FCC offers broadcasters guidelines to avoid on-air indecency

Tuesday, April 10, 2001

Radio aficionados seeking transcripts of some of the raunchiest broadcasts ever may not need to look any further than the Federal Communications Commission’s latest report on indecency.

The FCC released the report last week to clarify how it determines whether a radio bit or television program was too graphic to have been broadcast (and thus could prompt a warning or fine). The 28-page report includes a few dozen examples of questionable broadcasts to illustrate what the agency considers to be indecent. For example:

  • Repeatedly mentioning certain sexual parts — indecent
  • Accidental use of profanity — not indecent.
  • Howard Stern talking about his body parts — indecent.
  • A segment on Oprah Winfrey’s TV show about improving romantic relationships — not indecent.

Generally, the FCC explained that it bases decisions about indecency on how graphic the material is and how often it’s aired.

But one commissioner warned that the agency’s effort to bolster enforcement of indecency standards would raise new legal challenges.

“Technology, especially digital communications, has advanced to the point where broadcast deregulation is not only warranted but long overdue,” said Harold Furchgott-Roth. “In my view, the bases for challenging broadcast indecency has been well laid, and the issue is ripe for court review.”

Current law provides the FCC with the power to regulate on-air content. The Supreme Court upheld that power in 1978.

The court, in FCC v. Pacifica, said that although the First Amendment protects indecent speech, the commission can regulate the airwaves with only a few exceptions. In Pacifica, the court ruled in the FCC’s favor, allowing it to curb utterances of the famous “seven words” that can’t be said on the air.

The Pacifica case has remained substantially unchanged, despite a few lower court challenges and the Supreme Court’s decision in Reno v. ACLU striking down an indecency standard for the Internet but not for on-air broadcasts.

The current ban on indecent broadcasts applies strictly to those between 6 a.m. and 10 p.m., when children are most likely to be listening to the radio or watching television.

The commission’s new guidelines come seven years after a court settlement with Evergreen Media Corp., which contested an FCC citation of indecency partly because of confusion over the agency’s enforcement policies.

The guidelines explain that for the FCC to find a broadcast “indecent,” the material must fall within the scope of the commission’s definition: “Material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.”

But the commission noted that the agency applies community standards based on the average listener’s sensibilities and not solely on those of the person complaining.

Among the factors that help the FCC assess radio programming:

  • The explicitness or graphic nature of the description of sexual or excretory activities or organs. But just because the material offers double entendres or innuendo doesn’t mean it’s indecent.
  • Whether the material dwells on or repeats at length such content. The commission noted that references made by accident or in passing might not be deemed indecent.
  • Whether the material appears to pander, to titillate or to shock.

To clarify the guidelines, the report offers nearly two dozen cases where the commission’s enforcement bureau found that broadcasters aired indecent speech and another seven where it dismissed complaints.

For example, the FCC issued a warning to the Howard Stern Show for comments about lesbians, his genitalia and animal sex and fined a San Diego station for a song substituting the names of candy bars for sexual parts and acts.

The agency dismissed complaints against a station that kept referring to former President Richard Nixon as “Dick Nixon” and against two others where on-air announcers inadvertently uttered profanity.

The FCC doesn’t actively monitor broadcasts for indecency, instead relying on complaints from the public about programs. If the commission determines such a program is indecent, it can issue warnings, impose a fine or revoke a station’s license.

The National Association of Broadcasters, which represents thousands of the nation’s radio and television station owners, were reviewing the report.

“Our attorneys are looking at it, but I don’t think we’ve come up with an official response,” NAB spokesman Dennis Wharton said in a telephone interview. “It’s sort of a guideline for what you can say and can’t say. I really don’t think we’re going to have a statement about it.”

John Roberts, a founder and national director of the American Disk Jockey Association, praised the FCC’s efforts.

“I’m all for talking around stuff and innuendo, but there has to be a level of decency,” Roberts said by telephone. “Until there is a way to stop my daughter, who is 12 years old, from turning on that station, then that station should control itself and government should step in if necessary.”

Commissioner Gloria Tristani, in particular, has faulted the commission’s enforcement bureau repeatedly for failing to cite broadcasters for indecent speech. Over the past two months, she has highlighted at least a half-dozen dismissed complaints she felt should have resulted in warnings and fines.

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

Tristani voted against the guidelines describing it as a potential “how-to manual for those licensees who wish to tread the line drawn by our cases.”

Commissioner Susan Ness approved the guidelines but noted that broadcasters have the power to address indecency without any government intrusion.

“It is not a violation of the First Amendment for broadcasters on their own to take responsibility for the programming they air and to exercise that power in a matter that celebrates rather than debases humankind,” she told The Associated Press.

Furchgott-Roth voted for the guidelines but warned that their release would likely put the FCC on track for another court challenge to its authority to regulate on-air content. A traditional argument that on-air programming should be regulated because the broadcast spectrum is a limited resource, he said, is losing validity in this age of many choices.

“A competitive radio marketplace is evolving as well, with dynamic new outlets for speech on the horizon,” he said. “Because of these market transformations, the ability of the broadcast industry to corral content and control information flow has greatly diminished.”