CBS Tells FCC That Stephen Colbert's Trump Jokes Weren't Indecent Nor Obscene

The broadcaster looks to avoid any "character" test in a license review.
Screengrab/The Late Show with Stephen Colbert
'The Late Show With Stephen Colbert'

Apparently, the FCC's decision not to fine CBS for crude jokes made by The Late Show's Stephen Colbert isn't the final word on the subject. In a comment to the agency posted on Tuesday, CBS stood behind Colbert's joke-filled rant that included a remark about how the only thing President Donald Trump's mouth is good for "is being Vladimir Putin's cock holster."

"The Late Show, like all CBS news and entertainment programming, is entitled to the full force of the law’s safeguards for protected speech," stated the network's comment. "The broadcast in question was not indecent, let alone obscene."

FCC chairman Ajit Pai got way too much attention for telling a radio interviewer earlier this month that the agency would be following "standard operating procedures" by reviewing indecency complaints. Unsurprisingly, given that the hours between 10 p.m. and 6 a.m. are considered to be a "safe harbor" zone for broadcasters, the FCC later concluded there was "nothing actionable." 

So why is it now coming up?

The FCC is reviewing the transfers of licenses in a merger between CBS Radio and Entercom.

One of the objectors is Ed Stolz, the head of Royce International Broadcasting, which owns some radio stations in California. He has filed a petition to deny, but after the controversial Late Show episode aired — which led to a #FireColbert backlash on social media — Stolz requested the opportunity to submit new information based on what Colbert said.

Specifically, Stolz pointed to a footnote in a 1986 FCC policy briefing that stated, "The Commission acknowledges that there may be circumstances in which an applicant has engaged in nonbroadcast misconduct so egregious as to shock the conscience and evoke almost universal disapprobation. Such misconduct might, of its own nature, constitute prima facie evidence that the applicant lacks the traits of reliability and/or truthfulness necessary to be a licensee, and might be a matter of Commission concern even prior to adjudication by another body."

In other words, an obscure character test that in theory, at least, would permit the FCC to go after fake media.

For many reasons, including the shrinking agency highlighted here, that probably won't occur, but nevertheless, CBS saw fit to respond to Stolz.

The broadcaster makes another point beyond safe harbors.

"CBS bleeped and obscured Colbert’s mouth at the point where Stolz alleges that Colbert uttered an obscenity so that a viewer could not hear or even lip-read what he said," writes CBS' lawyer. "Thus, the allegedly obscene expression was never broadcast."

The comment then refers to the FCC's announcement that the broadcast wasn't actionable. One of the footnoted citations in CBS' comment is the Parents Television Council.

"It was crude. It was indecent," stated the PTC. "But it was protected speech. The FCC’s decision not to sanction CBS for Stephen Colbert’s May 1st monologue on The Late Show was the proper outcome..."

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