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FCC shares indecency rules with broadcasters

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  1. Content Restrictions

    NMU         WASHINGTON, D.C.         Broadcasting         Apr 12, 2001    

FCC shares indecency rules with broadcasters

  • The FCC lists guidelines for enforcement of its indecency rules and provides an analysis of its decisions under them.

It took seven years, but the Federal Communications Commission fulfilled the requirements of a 1994 court settlement with Chicago radio station WLUP by releasing guidelines which purportedly outline for broadcasters how to avoid crossing the indecency line.

The FCC on April 6 laid out some of the factors it considers when reviewing indecency complaints, but the agency did not institute any new policies in the guidelines.

Indecent programming is protected speech under the First Amendment, but can be regulated by such measures as restricting broadcast time to between 10 p.m. and 6 a.m., when children are least likely to watch.

Following its indecency rules the FCC said material is considered indecent if it describes or depicts sexual or excretory organs or activities and is patently offensive measured by contemporary standards for the broadcast medium.

The agency will assess the graphic nature of broadcast content in light of its full context, it said, noting that while explicit language in a newscast might not be patently offensive, persistent sexual innuendo with inescapable sexual meaning in another context might be.

It said significant factors in its indecency decisions to date are the explicitness or graphic nature of the material; whether the material dwells on or repeats at length the indecent content, and whether the material apparently is presented for pandering or titillating purposes or for shock value. The report analyzes individual decisions to date on indecency complaints in light of these considerations.

While the FCC does not monitor the airwaves for indecency, it does respond to public complaints. If the commission decides that certain material meets the definition of indecency, it can impose a warning, a fine or revoke a station’s license.

Gearing the guidelines also toward listeners, the FCC described the requirements to file a complaint, as well as the actions the FCC takes when it receives a complaint.

Not all the FCC commissioners accepted the guidelines. Commissioner Gloria Tristani issued a dissenting statement in which she said the policy “diverts this agency’s attention and resources away from the ongoing problem of lax enforcement, which is a pressing concern of America’s citizens.”

“It would better serve the public if the FCC got serious about enforcing the broadcast indecency standards,” Tristani said.

Tristani has released numerous press releases in the past three months criticizing the FCC for various indecency complaint dismissals.

Two other commissioners offered their opinions of the guidelines in separate statements.

Commissioner Susan Ness said the policy statement alone would not “solve the festering problem of indecency on the airwaves,” and urged broadcasters to restore a code of conduct. She also suggested that the commission streamline the complaint process.

While Commissioner Harold W. Furchtgott-Roth noted his amazement that it took the commission so long to produce the guidelines, he also predicted any action to enforce the indecency guidelines would “set the stage for a constitutional challenge” regarding the agency’s authority to regulate content.

Furchtgott-Roth said broadcast content restrictions should be eliminated. “Technology, especially digital communications, has advanced to the point where broadcast deregulation is not only warranted, but long overdue.”

The case that led to the guidelines began after the Chicago radio station refused to pay an indecency fine. The station’s owner, Evergreen Media Corp., which has since been taken over by Clear Channel Communications Inc., brought a lawsuit against the FCC saying it did not have the legal authority to enforce indecency standards. In February 1994 the two sides avoided a federal trial when Evergreen Media dropped its lawsuit and the FCC promised to issue the indecency guidelines for broadcasters.

(Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. 1464 and Enforcement Polices Regarding Indecency; U.S. v. Evergreen Media Corp; Media attorney Eric Bernthal, Washington, D.C.) EH

© 2001 The Reporters Committee for Freedom of the Press

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