The Federal Communications Commission today announced its intent to fine a television station $325,000 — the maximum penalty available — for airing less than three seconds of a pornographic video on a small portion of the screen during an evening newscast.  The Notice of Apparent Liability is a reminder of the FCC’s continued vigorous enforcement of its obscenity and indecency rules.

On a 6 p.m. news broadcast in July 2012, WDBJ-TV in Roanoke, Va. aired a story about a former adult film star who had joined a local volunteer rescue squad.  The story included less than three seconds of a pornographic video in a box on the side of the screen. WDBJ said that the pornographic video was not visible on the monitors in the station’s editing bay, and therefore management did not see the material before it was broadcast. The WDBJ photojournalist who compiled the footage later said that he had not noticed the pornographic material.

WDBJ argued that it did not violate the FCC’s indecency rules because it lacked notice that the Commission would find such fleeting materials to be indecent in the context of a local news broadcast.  The Commission rejected this argument, recognizing that although the material was aired during a “bona fide news program,” the graphic depiction of sexual activity was patently offensive.  The Commission reasoned that “broadcasters cannot show news and sexually explicit images on a split screen and take the position that the latter is not indecent simply because it shares the screen with a news program.” 

In 2013, the Commission issued a Public Notice, seeking comment on its indecency policy after a 2012 Supreme Court ruling that the Commission had not adequately explained certain fines issued in connection with the broadcast of fleeting expletives.  The Commission has not yet issued an order in that proceeding.  WDBJ argued that the Public Notice barred the FCC’s enforcement action.  The Commission rejected this argument, both because the broadcast occurred months before the FCC issued its public notice, and because the Public Notice states that the FCC’s substantive indecency policy will remain unchanged while the notice is pending.

WDBJ also challenged the constitutionality of the Commission’s indecency policy, contending that technological changes have rendered Pacifica inadequate to justify that Commission’s regulation of indecent speech by broadcast licensees.  The Commission rejected this argument, concluding that Pacifica remains valid, and that “[b]roadcasters are trustees of the public air waves, and we believe that parents should be able to tune into an early evening broadcast without fear that it will expose their children to sexually explicit or other indecent material.”

Particularly noteworthy was the Commission’s decision to propose a fine of $325,000, at the time of the alleged violation the maximum amount available (that cap has since increased to $350,000). The Commission reasoned that the broadcast was “extremely graphic, lewd, and offensive,” and noted that WDBJ’s parent company reported annual revenues of $127.7 million in 2013. 

In a news release accompanying the decision, Travis LeBlanc, chief of the FCC’s Enforcement Bureau, stated that the action “sends a clear signal that there are severe consequences for TV stations that air sexually explicit images when children are likely to be watching.”  The ruling suggests that the Commission will subject broadcasters to large fines for even brief broadcasts of indecency, particularly during times when children are likely to be watching, and that the Commission is unlikely to allow the broadcast of indecent material merely because it took place during a news program.