Super Bowl expletive unlikely to bring new crackdown.

Story by Inside Radio

What a difference nine years can make for indecency enforcement. It was the 2004 halftime “wardrobe malfunction” that set off a firestorm, ultimately ending in potential $500,000 per-violation fines for radio and TV stations. But after a fleeting expletive made it to the airwaves during Sunday’s televised game, the outcry is much more subdued.

The Parents Television Council, which is pushing the FCC to take a harsher stance with broadcasters, is hoping the agency will get tough on CBS-TV after a delay failed to catch Baltimore Ravens quarterback Joe Flacco’s telling a teammate the win was “f—ing awesome” during the post-game frenzy. The group also wants the agency to begin fining some of the stations mentioned in 1.6 million pending indecency complaints dating back nearly a decade.

While on the surface it may seem like a fresh example of a so-called fleeting expletive — something the U.S. Supreme Court ruled last June the FCC can fine stations for — broadcast attorney John Garziglia sees a fundamental difference from the 2004 incident. “One was a scripted halftime program that was clearly entertainment and the other was an off-the-cuff remark in the glare of excitement of winning the Super Bowl,” he says. Garziglia thinks the FCC will get complaints — but predicts the agency will ultimately decide it is covered under the tacit breaking news exemption.

CBS said they only use the delay during pre-game, halftime, and post-game coverage. If the FCC were to go after CBS or its TV affiliates, the case would be complicated by the fact that East Coast stations aired the word after 10pm inside the safe harbor period.

Garziglia fears that if the FCC does take action over the latest errant expletive, it will only serve to increase fears in broadcasters. “It’s a chill for anybody that airs high school or college sports,” he says.

Indecency is a Pandora’s Box that FCC chairman Julius Genachowski seems content to leave closed, according to many observers. Attorney Andy Schwartzman, a veteran Washington player, thinks Sunday’s Super Bowl case is unlikely to become a poster child for tougher standards. “I think this is a low priority for the FCC, and that in any event there is sufficient uncertainty about the enforceability of the existing standards that the Commission wouldn’t want to use this as a test case,” he says. In the wake of last year’s Supreme Court ruling upholding the FCC’s power to go after stations for indecency, Genachowski directed the Enforcement Bureau to focus its resources “on the strongest cases that involve egregious indecency violations.”

But so far no fines have been announced, infuriating groups like the Parents Television Council. “The FCC must step up to its legal obligation to enforce the law,” PTC president Tim Winter says.

Garziglia says such a slip-of-the-tongue could come back to bite radio is by further burying the FCC under even more paperwork. The backlog of indecency complaints already tops 1.5 million. “The staff has said informally that they’re going to start dismissing the complaints, but I haven’t seen any evidence of it yet,” Garziglia says.

Broadcast attorneys say that the most painful downsides of inaction — delaying license renewals and station sales — have been worked around. Rather that put an operator in a sort of purgatory, the FCC has used tolling agreements that amount to I-O-Us if or when any action is ever taken.