So this is what they mean by “the money shot.”
The Federal Communications Commission served notice Monday that it intends to fine a Roanoke, Va., television station $325,000 — the maximum allowed by law — for a July 2012 news broadcast that, for three seconds, included a screen-capture of a sex act from a video-porn website. The Commission called the fine the highest ever assessed against a single broadcast station for an indecency violation.
The station, WDBJ-TV, intended to broadcast a non-explicit video clip of a former adult-film actress as part of a newsfeature about the woman’s new (clothed) role, as a member of the local volunteer rescue squad. But a corner of the video clip included a couple performing a sex act that is probably best left undescribed here, except to note that the station’s explanation — that the image was too small to be noticed — doesn’t say much for the male actor’s future in the porn business.
WDBJ President and General Manager Jeffrey A. Marks, in a statement posted to the station’s website, called the fine “an extraordinary burden on protected speech,” noting that the amount is exponentially higher than the $7,000 statutory baseline for an indecency violation. Marks said the station plans to contest the FCC order.
The FCC’s indecency enforcers have been largely dormant since the Supreme Court’s 2012 ruling in FCC v. Fox Television, Inc. In that case, the Court unanimously decided that the FCC violated due process in changing its enforcement standards to make “fleeting” curse-words and glimpses of nudity punishable without giving broadcasters fair warning of the change.
Questions will be raised about the FCC’s decision in the WDBJ case because the scene, lasting only three seconds, could easily be described as “fleeting.” Nevertheless, because the case involves the performance of a sex act and the exposure of genitals, and not (as in other “fleeting” nudity cases brought by the FCC) merely a flash of breasts or buttocks, the Commission will insist that any duration is too much during 6 p.m. family viewing hours.
Critics also will argue that the FCC has (again) muddied the enforcement waters by taking action against a news broadcast. Commission guidelines indicate that news programming about matters of public concern deserves extra latitude that might not be afforded to pure entertainment programming. But the Commission has resisted exempting news categorically from its indecency standards, and today’s ruling makes clear that there is no free pass for newscasts — even when the exposure is brief and unintended.