Indecent Proposal
Citing inconsistent rulings that have left writers stifled and broadcasters confused, the WGAW files to relax indecency regulations in primetime.  

 (July 2, 2013) 


Photo: ABC
NYPD Blue pushed the envelope 

In 2008, the Federal Communications Commission fined ABC and 45 station affiliates more than $1.2 million for airing a 2003 episode of the police drama NYPD Blue (co-created by Steven Bochco and David Milch) that showed the back of a woman's buttocks. At the time, the Commission said this nudity, although brief, violated its "fleeting expletive and nudity" policy implemented after the 2003 NBC broadcast of the Golden Globe Awards in which U2 lead singer Bono uttered the phrase "f------ brilliant." Last year, the Supreme Courted ruled that because the Commission had not given broadcasters sufficient notice of this policy, indecency standards as applied to these alleged violations were unconstitutionally vague. In the wake of that decision, the FCC has undertaken a review of its indecency policies and solicited public comment. On June 19, the Guild filed written comments with the FCC, advocating fundamental changes in those policies..


NYPD Blue star Dennis Franz 

From Bochco to Bono, "indecency" has plagued broadcasters and TV writers for decades as the FCC has repeatedly changed course. At the WGAW's recent 101 Best Written TV Series event, Bochco, a panelist, summed up his persistent efforts to introduce adult content into NYPD Blue, which aired from 1993 to 2005. "I thought that would be a big game changer for adult content in primetime TV and it wasn't," Bochco said of the buttock scene. "I don't know if I could get that on a broadcast network today."

In its filing, the Guild asserts that nonsexual nudity and strong language can serve an important storytelling role that is appropriate for adult audiences. As such, it has recommended that the FCC phase out indecency regulations, particularly in primetime programming.

According to the Guild's comments, the FCC's inconsistency in rulings on indecency, especially in the last decade has confused broadcasters and had a chilling effect on free expression, leading some broadcasters to edit material, broadcast material for airing only after 10 p.m. or refrain from airing questionable content at all. "This has a detrimental impact on creators and can stifle exploration of important issues," wrote WGAW research analyst Emily Sokolski on behalf of the Guild.

 

The Guild’s position on indecency rules is rooted in changes that have come about in content distribution over the last 35 years. When George Carlin's famous "7 Dirty Words" monologue aired on Pacifica radio in 1978, about 90 percent of households relied on over-the-air television. The Supreme Court held that such broadcasts were "uniquely pervasive" and "uniquely accessible to children." But today, 90% of U.S. households watch TV through cable systems rather than on-air broadcast signals. Ratings with descriptions and blocking technologies allow parents to act as gatekeepers and restrict what children watch. In light of these and other factors, the Guild’s submission notes, “the time has come to update indecency regulations.” The comments urge the FCC to declare that the use of nudity and expletives in a non-sexual or non-excretory context during primetime hours should not be considered indecent.

The current FCC definition of “indecent” focuses on whether material is patently offensive as measured by contemporary community standards. But the problem, Sokolski explains, “is that the test for identifying indecency is inherently subjective. The way it has played out is that content in documentaries and on public television and work that has serious artistic and social messages have been deemed indecent."

PBS, for example, was fined for broadcasting The Blues, a documentary directed by Martin Scorsese, because one of the musicians used the “F-word” conversationally. In this FCC environment, broadcasters are likely to err on the side of caution and stand down from airing important content for fear of a fine.

"It’s a First Amendment issue," adds Sokolski. "Relaxing regulations would allow for a greater exploration of issues on broadcast television."


Read the WGAW’s comments on indecency