The FCC last week announced a Consent Decree with a TEGNA subsidiary to settle an indecency complaint against a Spokane television station.  The FCC received a complaint about a “pornographic video” which the station admitted had run on a TV screen behind the station’s weathercaster that was visible to the home viewer for approximately 13 seconds during a weather report in 2021.  TEGNA agreed to make a $222,500 “voluntary contribution” to the U.S. Treasury as part of the settlement and to set up a 3-year compliance plan to ensure that the conduct was not repeated.

These penalties were imposed even though, from the description of the incident in the Consent Decree, it appeared that neither the station nor its employees were responsible for the objectionable content that ran on the visible TV screen.  According to the description of the incident, the objectionable video did not pass through the normal transmission chain at the station and did not come from any of its equipment.  Instead, it appeared that someone was able to use an unsecured wireless network at the station to “cast” the video from an outside device to the video monitor behind the weathercaster.  Apparently, the controls on that video monitor were set to permit this wireless access.  This case appears to teach broadcasters several lessons.

First, and most obviously, security of the broadcast chain is paramount.  Following the incident, TEGNA disabled the unsecured network and access to all video monitors so no wireless access outside the normal broadcast chain could occur.  In the past, there have been other incidents where broadcast transmissions were captured by outside parties through unsecured parts of the transmission path.  In one case, access was allowed through unsecured internet access to the Studio Transmitter link of several radio stations around the country, allowing non-station content to be inserted into the chain leading to the transmitter and cutting off the station’s own programming (see our article here about a subsequent government warning about these vulnerabilities).  In another case, access was obtained through the EAS system of several television stations allowing the broadcast of fake alerts warning of a zombie attack.  The FCC itself is looking at requiring all stations to report regularly to the FCC about how its systems are protected so as to secure emergency broadcast channels but, even without such a mandate, incidents like these highlight the importance of security of the transmission chain for every broadcast station.

Second, this case seems to reinforce the notion that, at the current time, indecency enforcement seems to be reserved for the most egregious cases.  In this case, there is no indication that TEGNA contested the indecent nature of the material broadcast.  In the last major case in recent years where a similarly substantial penalty was imposed ($325,000 – see our article here), the indecent nature of the content was not challenged (though, that case, there were arguments about the fleeting nature of the content – less than 3 seconds – and the fact that the improper images were not prominent on most television sets).  Many will remember the FCC’s indecency enforcement regime earlier this century when a wide array of programming was under scrutiny by the FCC (see, for instance, our articles here, here, and here).  That came to an end with the Supreme Court’s 2012 decision not to review a decision in the Janet Jackson case, where the Court of Appeals found that the FCC’s indecency standard was too unclear to be enforced (see our article here, and our article here about a prior Supreme Court case finding that the FCC had not given proper notice of its decision to fine stations for “fleeting expletives”) .  While the FCC in 2013 asked for comments on how to adopt clearer standards to define indecency, no resolution of those issues was ever reached (see our articles here, here and here).  Given the ambiguity in the lines drawn about what is permitted and what is prohibited, it appears that, for now, most indecency enforcement is confined to instances where, no matter where the line is drawn, the content would be impermissible – in other words, a continuation of the “egregious cases” policy that has been in place since 2013.

But this case shows that indecency is still a concern – and it is a concern no matter the politics of the FCC that may be faced with a complaint.  Broadcasters need to be aware of this decision, and they need to take steps to secure their systems to avoid any recurrence of this situation at their stations.