Y'all Know Better: FCC Regulation of LGBT Television Content
Introduction
“The only thing [Trump’s] mouth is good for is being Vladimir Putin’s cock holster.”
- Stephen Colbert, The Late Show. May 1, 2017.¹
On May 1, 2017 the late-night comedian Stephen Colbert’s monologue for CBS’s The Late Show with Stephen Colbert included several jabs and jokes about President Donald Trump and his relation to Russian President Vladimir Putin.² Specifically, he suggested that Trump was just Putin’s “cockholster.” This comment resulted in immediate backlash from audiences across the nation who claimed that Colbert’s words were inappropriate, indecent, and should not have been allowed to be broadcast. The FCC received hundreds of indecency complaints about the broadcast, claiming that Colbert’s use of the word “cockholster” was indecent. A handful of complaints were clearly anti-LGBT, and protested the mere suggestion of homosexual activity in Colbert’s words. However, the majority of such complaints supported the LGBT community and took issue with the joke due to its trivialization of the LGBT community and suggestion that accusations of homosexuality were insulting. In response, FCC chairman Ajit Pai announced that the Commission was investigating Colbert’s comments, but ultimately decided against taking any action or levying any fines against CBS or Colbert.³ This disconnect between the public outcry and lack of regulatory action underscores a growing concern with the FCC’s role in regulating television content and the standards it uses to assess whether content is protected by the First Amendment or not.
The Federal Communications Commission (FCC) was originally created in 1934 to regulate and manage the new and emerging communication technologies. One of its founding principles was the notion that the airwaves belong to the public, and could not be owned or controlled by a single person or corporation. Thus, the Commission was created manage the public airwaves, and distribute licenses to the stations that wanted to use it. By extension, the concept of publicly-owned airwaves meant that stations using those airwaves to broadcast content should be required to serve the needs and interests of the general public. As such, the FCC soon became involved in managing not only the licensing of public airwaves, but in regulating the content that was distributed upon them as well. Throughout its history, the FCC has used its regulatory power to restrict and remove indecent, obscene, and profane speech from public airwaves. As the FCC expanded its regulatory reach to include broadcast television, cable television, and now the Internet too, this speech regulation continued, raising important questions about the balance between the FCC’s role in protecting the public interest and the free speech protections of the First Amendment. Rather than explicitly defining what content is considered inappropriate for broadcast, it uses the subjective interpretations of The Miller Test, which assesses whether certain speech would be deemed indecent by “local community standards.”
Rather than explicitly define what types of content are or are not considered indecent, the Miller Test provides a flexible set of guidelines to assess any given content. It asks questions such as whether the content appeals to the “prurient interest,” whether it depicts or describes “sexual conduct or excretory functions” in a patently offensive manner, and if it lacks “literary, artistic, political, or scientific value.”
However, this reliance upon loosely defined community standards is incompatible with content that is available within multiple communities, or even to national audiences via technologies such as cable or satellite television. These limitations of using so-called community standards as the baseline for regulating speech have become increasingly apparent as more television content is distributed via online streaming services, and as these viewing trends continue to change, the FCC’s role in managing indecent television content has become increasingly complicated.
Through my research, I have found that there really is no perfect or fully impartial way in which to regulate or otherwise restrict free speech. As mass communication technologies continue to develop and connect diverse and distant communities, the geographic distinctions of “local communities” become increasingly blurred, limiting the ability for government agencies to use such standards for content regulation. Thus, as the FCC expands its regulatory action into the area of Internet communication technologies, it will also have to reevaluate its role as a speech regulator, as well as the standards upon which it makes such judgements. Generally speaking, the FCC’s role in the regulation of speech is minimal at best, despite the fact that many people mistakenly believe that the Commission is responsible for such activities. Rather than relying upon a government agency to dictate what types of content are allowable, TV viewers have the power to “vote with their wallets.” If something is undesirable to sufficient numbers of viewers, there will be pressure from advertisers to adopt the content in response. In this way, the TV industry can organically determine what content is acceptable for public airwaves, rather than relying upon the poorly-defined notion of “local community standards.”
