If you had any thoughts that Congress might be inclined to overlook media and advertising issues as it deals with more pressing matters of state, take a look at the Senate Commerce Committee's agenda for the next four months. In the prelude to a long-awaited rewrite of the 1996 Telecommunications Act, the Commerce Committee will hold hearings on a broad range of media and communications issues. Some of the topics don't really have much to do with the Telecom Act, per se, but are far too juicy for policymakers to ignore.
It is probably no coincidence that the Senate chose to focus on "decency" and "pornography" as the first two hearings for January 2006. January is Super Bowl month in America, after all, and it was not too long ago that Janet Jackson's risque, breast-baring, half-time routine focused the nation's attention on the issue of decency in broadcasting.
The growing public enmity over indecent broadcasts has been seized upon by a few activists who are seeking nothing short of a sea change in the status quo. Citing Jackson, plus ABC’s prime-time, backside-baring promo for Monday Night Football featuring Terrell Owens holding a scantily-clad Nicollette Sheridan, and repeat offender Howard Stern’s liberal use of the F-word, these crusaders hope to chasten the media into adopting new cultural idioms.
In the interim, the FCC has issued a series of rulings on indecency, from broadcasts of Saving Private Ryan to the excited utterance of the F-word by a winning quarterback in a post-game interview. In one of his first high-level appointments, FCC Chairman Kevin Martin selected a senior official to monitor decency in the airwaves. We can bet that more, not less, scrutiny lies ahead.
So what does all this have to do with advertising, you ask?
Well, advertising is a creative medium that, in its earnest efforts to be funny, cool or edgy, often tests the current boundary line of social acceptability. These efforts have not gone un-noticed by policymakers and regulators who bristled at the "Go Daddy" commercial featuring a buxom brunette writhing in mock testimony before a Congressional hearing. To some, this bordered on indecent; to others it was simply a saucy--and completely acceptable--satire.
Since there is no bright-line test on broadcast decency, advertisers may be forced to guess, and, in so guessing, risk erring on the wrong side of the line.
Consider the FCC's current guidelines on indecency, taken from its website:
What makes material “indecent?” Indecent material contains sexual or excretory material that does not rise to the level of obscenity. For this reason, the courts have held that indecent material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted to avoid its broadcast during times of the day when there is a reasonable risk that children may be in the audience. The FCC has determined, with the approval of the courts, that there is a reasonable risk that children will be in the audience from 6 a.m. to 10 p.m., local time. Therefore, the FCC prohibits station licensees from broadcasting indecent material during that period.
Material is indecent if, in context, it depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium. In each case, the FCC must determine whether the material describes or depicts sexual or excretory organs or activities and, if so, whether the material is “patently offensive.”
In our assessment of whether material is “patently offensive,” context is critical. The FCC looks at three primary factors when analyzing broadcast material: (1) whether the description or depiction is explicit or graphic; (2) whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs; and (3) whether the material appears to pander or is used to titillate or shock. No single factor is determinative. The FCC weighs and balances these factors because each case presents its own mix of these, and possibly other, factors.
Given this standard, I would not be surprised if a few Congressional champions of the public interest sought to tighten the standards on broadcast decency, and in so doing, include a little piece on advertising, too.
If that were to occur, advertisers would certainly find out where the new line on decency is drawn and, unlike today, they very well could be penalized for the slightest misstep over it.
(c) 2005 Adonis Hoffman
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