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Is FCC reaching if it goes after Fox's `Our Little Genius?'

February 22, 2010 |  2:30 pm

If a television show never aired, can the Federal Communications Commission investigate whether the show violated government rules?

No, that's not an ontological question. The FCC, as we reported over the weekend, is looking into "Our Little Genius," a quiz show that Fox shelved late last year after the network was informed by renowned producer Mark Burnett that some funny stuff had gone on behind the scenes. Apparently some of the contestants may have been coached about the material that would be asked and a wary Fox and Burnett pulled the plug.

BURNETT.jpj Usually, the FCC only investigates something after it has aired. If "Our Little Genius" had aired it's a pretty safe bet that -- if the allegations about the show are true -- the show might have found itself in violation of government regulations.

But the idea that it may look to penalize Fox for a show it decided was not worthy of broadcast has caught many Washington insiders by surprise.

At issue may be how one interprets the FCC's Communications Act with regards to quiz and game shows. Here is part of the section that will keep the FCC and lawyers for Fox working overtime. I have put in bold the area that may have the FCC thinking it has room to maneuver. Of course, I am not a lawyer, just a hack who spent a lot of years covering the commission and D.C.

Prohibited practices in case of contests of intellectual knowledge, intellectual skill, or chance. 

(a) It shall be unlawful for any person, with intent to deceive the listening
or viewing public--
(1) To supply to any contestant in a purportedly bona fide contest
of intellectual knowledge or intellectual skill any special and secret
assistance whereby the outcome of such contest will be in whole or in part
prearranged or predetermined.
(2) By means of persuasion, bribery, intimidation, or otherwise, to
induce or cause any contestant in a purportedly bona fide contest of
intellectual knowledge or intellectual skill to refrain in any manner from
using or displaying his knowledge or skill in such contest, whereby the
outcome thereof will be in whole or in part prearranged or predetermined.
(3) To engage in any artifice or scheme for the purpose of
prearranging or predetermining in whole or in part the outcome of a
purportedly bona fide contest of intellectual knowledge, intellectual skill, or
chance.
(4) To produce or participate in the production for broadcasting of,
to broadcast or participate in the broadcasting of, to offer to a licensee for
broadcasting, or to sponsor, any radio program, knowing or having
reasonable ground for believing that, in connection with a purportedly bona
fide contest of intellectual knowledge, intellectual skill, or chance
constituting any part of such program, any person has done or is going to
do any act or thing referred to in paragraph (1), (2), or (3) of this
subsection.

Seems like a stretch, but one could try to interpret that bold section to mean that it doesn't matter that the show never aired. A lot seems to hinge on "to" and "of." We reviewed this section with one veteran communications attorney who agreed that this would likley be the FCC's argument for a regulatory hook if it decides to proceed.

The idea that a broadcaster could in theory face an investigation for a show it made that it deemed not worthy for broadcast because it may have violated FCC rules seems, uh, bizarre. However, if the FCC wants to use "Our Little Genius" as a way to investigate this entire genre, this may be the ticket.

We're betting instead that after spending lots of time and money, the FCC will say in several months that it has no grounds for any investigation. But it wouldn't be Washington if a bunch of money wasn't spent and a bunch of paper shuffled before reaching that conclusion.

-- Joe Flint

Related story:

FCC to probe `Little Genius'

Photo: Mark Burnett. Credit: Brian Vander Brug/Los Angeles Times
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