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Indecency, Politics and the FCC: A New Round in the Culture Wars?

04/16/2015 01:23 pm ET | Updated Jun 16, 2015

Just in time for the new presidential election cycle, the culture wars over indecent content on the broadcast television airwaves -- remember when Justin Timberlake had Janet Jackson naked by the end of that Super Bowl song? -- are heating up again after a period of dormancy.

But unlike abortion and health care, the new battle in the culture wars features a topic on which potential candidates from both sides of the political aisle are likely to agree: indecency is bad and parents today need all the help they can get from the government -- specifically, from the Federal Communications Commission -- in protecting the eyes and ears of their young children from sexual images and language. I doubt you'll ever hear a viable candidate say anything different in the age-old quest to appear family friendly.

What politician, after all, is going to pound the podium during a live televised debate and proudly proclaim, "Fellow Americans, I'm here tonight to support your First Amendment right to receive indecent content -- all day, every day, all free -- on over-the-air television and radio stations. You want lurid language, nip slips, bare buttocks and Miley riding naked on a wrecking ball? Well, I say -- bring them on! The more T&A on TV, the better!"

What sparked the new round in the culture wars? Last month, the FCC fined TV station WDBJ (Channel 7) of Roanoke, Virginia, a whopping $325,000 for accidentally airing, for a total of three scandalous seconds during a television newscast, what the Commission called "extremely graphic and explicit sexual material, specifically, a video image of a hand stroking an erect penis." As one might very well suspect, this story did not have a happy ending for the station.

As the Roanoke News reported, the fine "is the largest penalty the FCC has ever levied for a single indecent broadcast at a station."

Jonathan Peters, writing for the Columbia Journalism Review, encapsulated more completely the content that resulted in the $325,000 fiscal blow for WDBJ:

In its 6 p.m. newscast, the station aired a story about a porn star volunteering for a local EMT rescue team. Illustrating that story was a video image, from a porn site, depicting the star in a suggestive but non-explicit way. However, part of the site itself was displayed along with the image, and visible was an explicit clip, as the FCC concluded, of a hand engaged in the activity noted above.

Jeff Marks, the president and general manager of the station, explained that "the picture in question was small and outside the viewing area of the video editing screen. It was visible only on some televisions and for less than three seconds." He added that "the story had gone through a review before it aired. Inclusion of the image was purely unintentional."

Was the broadcast indecent? A couple of key points must be understood. First, indecency and obscenity are not the same thing under the law. The latter is never protected by the First Amendment, while the former is, at least between hours of the day when kids supposedly are not in the audience.

Second, indecency is defined by the FCC as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." The key terms here are "patently offensive," "contemporary community standards," and "sexual or excretory organs or activities."

There's no question that the image was that of a sexual organ and a sexual activity, but was it "patently offensive" in the context of a news story about former porn star turned volunteer EMT and in light of its three-second airing in a tiny part of the screen?

Another question is whether the broadcast was an "egregious" instance of indecency. That's because in April 2013, then FCC Chairman Julius Genachowski announced that the Commission would "focus its indecency enforcement resources on egregious cases."

Hard as it may be to believe, it's been more than 10 years since the infamous Janet Jackson nipplegate scandal during a Super Bowl halftime show caused Congress to up the maximum fine against a station for airing a single instance of indecency tenfold, from $32,500 to $325,000. The amount was recently hiked to $350,000, but when WDBJ aired the offending story in July 2012, it was $325,000.

The Parents Television Council takes credit for the FCC's action against WDBJ, calling it "the result of many years of unceasing effort by the PTC." The PTC added that the FCC's pushback against WDBJ,

marked the first time in seven years a broadcaster has been fined for indecent content. It's an encouraging first step; but there are still hundreds of thousands of complaints from the American people waiting to be acted upon -- and we will do our utmost to see that the FCC acts.

The PTC, of course, has a valid point. Broadcasters don't own the airwaves -- they only hold licenses to them -- and the FCC requires broadcasters to serve "the public interest."

As PTC president Tim Winter put it, "The FCC's unanimous and bipartisan ruling is a victory for families, and it serves as a powerful reminder to broadcasters who borrow the public's airwaves that they must abide by the law."

Two questions, ultimately, must be asked. First, does the $325,000 punishment really fit the supposed three-second crime? Second, was this an "egregious" instance of indecency, even if one finds it was indecent?

Ultimately, no matter what you or I think, one this is sure -- we won't find any of the candidates now tossing their hats into the presidential ring disagreeing with the FCC's decision. The new battle in the culture wars might just fade fast.