(By John Garziglia) In the radio interview immediately following the Detroit Lions loss to Buffalo, Head Coach Matt Patricia dropped the F-bomb, saying: “Look, for us, it’s not different. We go out, we compete, we try to win and we try to f***ing get better every week”.
So, is the radio station subject to an FCC fine or not?
It has been several years since the FCC last took adverse action against a broadcast station for an alleged indecent, profane or obscene broadcast. According to the FCC’s own compilation, the most recent was a 2015 Notice of Apparent Liability against Roanoke television station WBDJ for a brief and inadvertent depiction of an erect penis during the evening news. The television station’s extensive Opposition to the Notice of Apparently Liability takes direct aim at the fleeting nature of the complained-of content, the constitutionality of the FCC’s indecency standards, and the amount of the fine, and is worth a read.
In a now almost-forgotten action, the FCC in 2013 opened a proceeding to seek comment on the FCC’s indecency policies. Ironically, on April Fool’s Day of that year, the FCC released a Public Notice opening GN Docket No. 13-86 seeking comments from the public as to whether there should be changes to broadcast indecency policies. In response to that indecency Public Notice, some 102,958 comments were filed by the public.
The FCC asked in the indecency Public Notice whether the deliberate and repetitive use of expletives in a patently offensive manner should be required to find indecency, or whether simply “isolated expletives” were sufficient. The Commission stated that in any event pending any change it its policies it would continue to focus its “indecency enforcement resources on egregious cases”. To date, the FCC continues to struggling with what is indecency.
The most famous indecency standard of “I know it when I see it”, was penned in exasperation by US Supreme Court Justice Potter Stewart in 1964 to describe his threshold test for obscenity (rather than indecency) in Jacobellis v. Ohio. But the standard
clearly is insufficient when it comes to assessing on-air content that could cost a radio station tens of thousands of dollars. To say that the FCC’s indecency policies and the application of those policies throughout the years has been mercurial is an understatement.
So, what are the arguments for and against the radio station that broadcast the Head Coach’s energetic statement that unfortunately contained the “F-word”? Does that word even describe a sexual function when it is used as a derisive adjective in common speech?
If a complaint is filed at the FCC in this most recent incident, the station can argue that it was a fleeting use of the prohibited word in live coverage of a newsworthy event with no intent to imply a sexual function and was, in any event, outside the control of the radio station. But recall what the FCC would have done with Cher’s similar outburst on the 2002 Billboard’s Music Awards Show but for the Supreme Court holding that the FCC had not given proper notice of its new policy.
Despite the changes in our society and the public’s use of some four letter words to describe anything but a sexual activity, the bottom line is that the FCC’s indecency policies have not changed. The F-word being broadcast on radio could result in an FCC notice of apparent liability with the assessment of a substantial fine.
John Garziglia is a communications attorney at Womble Bond Dickinson and can be reached at (202) 857-4455 or [email protected]