Methodology
“Please do everything possible to remove any references to the LGBT community. Makes me sick to my stomach for us to be exposed to sex scenes on Scandal, Empire, How to Get away with Murder, etc. No one should be exposed to this sin. Y’all know better.”
- Anonymous FCC Indecency Complaint.
For my examination of the history of FCC censorship of television content, I assembled a body of evidence composed of consumer complaints submitted to the FCC. Within these complaints, I identify trends in the type of indecency complaints that the Commission receives, and categorize complaints as being either pro-LGBT or anti-LGBT. Additionally, I assess whether there are any common themes that arise from within either category, and whether or not the distinction of “local community standards” is reflected in those consumer complaints.
Although general metadata about the number, and nature of complaints submitted to the FCC is publicly available via their website, the specific content of these complaints is not published. However, any materials submitted to the FCC as part of an indecency complaint become part of the Commission’s public record and thus are covered by the Freedom of Information Act (FOIA).
I began by submitting the following FOIA request to the FCC via their online eFOIA website:
I am a media studies student at the University of Oregon, and I am currently studying content regulation of obscene and profane speech on broadcast television programs. I am interested in indecency complaints received in regards to LGBT individuals and content, as well as the FCC’s response to any such complaints. For this purpose, I am requesting electronic copies of all FCC complaints received from January 1 2016 through January 1 2018. Specifically, I am looking for any complaints that were made for the TV form — irregardless of Cable, Broadcast, or Satellite methods — and that were made about an issue of Indecency; and specifically mention the terms LGBT, lesbian, gay, bisexual, trans or transsexual. Additionally, I am requesting electronic copies of any responses that the FCC sent to the above-mentioned complainants, if any such responses exist. I am focused on the content of the complaints and responses, and understand that any identifying personal information will be redacted to protect the individuals’ privacy.
In response to my FOIA request, the FCC delivered 461 pages of complaints that matched my specified criteria. I transferred the complaint information from its original PDF format into a spreadsheet, with one row for each individual complaint. Each entry contained some metadata, such as location (city, state, and ZIP code), the type of complaint–which were all “indecency,” the name of the show, and the specific medium (broadcast, cable, or satellite). However, all of this metadata is self-reported by the individual submitting each complaint, and is often in an inconsistent format, or entirely inaccurate and unreliable. I read the text of each complaint and filled in or updated those components of the metadata with more accurate information. In many instances, I found that individuals simply wrote titles such as “complaint,” “indecency issue,” or other broad descriptors for the name of the show, and had to rely upon information within the complaint text itself to fill in that information.
From there, I categorized each complaint as either “Pro-LGBT,” “Anti-LGBT,” or “Unclear.” For this, I made a subjective assessment of the nature of the complaint text to assign a category to each complaint. I relied upon the specific words used within the complaint, the tone of the language used–for instance the use of text that is written in all-caps, as well as an approximation of how upset the complainant was about the specific issue. For some complaints, making such an assessment was a simple matter. For instance, comments that stated “please remove all references to the LGBT community,” or referred to LGBT individuals and activities as “sinful,” or “offensive to children” were categorized as “Anti-LGBT.” On the other hand, some comments specified that certain materials that had been broadcast were disparaging to the LGBT community, such as instances of using the word “gay” as an insult others. These types of comments were categorized as “Pro-LGBT.” However, there were also many complaints that were not necessarily immediately pro- or anti-LGBT. For example, some complaints referred to depictions of sexual activity in certain television broadcasts. The activity in question was between individuals of the same sex, but it was unclear whether the individual was complaining about the inclusion of LGBT individuals, the depiction of sex in general, or a combination of the two. In these cases, I relied upon other indicators–such as the tone of the language as mentioned above. However, I erred on the side of caution and used the distinction “unclear” rather than trying to ascribe too much of my own personal interpretation onto the comments of others. Of course, with this type of a subjective assessment, there is a certain degree of personal interpretation that will inadvertently be present.
