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William Davenport had been on the job for just a week when he encountered what can only be referred to these days as “The Breast.” The body part in question belongs, of course, to pop star Janet Jackson, who gave 90 million U.S. prime time television viewers a split-second shot of her anatomy during a raucous performance with fellow singer Justin Timberlake at Super Bowl XXXVIII. Davenport, a bespectacled 35-year-old lawyer, heads up a small division inside the Federal Communications Commission’s Enforcement Bureau that investigates complaints about indecent material broadcast over the public airwaves. Davenport’s division decides whether to deny, dismiss, or investigate complaints. The job is about as buttoned-down as it gets: tackling enforcement issues from the bowels of the FCC bureaucracy. But the bodice-ripping, big-game show has placed Davenport and his 20-lawyer team at the center of an increasingly intense political fight over deteriorating standards on broadcast TV and radio. Since the Super Bowl aired, commission staffers have logged over 200,000 complaints from viewers. To put that number into perspective, the agency registered 240,000 complaints for all of 2003. “It certainly makes you step back,” Davenport says of the reaction to the Super Bowl show. FCC commissioners have weighed in as well, and Chairman Michael Powell is calling for a “thorough and swift” investigation of the entire halftime spectacle, condemning it as “classless, crass, and deplorable.” All of which means Davenport is getting a baptism by fire as head of the Investigations and Hearings Division, with pressure to crack down on broadcast indecency coming from the public, conservative political groups, and his own bosses. But Davenport says the volume of complaints does not come as a complete surprise. Complaints about indecency on the airwaves have grown exponentially in the last few years � from 346 in 2001 to the 240,000 of 2003. “There’s been a significant change,” says Davenport. “TV has just exploded.” ‘BUBBA THE LOVE SPONGE’ Much of the dramatic uptick can be traced to the Web site of the Northern Virginia-based Parents Television Council. The site allows visitors to submit indecency complaints directly to the FCC. A spokeswoman for the council says the group has funneled nearly 170,000 formal complaints to the commission, including more than 22,000 about the Super Bowl show alone. Among the programs that generated the most outrage in 2003 was a live NBC broadcast of the Golden Globe Awards show during which U2 singer Bono proclaimed, “This is really, really fucking brilliant.” That prompted an indecency complaint against NBC and its affiliates by the FCC. The Investigations Division decided late last year that the network did not violate broadcast standards because Bono did not use the word in a sexual context. In late January, FCC Chairman Powell proposed that the commission reverse the ruling. Bono, however, may have been lucky. In 1995, Infinity Broadcasting was fined $1.7 million for various violations by radio host Howard Stern. In two recent cases, the commission cracked down hard on broadcast companies that aired indecent material. On Jan. 26, the commission proposed a $715,000 fine against Clear Channel Communications for obscenities on its “Bubba the Love Sponge” radio program, one of the largest fines imposed by the commission for a broadcast. Just three days earlier, the FCC had proposed a $27,500 fine against Young Broadcasting of San Francisco Inc. for a morning news broadcast in which a shot of full-frontal male nudity was aired during a live interview with performers from the show “Puppetry of the Penis.” The station said it was an accident and apologized on air. It is just the second time the commission found a television broadcast to be indecent. Despite the recent fines, neither cultural conservatives nor organizations championing freedom of expression are happy about the way the FCC deals with indecency claims. Former FCC Commissioner Gloria Tristani, a Democrat who crusaded for stiffer enforcement of indecency penalties, says she frequently sparred with the Investigations and Hearings Division over its decisions not to pursue cases she thought deserved the agency’s attention. Tristani, who resigned in September 2001 to challenge New Mexico Republican Sen. Pete Domenici in the 2002 election, argues that the Investigations Division “wanted a proven case” before it pursued a complaint, often requiring tapes and transcripts of the offending broadcasts. Robert Peters, president of the conservative, New York-based Morality in Media, argues that commissioners, no matter how much they might talk about cracking down on indecency on television and radio, rely heavily on the career government lawyers in the Enforcement Bureau for recommendations about which obscenity complaints to pursue. “Enforcement policy doesn’t change an awful lot,” says Peters. “For the most part the Enforcement Bureau has only been willing to donate a tiny amount of energy to this problem.” But Marjorie Heins, head of the Free Expression Policy Project, a New York-based think tank that monitors media censorship, worries that the FCC might go too far. “Powell has obviously shifted from a more laissez-faire approach to a more aggressive approach in response to political pressures,” Heins says. “But I think the FCC is aware that they’re very vulnerable to the constitutionality of censoring the broadcast media.” FLOODED WITH COMPLAINTS The FCC’s Davenport says that to determine which complaints to investigate, division lawyers look to the federal indecency statute, which Congress gave the FCC the power to administratively enforce; the commission’s own guidelines; and 20 years of case law. The division then decides whether to deny, dismiss, or investigate complaints. But the increasing volume of complaints is stretching the division’s small staff. The division balances its job of poring over often-raunchy radio and television content with more mundane tasks, including keeping tabs on whether public broadcasters are giving their underwriters too much airtime, and serving as trial staff in formal commission hearings. Davenport says he is hoping to get more staff, though it’s not clear if the FCC is budgeting for an increase for the division. “The chairman is working hard to try to get us more people,” says Davenport, joking that with all of the work, the division may need 100 new lawyers. About a half-dozen staffers, including program analysts, are looking into the Jackson incident. But Davenport wouldn’t talk specifically about the Super Bowl show because of the ongoing investigation. Clearly, though, it’s been an unusual experience for a new division chief. A former Preston Gates Ellis & Rouvelas Meeds associate, Davenport joined the FCC in 1999 and has served as legal adviser to the chief of the Enforcement Bureau, as well as deputy chief and assistant chief of the Investigations Division. He says that although the uproar over the Super Bowl halftime entertainment has been a remarkable initiation to his new job, the reaction to what happened was hardly unexpected. “It doesn’t come as a complete surprise,” says Davenport. “This is something that has been brewing for a long time.” And the pressure on Davenport and his colleagues is only likely to intensify. A bill introduced Jan. 21 by the chairman of the House Energy and Commerce Subcommittee on Telecommunications and the Internet, Fred Upton (R-Mich.), and co-sponsored by a bipartisan coalition would increase indecency fines tenfold. Both the White House and Chairman Powell have voiced support for the legislation, which would raise the maximum fine per incident to $275,000. And Rep. Doug Ose (R-Calif.) has introduced a bill that would prohibit broadcasters from using seven common curse words on air, regardless of context. Later this week, both the Senate Commerce Committee and the House Telecommunications Subcommittee are scheduled to hold hearings on broadcast decency standards. As indecency issues become increasingly politicized, some see a danger for commission staffers. Elliot Mincberg, legal director for the D.C.-based People for the American Way, a liberal advocacy group, says commission staffers like those in the Investigations and Hearings Division have an important role in screening cases for review. But those lawyers can also be punted in the partisan gaming that surrounds enforcement of decency standards, he says. “Indecency enforcement is a huge political football,” Mincberg says. “And these government officials get put on the line.”

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