Zero Tolerance and the FCC

Aug 1, 2013

We seem to live in the age of “zero tolerance.” A zero tolerance policy imposes automatic pre-determined punishment for infractions of a rule or law, forbidding people in positions of authority from exercising discretion or changing punishments to fit the unique circumstances or history of any given infraction. While it’s hard to argue against the merits of certain zero tolerance positions society has taken, like drinking and driving, numerous examples exist where zero tolerance rules have led to unjust outcomes and caused detrimental unintended consequences.

One such example is the Federal Communications Commission’s (FCC) zero tolerance stand on indecent speech on radio and television. Current FCC policy on indecent speech was developed after U2 singer Bono used the F-word at the Golden Globe Awards ceremony in 2003 to express how delighted he was to win. He was really, really delighted. That was apparently the straw that broke the Bush administration’s back, and the FCC adopted a new, more punitive approach that included fining broadcasters for even fleeting and isolated use of vulgar language. Since the FCC’s policy shift, this issue has been hotly debated, landing in the Supreme Court twice during the last four years. Last year, the court threw out the FCC’s current policy for being too vague.

The trouble with the FCC’s zero tolerance stance is that it doesn’t make exceptions when responsible broadcasters are covering live news events and a fleeting expletive is uttered. A recent example is when Boston Red Sox slugger David Ortiz dropped the F-bomb during a live televised pre-game ceremony honoring law enforcement for capturing the Boston Marathon bombing suspects. “This is our f—-ing city,” Ortiz said. “And nobody’s going to dictate our freedom.” Technically, Ortiz’s language was against FCC policy and stations that aired it could be subject to stiff fines. The FCC, however, quickly declared that it would not enforce its policy in this case when FCC Chairman Julius Genachowski used social media to tweet, “David Ortiz spoke from the heart at today’s Red Sox game. I stand with Big Papi and the people of Boston.” Apparently, there is some discretion allowed in zero tolerance policies after all.

Now the FCC has proposed a new approach to its indecency enforcement policy based on a more restrained concept of taking action only in “egregious cases.” This new approach makes considerably more sense as it would distinguish random, isolated utterances from intentional, planned or repeated occurrences of indecent speech. In June, NPR filed comments on behalf of the public radio system endorsing this new policy direction. NPR also urged the FCC to create an explicit “safe harbor” for news and public affairs programming to better respect and protect the First Amendment rights of responsible broadcasters and to provide more guidance on how it assesses fines for indecency violations. Currently, the potential for both extremely large fines (up to $325,000 per violation) and a finding of multiple violations within a single program have created enormous uncertainty for public radio stations around the country. It should be noted, that this new approach has its opponents as evidenced by the over 100,000 comments supporting the current, stringent standards filed during the FCC’s public comment period which ended in July.

At JPR we are sensitive to any occurrence of indecent or inappropriate language on our air and make every effort to avoid it. We routinely screen lyrics to music that may contain profanity with the sensibility of every parent in our audience. We employ a digital delay system during live program segments so that any spontaneous profane tirade can be “bleeped” out. But, at the end of the day, if some piece of isolated inappropriate language slips through our grasp, despite our best efforts, we don’t believe we should be subject to huge fines that would significantly jeopardize our service to our listeners.