As part of categorizing the 440 complaints, I also chose to omit several complaints that were clearly outside the scope of my project. There was a small handful of complaints that were entirely unrelated to the regulatory activity of the FCC, including one complaint which began with “I think I may have just uncovered the racket in our area, that destroys human beings for their own lusting and giggles. in 1985 I think they killed a girl from my high school, named carter manion.” Additionally, many complaints were included that referred to content that was broadcast on FM, AM, or XM satellite radio, despite the fact that my request was for television complaints only. Their inclusion was likely the result of individuals mistakenly selecting the “television” option when submitting their complaints. Finally, there was a small number of complaints that were included within the data that were about television, but were unrelated to my request for specific mention of “the terms LGBT, lesbian, gay, bisexual, trans or transsexual.” For instance, I received multiple complaints about Gayle King and a morning news show. The complaints did not include the above terms, but were possible included because an FCC employee simply searched for the phrase “gay,” regardless of if it was within another word or not. For all records that were not directly within the scope of my request, I overlooked them in the later assessment of “local community standards.”
Finally, I used the included location metadata and the online Google Maps service to create a geographic representation of where each indecency complaint was submitted from. I used the categorization of “anti-LGBT,” “pro-LGBT,” or “unclear” to color each individual map color. Though the complaints did not include specific street addresses, the ZIP codes enabled me to map each complaint within a reasonable degree of accuracy and provide a general visualization of where complaints are from, and the nature of each individual complaint. I then used this data to assess the notion of “local community standards.” Even within the same geographic area, the perceptions of what is being shown on television vary greatly, and it is incredibly difficult to discern the specific boundaries between any such specific “community.”
It is important to note that there is an important distinction between obscene and indecent speech. Though the two terms are often used interchangeably in casual conversations, but there are different legal standards for what speech is obscene and what speech is indecent. Most importantly, obscene speech is not “within the area of constitutionally protected speech or press.” Thus there are specific standards for what is considered obscene, similar to the loose and subjective definitions of indecent speech. However, this paper examines specifically with indecent speech only, and not obscenity.
History of the FCC
“For the purpose of regulating interstate and foreign commerce in communication by wire … there is hereby created a commission to be known as the ‘Federal Communications Commission’, which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this Act.”
- The Communications Act of 1934
The FCC is a government agency that has existed for nearly 100 years. Over several decades, its role in influencing and regulating communication technologies within the United States has changed significantly. As new technologies have been introduced and become widespread, the Commission’s involvement with creating and enforcing policy has evolved as well. Fundamentally, the FCC’s legal authority to regulate media content stems from its founding principle that the airwaves belong to the public, and cannot be owned by a single individual or corporation. Instead, the FCC grants licenses to specific segments of the radio spectrum for use. The Commission’s regulatory power arises from ensuring that the licensed public airwaves are used to serve the general needs and interests of the public. Thus, even as mass communication technologies continue to develop and become more widespread, the FCC’s regulatory role has necessarily continued to be closely intertwined with issues of content regulation and balancing the Constitutional protections of free speech. The history and development of the FCC and its role to regulate indecent speech and content on public airwaves contextualizes my contemporary examination of consumer complaint data and sets up many of the issues that the Commission is currently facing as the Internet and other mass communication technologies continue to develop and expand.
In the early 1900s, there was very little regulation on mass communication technologies. This was especially a problem for radio, where broadcasters in the same area had the potential to interfere with one another’s frequencies. However, there were significant concerns about allowing the government to intervene with the new medium, given that the public airwaves were considered to be the property of the American people, and not explicitly owned by the government.¹⁰ However, a compromise was reached with the Radio Act of 1927 and the creation of the Federal Radio Commission (FRC). This new agency had the authority to grant licenses to certain frequencies, and exert a certain degree of control over those broadcasts. As part of ensuring that radio broadcasts furthered the public interest, the Radio Act specifically restricted the broadcast of “obscene, indecent, or profane language.”¹¹ However, the FRC was specifically prohibited engaging in censorship, a provision which was carried over into the newly created FCC with the Communications Act of 1934.
