er. But even fewer think public TV should take high-stakes gambles where inconsistent precedents are difficult to read.
FCC commissioners “don’t even know what they’re doing, so how are we supposed to know? That’s the question of the day,” attorney Margaret Tobey told a group of programmers at last month’s Public Television Programmers Association meeting in Orlando. Tobey’s D.C.-based firm, Morrison & Foerster, is handling KCSM’s appeal pro bono.
PBS’s policy is still to put programs with potentially indecent content on the network’s main feed if the producer offers stations the routine indemnification, PBS General Counsel Katherine Lauderdale told the PTPA crowd. Stations can choose alternative versions on separate soft feeds. Lauderdale also distributed a series of questions to help programmers assess broadcast indecency.
As for reruns of programs distributed before PBS required pixilation, the original indemnifications still hold unless stations hear otherwise, Eric Brass, corporate counsel for Boston’s WGBH, tells Current.
The new guidelines therefore don’t require producers to modify old productions, but WGBH is still figuring out how it will handle rebroadcasts of edgy older programs, Brass says. Producers have already made some small tweaks. In response to the new guidelines, Frontline blurred the mouth of a soldier in a June 13 rerun of “The Insurgency” (photo above).
The edit was subtle, but more prominent pixilation in the future could introduce an element of ridiculousness into serious works. More likely, it could cause filmmakers to cut edgy but important scenes to avoid unintended humor, says Louis Wiley, the series’ executive editor.
“We’re losing some of our ability to create powerful material that is truthful and accurate,” Wiley says. “We’re in the education business, not the shocking business, but sometimes to educate people they have to see and hear things as they really are, in a limited way.”
Wiley, who said he was speaking for himself, not WGBH, blames the FCC rather than PBS for the policy.
However, a review of recent FCC actions didn’t turn up any examples of fines that sprang from the complaints of readily offended lip readers. Even a rep from the Parents Television Council, which has pushed for stiff indecency penalties and offers forms to help people file complaints, isn’t sure the group would encourage people to complain about merely mouthed words that had already been bleeped.
“It really depends on situation, but my gut reaction would be that we probably wouldn’t” advise people to file such complaints, says Melissa Caldwell, senior programs director for the PTC.
Larry Miller, a communications attorney that represents a number of public TV stations, can’t recall an example of an unpixilated cursing mouth causing a fine.
But he and others think the move is not unreasonable in the current regulatory environment.
“PBS does not want to be involved in a case that sets some precedent for unpixilated, non-audible expletives,” Brass says.
Says Miller: “It’s hard to know what the commission wants anymore on pixilation.”
The FCC recently levied fines for broadcasting blurred nudity on the WB network’s Surreal Life 2 and also cited CBS’s Without a Trace and Telemundo’s Con El Corazón En La Mano for graphic scenes with no nudity because the sexual context was unmistakable. In 1999, it fined Back Bay Broadcasting, a Rhode Island radio station owner, for airing bleeped curse words that were “recognizable, notwithstanding the editing.”
And, of course, it fined KCSM for profanity-laced bluesspeak, even though the trash talk was clearly outside of sexual or excretory context. The commissioners have decreed that the f- and s-words “invariably invoke coarse sexual and excretory images.”
“I haven’t had one call [about the new PBS guidelines] from clients saying, ‘This is outrageous!’” Miller says. “Everybody is pretty cautious right now and waiting to see what happens with the Blues case.”
“Even those of us who are strong First Amendment advocates are concerned about where the regulation is going,” he adds. “Nobody wants to be the next test case.”
In with the “worst of the worst”
KCSM wasn’t looking to be a test case either, but the little college-owned station found itself cast in that role in March when the commission fined it along with an array of commercial stations.
The commission ruled in last year’s seemingly significant Saving Private Ryan case that expletives were acceptable in the ABC broadcast because removing them would have diminished the realism of the fictional war story. But in KCSM’s case, the FCC found a documentary of actual reality was in violation, along with pixilated porn stars on The Surreal Life 2, teen orgies on Without a Trace and Puerto Rican rap videos that extolled the virtues of anal sex.
Public TV has been “lumped together with the worst of the worst,” Wiley says. “If curse words are okay in a movie, they sure as hell should be okay in a documentary.”
In Morrison & Foerster’s 170-page appeal for KCSM, filed last month, the attorneys noted that the FCC’s authority to regulate indecent speech “is constitutionally permissible only if exercised with caution and restraint.” In recent decisions, however, the commission “appears to have abandoned that caution and restraint and has instead created a vague and overbroad indecency enforcement scheme that impermissibly burdens protected speech,” the attorneys wrote.
The firm does not know when the FCC will respond to the appeal, a spokeswoman said.
In the meantime, pubTV leaders, fearing talented filmmakers will jump to cable channels not bound by the indecency standards, hope to convince the commission to give documentaries more thoughtful consideration than the average envelope-pushing reality TV show, Sloan says. “The documentary genre needs to be scrutinized with a finer point on the pencil.”
But until it is, Lauderdale told programmers at last month’s conference, PBS will try “to remain true to the program but also protect the stations’ licenses.”
“It’s a balancing act,” she said, “and it’s harder than you think.”
Reported with assistance from Karen Everhart
Web page posted July 7, 2006, updated July 11, 2006
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