Court upholds ‘potentially troubling’ indecency enforcement scheme

07/31/95

WASHINGTON, D.C.–Broadcasters cannot challenge FCC forfeiture procedures unless they can show that there has been a chilling of protected speech, the U.S. Court of Appeals (D.C. Cir.) held in mid- July.

A 2-1 majority rejected a challenge to the procedure by several broadcasters and public interest groups. The court dismissed the argument that the procedures for enforcement set forth in the Communications Act of 1934 lack appropriate safeguards, including prompt judicial review, and thus force broadcasters to conform to potentially unconstitutional restrictions upon their speech, they argued.

Currently, the FCC can assess civil or criminal fines against stations that broadcast indecent material. The process begins when the agency issues a notice of apparent liability to the broadcaster after the FCC receives a complaint from a listener or viewer. The broadcaster has 30 days to pay the proposed fine or respond otherwise.

Once the broadcaster has responded, or after 30 days have passed, the commission decides whether to issue a forfeiture order. FCC guidelines call for the agency to initiate forfeiture orders within 60 days. However, the broadcasters complained that on average it has taken nine months for the commission to make a decision and years to complete the entire appeals process in the federal courts.

The broadcasters and public interest groups argued that the delays have forced them to conform their conduct to meet FCC indecency standards, without being able to challenge the constitutionality of their application to the programming in question.

The majority noted that the FCC’s enforcement scheme is potentially troubling, but that the broadcasters had not shown it to be unconstitutional.

The court said that broadcasters could get judicial relief if they stated they would not pay a fine and the FCC immediately forwarded the case to the Justice Department for prompt litigation.

If the commission would not cooperate in expediting review, the broadcaster could seek a declaratory judgment. The court said that a broadcaster who refrains from airing material it believes is not indecent because of fear it would be subject to forfeiture would be entitled to prompt judicial relief. (Action for Children’s Television v. FCC; Media Counsel: Timothy Dyk, Washington, D.C.)

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.