The 1934 law expanded the regulatory authority of the FCC from just radio waves to cover communication by both “wire and radio.”¹² The law also slightly adapted the structure of the FRC, but otherwise maintained its authority to grant licenses to specific segments of the public airwaves. As television technology developed and became widespread, the FCC was also responsible for granting licenses for TV broadcasts as well as radio. In 1941, WNBT-TV in New York was granted the first TV license, and several other stations soon appeared throughout the nation.¹³ However, by 1948 it was apparent that the FCC had inadvertently granted too many licenses for frequencies within the same region, which resulted in signal interference and poor quality broadcasts.¹⁴ This dilemma, which emerged following the rapid expansion of television channels and networks after WWII, placed the stability of the television “landscape” in danger. Hundreds of applications for channel space made it impossible to properly sort and organize the networks. In order to better design the “blueprint” of American television, the FCC placed a “freeze” on channel licenses. During the four-year freeze, over 700 applications were put on hold, and the FCC emerged as the governor of the so-called “community of television.”¹⁵ The 1948 licensing freeze represents the complicated nature of the FCC’s regulatory authority. It is clear that even in the 1940s, there was emerging a single TV community in the United States. Through both government action, and general economic market forces, individual and unique communities were becoming homogenized.¹⁶ However, our modern legal definitions of indecent content rely upon those very boundaries and distinctions between various “local community standards.”
Finally, in recent decades, the FCC’s regulatory power has evolved further. While its reach has spread to new mediums and new methods of mass communication, its specific regulatory authority has also been diminished in certain ways. For instance, the 1984 Cable Communications Act amended the 1934 Communications Act to explicitly give the FCC regulatory authority over cable TV. The “communications by wire” section of the original act referred to technologies such as telegraph and telephone, but it is possible that it could be extended to apply to cable TV as well. However, one of the founding principles behind the FCC is the notion that there is limited availability of public airwaves, and that the FCC was needed to allocated the scarce resource. Furthermore, the pervasive nature of radio and TV broadcasting was used as a basis to allow the FCC to restrict indecent speech in certain broadcast mediums.¹⁷ However, these characteristics do not directly apply to cable TV, so it is unclear how much the 1934 Act was intended to grant the FCC these authorities. The FCC’s regulatory authority was further expanded with the 1996 Telecommunications Act, which explicitly gave the Commission power to begin regulating Internet communication. However, the 1996 act also represented a policy of massive regulation, and removed many barriers of entry into the market.¹⁸ While such deregulation was promoted as a means to enable more small companies to enter mass communication markets, it also enabled large corporations to consolidate their ownership of multiple smaller stations and become the massive media conglomerates that exist today.
Currently, access to the Internet is rapidly increasing and continues to connect distant communities to one another. It is extremely commonplace for an individual to carry a smartphone in their pocket that can readily access the world’s knowledge, communicate with people over great distances, and deliver instant access to media content. As online communication technologies continue to proliferate, they also serve to unify–and possibly homogenize–unique communities, and further blur the distinctions between what constitutes an individual “local community.”¹⁹ As these changes play out, the FCC is continuing to redefine its role as well. Especially with recent debates over net neutrality and the merger of AT&T and Time Warner, it remains to be seen what the FCC’s specific role will be in regulating the future of the Internet. However, as demonstrated by the FCC’s past, it is evident that the government agency will likely remain involved, to an extent, with the regulation and restriction of indecent speech. The small sample of FCC Consumer Complaint data that I have assembled underscores the complicated nature of regulating indecent TV content, as well as the challenges that the FCC will face as much of TV distribution continues to move into online spaces.
Indecency and Content Regulation in the United States
“Broadcasts extend into the privacy of the home, and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.”
