Roanoke's WDBJ7 Intends to Fight Massive FCC Indecency Fine

ROANOKE, Va.—Ya gotta feel sorry for Harmony Rose, the adult actress whose hand is the center of the controversy surrounding the largest indecency fine the Federal Communications Commission (FCC) has ever leveled against a broadcaster for a single incident—in part because it's the first time the FCC has attempted to fine a TV station for indecency since Congress increased the maximum fine ten-fold, to $325,000, in 2006. The offense? As AVN noted earlier, during the station's July 2012 report on Rose, which cataloged some of the flack she had gotten from some residents of Cave Spring, where she had had the temerity to join the local rescue squad, WDBJ had included some photos of Rose from her former porn career: one showing her sitting on a bed clad only in a bra; one close-up of her mouth as she's sucking on her finger—and one tiny image in the corner of a background video where a hand (apparently not Rose's) can be seen jacking off a cock ... for less than three seconds. But while the FCC filed notice of its intent to fine WDBJ (or, actually, its owner, Schurz Communications) in March of this year, the station has just filed its opposition to the levy—and although the 55-page document is not available to the public, an article on the Broadcasting & Cable website indicates that among the objections to the fine include "that the broadcast did not violate the FCC's indecency policy, that imposing the fine violates the First Amendment, that WDBJ lacked the necessary 'scienter,' a legal term for meaning to do what it did, and that even if a fine were warranted, imposing the maximum fine—the highest ever proposed for a single incident—for an inadvertent and momentary display was not warranted." Part of the problem is that according to statements from WDBJ president/general manager Jeffrey Marks and various newsroom employees, the brief hardcore wasn't even visible on the newsroom's internal monitors, since it was along the edge of the larger video image of Rose sucking her finger, and the station denies that the airing could have been prevented if, as the FCC claims, station employees had been more attentive or had spent more time vetting the material. Calling it a "fleeting, inadvertent, and isolated transmission," WDBJ noted that the FCC had provided no justification for levying the maximum fine, which the station described as "forty-six times the base amount" designated for such an "offense." "While WDBJ regrets that an offensive image was inadvertently broadcast, we believe that the First Amendment does not allow the FCC to 'throw the book' at a station for unintentionally including a fleeting inappropriate image in a newscast about a legitimate story," Marks said. "WDBJ has taken steps to ensure that this kind of incident cannot be repeated. We have asked the FCC to withdraw its proposed forfeiture." And there's good reason for the FCC to do so. For one thing, the judicial system has been particularly unfriendly to the FCC pretty much every time its indecency fines have landed it in court. For example, it lost all of its 21st-century "big name" cases like Janet Jackson's half-second tit exposure during the 2004 Super Bowl halftime show, Charlotte Ross's ass exposure in the 2003 episode "Nude Awakening" of NYPD Blue, Cher's responding to critics with a simple "Fuck 'em" at the 2002 Billboard Music Awards and "reality star" Nicole Richie's statement "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple." in the same venue the following year. Beyond that, just before he left office as the FCC chairman, Julius Genachowski asked the public to comment on the FCC's indecency policies in light of the agency's string of losses—policies that supposedly limited FCC action to "egregious" displays and continual violations rather than single "fleeting" incidents, as had been the FCC's policy since the 1978 Pacifica case involving George Carlin's "Seven Dirty Words," until massive pressure from conservative religious groups led to the actions noted above. No word on how the public felt about the issues Genachowski raised, since the new chairman, Tom Wheeler, hasn't mentioned the subject. Indeed, as recently as March 23, FCC Enforcement Bureau chief Travis LeBlanc stated, "Our action here sends a clear signal that there are severe consequences for TV stations that air sexually explicit images when children are likely to be watching." (No shit!) But legislators, the general public and even the mainstream media have been nearly silent on the issue, in part because as First Amendment commentator/attorney Clay Calvert recently noted, "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!'" Of course, although Morality in Media the National Center on Sexual Exploitation was the first to jump on the censorship-by-fine bandwagon, other holier-than-thou pressure groups weren't far behind. "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," said Parents Television Council (PTC) President Tim Winter, later adding, "For the last several years, the FCC has failed to enforce the law—even when broadcasters have aired explicit and disgusting content, like gang rape, child molestation, and a man masturbating a horse. Hundreds of thousands of public complaints remain to be adjudicated." (That last sentence, of course, is a lie: The FCC deep-sixed the vast majority of those complaints while Genachowski was still chairman—but since his exit, organizations like PTC have frequently encouraged their followers to file even more complaints.) "We are grateful to FCC Chairman Tom Wheeler and all of the commissioners for this enforcement action," stated Cathy Ruse, a "Senior Legal Fellow" at Family Research Council (FRC). "This action should serve as a strong reminder to other stations and networks that there are laws in place to protect the public airways and those laws will be enforced. The fact that the FCC chose to pursue the highest possible fine is a good sign that it is taking this transgression very seriously." One might remember that one transgression FRC didn't take very seriously was its employee Josh Duggar's admission that he'd sexually molested a couple of his sisters in his teens. In any case, the battle lines have been drawn, and while it seems likely that WDBJ will cave if the FCC lowers its penalty to customary levels (say, $30,000), we just might be treated to yet another court battle over whether broadcasting three seconds of barely visible hardcore content will be considered "fleeting"—or even actionable at all.