WASHINGTON, DC – In 2004, thanks largely to a single semi-exposed breast, the Federal Communications Commission swung into an unprecedented level of action against “indecency,” levying $7.9 million in fines for a variety of indecency-related infractions, ranging from broadcasting nudity to uttering curse words on the air.The flurry of fines generated much fretting within the entertainment and broadcasting industries, even prompting popular radio talk show host Howard Stern to move his operation onto satellite radio. The expectation was that there would be many more fines to follow, as the FCC unleashed a much-ballyhooed “crackdown” on indecency.

Thus far this year, however, the FCC has not followed through on their indecency enforcement, and through September had not levied a single dollar in such fines. It isn’t that there has been a reduction in complaints – the FCC reports 189,362 indecency complaints through September, generated from over 720 programs – so what has happened to the FCC’s campaign for decency?

FCC chairman Kevin J. Martin is an outspoken proponent of a cracking down on what he sees as lewd and profane content in television and radio broadcasts. He has supported the idea of issuing fines “per utterance”, rather than a single fine per show, regardless of the number of times profanity or indecency occurs in the show.

Martin has been unable to forge a majority among the four members currently sitting on the panel, which includes Martin, fellow Republican Kathleen Q. Abernathy, and Democrats Michael J. Copps and Jonathan S. Adelstein. The commission’s spot chair has been vacant since March; the Bush Administration last week nominated Republican Deborah Taylor Tate to fill the seat.

Interestingly, the division in the current panel does not generally break down along party lines. According to reports in the The Wall Street Journal, Martin’s usual ally is Copps, while Adelstein and Abernathy have taken contrary positions. The result has been a slow processing of complaints, which has led to the large backlog.

“It’s high time they started doing something,” L. Brent Bozell, president of the Parents Television Council, said in an interview with the Journal. The PTC, which encourages its members to use their website to send complaints to the FCC, was one of many groups that generated thousands of complaints about Janet Jackson’s breast-exposing Super Bowl halftime show appearance.

Bozell says he supports Mr. Martin, and believes that the FCC will act soon. Indeed, FCC officials planned to issue a package of fines to address a backlog of outstanding complaints and provide broadcasters with clearer guidelines regarding decency standards, possibly to include Martin’s “per utterance” change, but those fines and rules clarifications have yet to materialize.

The FCC hasn’t commented on any political logjams that may have slowed their process, and has instead assigned the slow progress to the large number of complaints.

“We are working very hard to address the backlog of complaints before us, which is fairly substantial,” Martin said in statement released by the FCC. “In clearing out this backlog, we are trying to act in a consistent and comprehensive manner.”

The reported number of complaints is an interesting animal in itself. In 2003, the FCC changed its accounting methodology, such that since then, each individual complaint is counted, rather than lumping all complaints about the same show or incident into a single complaint. That change is in large part responsible for the leap from 13,922 complaints in 2002 to 166,683 complaints in 2003. The Janet Jackson incident alone generated much of 2004’s record total of complaints.

The FCC has also conceded that their indecency complaint figures “may also include duplicate complaints or contacts that subsequently are determined insufficient to constitute actionable complaints.” That concession is of great concern for FCC watchdogs and critics.

The Progress & Freedom Foundation (PFF), funded by telecommunications, technology and media companies, recently published a study of the FCC’s complaint process that took note of the double-counting and suggested the numbers have been deliberately inflated for political purposes.

“The numbers are driving the process,” Adam Thierer, a senior fellow at the PFF told the Journal. “If they’re becoming the news, they better be accurate.”

It remains to be seen if a large number of fines will be issued to address this year’s backlog, but filling the fifth seat will likely clear the political impasse, and bring some of the changes Martin envisions to pass.

For their part, many broadcasters would just like clearer guidelines to follow – which sounds a lot like those of us in the porn industry with respect to obscenity laws.

“Broadcasters would like a little more clarity,” says Dennis Wharton, spokesman for the National Association of Broadcasters told the Journal. “If we know what the rules are, we’ll play by the rules.”