Jacobellis v. Ohio 378 US 184 (1964)
Though freedom of speech is an important founding principle of the United States, the nation’s history is actually filled with instances where the right to express one’s own opinions has been explicitly challenged by the government. From the Alien and Sedition of Acts of 1798, to the US PATRIOT Act of 2001, monitoring and controlling what citizens say is just as American as the belief in our freedom of speech itself. Especially during the 21st century, the government’s position and role in regulating speech was negotiated and defined. Particularly in relation to the regulatory authority of the FCC, specific limits on indecent and obscene speech developed and shaped the government’s complex relationship with free speech.
With the initial creation of the FCC in 1934, there were some concerns as to whether government regulation of radio violated the First Amendment. In 1943, the Supreme Court confirmed that the Communications Act was Constitutional, and that the licensing system was an appropriate way to serve the public interest and limit the scarce airwaves.²⁰ It also confirmed that the denial of a broadcast license did not represent a violation of a broadcaster’s First Amendment rights. Interestingly, there were some instances of content regulation during the early history of the FCC.²¹ However, this regulation of speech was self-censorship by broadcasters and not action taken by the government.²²
In 1949, the FCC established an important policy that defined the next several decards of regulatory policy, the Fairness Doctrine. This policy outlined the FCC’s standards that it expected television and radio broadcasters to uphold. It required broadcasters to air controversial issues of “public importance” as well as offer contrasting viewpoints to issues that are presented. The reasoning behind the Fairness Doctrine was a combination of the scarcity of public airwaves and the public need for access to information. The FCC argued that the rights of the public were more important the rights of broadcasters, and thus it had the authority to create certain content requirements for broadcasters.²³ This assessment was made based on the principle of limited airwaves, which was a valid concern at the time. However, with the Internet and other modern communication technologies, this scarcity is no longer as limiting a factor, and thus the FCC’s logic for being able to exercise control over broadcast content may no longer be as founded.
In addition to the FCC’s own policies, actions by other branches of government also influenced its authority to regulate television content, as well as affected the definitions and First Amendment implications of the phrase “indecent speech.” Through a series of Supreme Court Cases, the government slowly developed its standards for determining what constitutes indecency. In 1964, the definition of indecency and profanity was fairly open-ended, and lacked any specific definitions. Steward famously wrote that he was unable to write a specific definition of what constitutes obscene content, “but I know it when I see it.”²⁴ The Court was reluctant to specify specific characteristics of indecent or obscene speech, fearing that doing so would lead to an unconstitutional restriction on freedom of speech. Even in 1973 with the establishment of the Miller Test, the Supreme Court continued to resist the establishment of any specific definitions. As discussed previously, the current standard used to determine if speech is obscene, and thus not protected by the First Amendment, remains ambiguous and open to broad interpretation.²⁵ This case applied to indecent speech in general, and it was not until a few years later until it was specifically applied to the FCC and its authority to restrict broadcasters’ ability to broadcast certain television content. The 1978 case FCC v. Pacifica argued that broadcast media such as radio and television were “uniquely pervasive” and thus necessitated a different level of protection by the government.²⁶ Due to the fact that young children had a high likelihood of being exposed to radio and television broadcasts, the FCC argued that it had the right to restrict the broadcast of indecent content. This case is what clarifies the FCC’s authority to limit the protections of the First Amendment, though notably this authority is based on the notion of broadcast media as being “uniquely pervasive.” Again, significant developments in mass media and communication technologies will likely lead to a reassessment of whether such protections from the FCC are necessary or proper.
Toward the end of the 1900s, the FCC’s involvement with content regulation expanded somewhat. Though its regulatory authority was expanded, the number of cases where it actually took action against specific broadcasters was actually fairly limited. For instance, the 1996 Telecommunications Act created the V-chip requirement, intended to further protect children from inappropriate content by forcing the industry to create a television ratings system. However, this ratings system was still industry-driven, showing that television content was still largely self-regulated and the government exercised a limited role in the process. The largest factor to determine what content was suitable for broadcast was not the FCC’s policies, but instead what advertisers were willing to pay for or have their name on. Even in prominent cases of indecent content being broadcast, the FCC chose to only levy fines and there were no punishments such as suspending licenses.²⁷ For most large media corporations, these types of fees are likely too small to have any significant long-term financial impact. As through much of the FCC’s history with indecency and content regulation, its regulatory bark is way worse than its bite.
As it turns out, the definition of indecency is actually really narrow. Though it has evolved and changed over the nation’s history, the subjective legal tests that determine what is or is not indecent remain sufficiently open-ended that most television content can be interpreted as falling outside the bounds of this definition. Similarly, though the FCC is often viewed as exercising somewhat draconian control over television broadcasts, it actually has very limited involvement in actual content regulation.
Contemporary FCC Indecency Complaints
My FOIA request resulted in four hundred thirty-two indecency complaints, which were then categorized as pro-LGBT, anti-LGBT, or unclear position. Two hundred sixty-two of the indecency complaints were a pro-LGBT position, one hundred five were anti-LGBT, and sixty-five were unclear in their position. From this data alone, one might conclude that in the United States, LGBT content and its community are generally accepted for television broadcast on public airwaves. However, the standards for indecency require consideration of local community standards, and not standards that apply nationwide.
As such, the above categorizations were correlated to their geographic location, based on ZIP Code. This information was used to generate a map of indecency complaints, their position, and their geographic location.

Green = Pro-LGBT || Red = Anti-LGBT || Yellow/Orange = Unclear Position

There is no meaningful correlation between location and the position of the complaints that were received. In other words, there is no significant connection between a local community and its position on LGBT content in television broadcasts. This provides significant complications to the definitions of television indecency, which require consideration of such local community standards. Given the lack of any cohesive position in any local community, it is nearly impossible to use the legal standards of the Miller Test to assess whether there is any validity to the indecency complaints. For both pro-LGBT and anti-LGBT angles, there is no real connection to locality, so determining what the local community standards really are becomes an exercise in futility.
The complicated task of sorting complaint comments and attempting to define local community standards is made more difficult by the fact that many individuals have little understanding of what the FCC’s regulatory power actually is. In fact, many individuals that submitted complaints seemed to think that the FCC had power over employment decisions at private corporations, such as TV networks. One complaint stated, “colbert needs to be fired” and that, “IT IS TIME TO STOP THIS FILTH AND CLEAN UP OUR AIR WAYS.”²⁸ In another complaint, the individual requested that the FCC take action against TV writers, “to stop portraying lesbianism on daytime tv as if it is commonplace.”²⁹ In both of these examples, the complaint was about employees at a private corporation, CBS, unaware that the FCC has no ability to fire employees that are not their own.
Beyond comments that misinterpreted the role and regulatory scope of the FCC, the complaints that I studied differed greatly from one another. This contributed to the difficulty of determining local community standards. I was able to broadly group certain complaint comments and their own indecency standards based on the opinions that they expressed. However, making any such groupings based on actual location–as dictated by the “local community standards” requirement–was a fruitless effort.
The majority of complaints received were in support of the LGBT community, and did not believe that such content qualified as indecent for television broadcast. Generally, these types of complaints were upset with language that certain television programs used in reference to LGBT communities. Such complaints expressed concern that the casual use of terms such as “gay,” “fag,” or “dyke” in a negative manner were actually disparaging to LGBT communities. There were also a significant number of pro-LGBT comments that were submitted directly in response to Stephen Colbert’s “cockholster” comment on The Late Show. Their complaints centered around the notion that using the implication of homosexual oral sex between Trump and Putin demonized members of the LGBT community. One such comment stated that “Hateful, pointed homophobic insults should not be passing as jokes.”³⁰ The majority of pro-LGBT comments were language-based, and about the use of specific words that could be considered homophobic. There were no pro-LGBT comments that referred to the actual depiction of any sexual activity as indecent or inappropriate for television. However, it is important to remember that these complaints were grouped by their opinion, and that there was no connection between this position and physical location, or any so-called “local community standards.”
On the other hand, comments that took an anti-LGBT position generally complained about actual graphic depictions of sexual activity. Complaints that were about the depiction of sex on television generally were categorized as unclear. It was only complaints that specifically mentioned the broadcast of homosexual sexual activity that were categorized as anti-LGBT. Comments in this category were largely more hateful than the pro-LGBT contents, and used more inflammatory language to directly attack and marginalize LGBT communities. One comment stated, “I’m sick of all the gay programming! Your [sic] supposed to be protecting us against indecent material . What a joke.”³¹ In another comment, the individual wrote, “You are destroying children’s lives with confusion and visuals of perversion allowing these shows to BLATENTLY depict homosexuality.³² For nearly all of these anti-LGBT complaints, the complaint was not that sexual content was being broadcast, but that homosexuality specifically was being acknowledged, and possibly legitimized.
The disparity between pro-LGBT and anti-LGBT comments, as well as the general lack of consistent standards in any given location underscore the fact that there were no real consistent opinions about indecent television content. Furthermore, communities and their standards tend to form around shared opinions and identities, and not necessarily just based on location. From my analysis of FCC complaint data, there was no significant connection between physical location and opinions of television of indecency. Instead, the complaints merely represented individual persons expressing their own opinions about the content they viewed on TV. It is only through the summation of all of these individuals’ opinions that larger national trends can be determined. However, these larger trends in community standards vary so greatly that it is nearly impossible to rely on them for the establishment of television indecency policies. Put more simply, groups are defined by values, not necessarily by location. Using local community standards for the basis of indecency regulation is a flawed and outdated model.
Conclusion
The development of mass media and online communication technologies have enabled different groups with different opinions to connect and interact, even over large distances. As such, communities are no longer defined by location, but by similarities in value systems and beliefs.. Because of this, the whole premise of using “local community standards” to assess television content as either indecent or appropriate is fundamentally flawed. Within one local area, community standards vary greatly, and attempting to “sample” the opinions of a single area to determine what is actually indecent is ineffective. Especially given my specific analysis of complaints that reference LGBT content and the community, even complaints received from the same area vary greatly. It would make more sense to “group” community members based on their position on LGBT content, instead of using their physical locations to make such distinctions. Thus, using physical location to determine the standards of indecency for LGBT content is entirely ineffective, which is potentially why the FCC has been reluctant to take any action in response to these specific complaints.
Furthermore, the FCC’s involvement in regulating actual TV content is misunderstood and misinterpreted more generally. Even though it accepts indecency complaints submitted by the public, it rarely actually takes any punitive action in response. The FCC remains more involved in the regulation of media infrastructure and technologies, and actually has very little involvement in content regulation. Especially as the Internet and other communication technologies become more widespread, the FCC will have less reason to regulate content specifically. It would be beneficial for the FCC to clarify this role to the public, and take steps to fully reduce its involvement in content regulation.
Notes
[1] “This Monologue Goes Out To You, Mr. President,” YouTube, accessed May 15, 2018, https://www.youtube.com/watch?v=HaHwlSTqA7s.
[2] Bryan Logan, “Stephen Colbert Unleashes All-Out Trump Takedown,” Business Insider, May 2, 2017, http://www.businessinsider.com/stephen-colbert-trump-vladimir-putin-cock-holster-2017-5.
[3] Jon Blisten, “Stephen Colbert Avoids FCC Penalties for Controversial Trump Joke,” Rolling Stone, May 23, 2017, https://www.rollingstone.com/tv/news/stephen-colbert-avoids-penalties-for-controversial-trump-joke-w483941.
[4] FCC, “The FCC and Freedom of Speech,” Federal Communications Commission, May 24, 2011, https://www.fcc.gov/consumers/guides/fcc-and-freedom-speech; FCC, “Obscene, Indecent and Profane Broadcasts,” Federal Communications Commission, December 11, 2015, https://www.fcc.gov/consumers/guides/obscene-indecent-and-profane-broadcasts.
[5] Miller v. California, 413 U.S. 15 (1973).
[6] “LGBT,” FCC Complaint (Charlotte, NC: Federal Communications Commission, May 4, 2016).
[7] “Freedom of Information Act,” 4 U.S.C. § 552 (1996).
[8] Roth v. United States, 354 U.S. 476 (1957).
[9] Lili Levi, “The FCC’s Regulation of Indecency,” First Reports (First Amendment Center, April 2008), https://www.freedomforuminstitute.org/wp-content/uploads/2016/10/FirstReport.Indecency.Levi_.final_.pdf.
[10] John E. Semonche, Censoring Sex: A Historical Journey through American Media (Lanham: Rowman & Littlefield, 2007), 180.
[11] Semonche, 180.
[12] “Communications Act of 1934,” 47 U.S.C. § 151 (1934).
[13] Levi, “The FCC’s Regulation of Indecency.”
[14] John S. Armstrong, “Constructing Television Communities: The FCC, Signals, and Cities, 1948–1957,” Journal of Broadcasting & Electronic Media 51, no. 1 (March 2007): 129–46, https://doi.org/10.1080/08838150701308119.
[15] Armstrong, 134.
[16] Pierre Bordieu, “On Television,” in Media and Cultural Studies: KeyWorks, ed. Douglas Kellner and Meenakshi Gigi Durham, Second Edition (John Wiley & Sons, Ltd., 1998), 253–59. Bordieu discusses the market forces that contribute to the homogenization of television audiences. He argues that economic incentives pressure television broadcasters to produce and distribute content that will appeal to as many people as possible, thus diminishing the distinguishing boundaries between individual communities.
[17] Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978).
[18] Levi, “The FCC’s Regulation of Indecency.”
[19] Marshall McLuhan, The Medium Is the Message (New York ; London ; Toronto: Bantam Books, 1967); Michael Elias, “The Village Has Grown Up: A Critical Examination of the Global Village Metaphor” (University of Oregon, 1997). In his book, McLuhan coins the term “Global Village” as a way of conceptualizing the changes that increased access to online communication technologies may bring about. He argues that such technologies will erase the limitations of geographic space and enable the entire globe to participate in one single and homogenized community. Elias responds to this model with the term “Global Metropolis,” and posits that while online communication may indeed connect distant communities and facilitate interactions that would otherwise be impossible, that certain boundaries between communities will nonetheless continue to exist.
[20] NBC v. United States, 319 U.S. 190 (1943).
[21] Levi, “The FCC’s Regulation of Indecency.”
[22] Jeremy Harris Lipschultz, Broadcast and Internet Indecency: Defining Free Speech, Lea’s Communication Series (New York: Routledge, 2008).
[23] Lipschultz.
[24] “Jacobellis v. Ohio,” Oyez, accessed March 14, 2018, https://www.oyez.org/cases/1963/11.
[25] Miller v. California, 413 U.S.
[26] Federal Communications Commission v. Pacifica Foundation, 438 U.S.
[27] Joel Roberts, “FCC OKs Bono’s F-Word Slip,” CBS News, September 17, 2003, https://www.cbsnews.com/news/fcc-oks-bonos-f-word-slip/; Bootie Cosgrove-Mather, “FCC Flip-Flops On Bono F-Word,” CBS News, February 25, 2004, https://www.cbsnews.com/news/fcc-flip-flops-on-bono-f-word/. At the 2003 Golden Globes. U2’s bono accepted the award and declared “this is really, really fucking brilliant.” Initially, the FCC ruled that this was merely a “fleeting expletive.” A year later they overturned their previous statement, and assessed a fine for the indecent speech.
[28] “Fire Colbert,” FCC Complaint (Port Richey, FL: Federal Communications Commission, May 4, 2016).
[29] “CBS Television Program, Young and the Restless,” FCC Complaint (Cary, NC: Federal Communications Commission, August 7, 2017).
[30] “Steven Colbert’s Late Show’s Homophobic Remarks,” FCC Complaint (Richardson, TX: Federal Communications Commission, May 2, 2017).
[31] “Gay Programming,” FCC Complaint (Myakka, FL: Federal Communications Commission, February 3, 2016).
[32] “Homosexual Kissing on NBC,” FCC Complaint (Chicago, IL: Federal Communications Commission, April 19, 2016).
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