Court Rules FCC’s Indecency Policy Unconstitutional
Decision could impact Commission’s entire indecency enforcement effort
The FCC has ruled in the past that the communications indecency rules that apply to broadcast programming also applies to Amateur Radio transmissions. This is because many youngsters participate in ham radio and the government has an interest in protecting them from what it considers harmful indecent material.
Indecency, obscenity, profanity ...and the law
The First Amendment to the U.S. Constitution is part of the Bill of Rights. The amendment prohibits the making of any law ...infringing on the freedom of speech or the press. Traditionally, print publications have the highest degree of First Amendment protection. It is basically legal to print anything. Over-the-air broadcasts enjoy the least. Broadcasters are subject to restrictions barring the transmission of indecent or profane material over the airwaves.
The FCC's power to regulate language content comes from the U.S. Criminal Code, Title 18, Section 1464. The statute was originally in Section 503(b) of the Communications Act and was moved to the Criminal Code in 1948. Section 1464 states: “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both.” A subsequent statute and court case prohibited the broadcast of indecent material from 6 a.m. and 10 p.m.
The law covering subscription TV broadcasting is different. It only holds that obscene material is illegal. Section 1468 states: “Whoever knowingly utters any obscene language or distributes any obscene matter by means of cable television or subscription services on television, shall be punished by imprisonment for not more than 2 years or by a fine in accordance with this title, or both.”
The FCC prohibits highly offensive curse words from being broadcast between 6 a.m. and 10 p.m. local time when children could be listening. The Supreme Court has upheld the FCC's rule banning questionable material when there is a "reasonable risk that children will be in the audience".
The so-called “safe harbor” refers to the time period between 10 p.m. and 6 a.m., local time. During this time period, a local broadcast station may air indecent material. But due to ham radio’s reach, and the fact that Amateur Radio communications frequently spans many time zones, the safe harbor constraints generally do not apply to ham radio communications.
There is also a constitutional issue involved. The FCC must be mindful of the First Amendment to the United States Constitution and Section 326 of the Communications Act, which prohibit the FCC from censoring material, or interfering with the public’s free speech rights.
What makes material “obscene?”
According to Supreme Court, unlike indecency, which is constitutionally permitted, obscenity is not protected by the First Amendment. There is no “safe harbor” for the broadcast of obscene material and it may not be broadcast at any time.
According to the U.S. Supreme Court, to be obscene, material must meet a three-prong test: (1) an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest (i.e., material having a tendency to excite lustful or erotic thoughts); (2) the material must depict or describe, in a patently offensive way, sexual conduct; and (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value.
What makes material “indecent?”
Indecent material contains sexual or excretory material that does not rise to the level of obscenity. For this reason, the courts have held that indecent material is protected by the First Amendment and cannot be banned entirely.
Material is indecent if, in context, it depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium. In each case, the FCC must determine whether the material describes or depicts sexual or excretory organs or activities and, if so, whether the material is “patently offensive.”
To be “patently offensive,” context is critical. The FCC looks at three primary factors when analyzing broadcast material: (1) whether the description or depiction is explicit or graphic; (2) whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs; and (3) whether the material appears to pander or is used to titillate or shock. No single factor is determines the decision. The FCC weighs and balances these factors because each case presents its own mix of these, and possibly other, factors.
“Profane language” includes those words that are so highly offensive that their mere utterance in the context presented may, in legal terms, amount to a “nuisance.”
Regulation of indecency
The FCC did not begin to spell out a policy on what the word “indecent” meant until 1975. It did so then in response to a complaint from a father who had heard a monologue on a New York radio station (owned by Pacifica) by comedian George Carlin, titled “Filthy Words.”
The post-Pacifica policy stood until March 2004, when the agency changed its direction. Thereafter, it said, even a single use of “the F-Word” on the air would be treated as illegal if it occurred between 6 a.m. and 10 p.m. The FCC also made it clear that, among other single banned words, the four-letter word meaning excrement was also banned.
Indecency on the Internet and subscription television
Congress attempted to expand indecency regulation to the Internet with the Communications Decency Act (CDA) of 1996. The law was passed as part of that year’s Telecommunications Act overhaul. It sought to impose criminal penalties on anyone who:
(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.
Upon passage, the ACLU, American Library Association and others challenged the constitutionality of the CDA. They claimed that it violated the public’s constitutionally protected speech (namely speech that is deemed indecent or "patently offensive"). The court struck down what it termed a "blanket restriction on speech" and ruled that, "The Internet is entitled to the full protection given to media such as the print press. It said that the special factors justifying government regulation of broadcast media do not apply." A subsequent high court decision (2000) extended similar protection to subscription television.
Despite the differences between regulating broadcasting – but not the Internet and cable television -- Congress continued to support a system of increased fines on broadcasters.
In 2006, Congress passed the Broadcast Decency Enforcement Act, increasing the maximum fines to "$325,000 for each violation or day of such violation, to a maximum of $3 million for any single act or failure to act." But on June 4, 2007, a the Second Circuit Court of Appeals held that fines for so called "fleeting expletives" could no longer be collected from companies.
FCC’s Indecency policy struck down
The agency changed its indecency approach after getting many complaints about two TV broadcasts. At the Billboard Music Awards in 2002, Cher unexpectedly blurted out the “F-word” and Nicole Richie said the “S-word.” And Rock singer Bono used a variation of “the F-Word” on the NBC-TV 2003 broadcast of the Golden Globe Awards.
In reaction to the complaints, the FCC on March 15, 2006 issued what it called an “omnibus order” that dealt with about fifty indecency violations ...including those of a single “fleeting” usage of a curse word. The fines totaled more than $4 million. Joined by other broadcasters, Fox TV sued the FCC for what they said was a constitutionally questionable and unevenly enforced indecency policy. The matter eventually ended up at the Supreme Court.
The high court remanded the case back to the New York-based Second Circuit Court of Appeals to consider the constitutionality of the policy. The appellant court heard the case again.
On Tuesday, July 13, 2010, the three judge panel unanimously struck down the FCC’s indecency policy which calls for heavy fines. In a 32-page ruling, the court said it “now holds that the FCC's policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives” heard over-the-air. The FCC’s order and the Commission’s underlying indecency policy was vacated.
The appellate court's decision was a major victory for broadcasters who have long complained the FCC's indecency rules violated First Amendment rights. In the past, the FCC has levied fines on scripted expletives but had been more lenient about accidental profanities uttered during live shows.
FCC commissioner Michael Copps said in a statement that the court's decision was "anti-family." The federal court’s ruling affects radio and TV broadcasting, but not cable, satellite, wireline or print media. It probably also impacts language used on-the-air by ham radio operators. Copps believes the FCC's policy is "constitutional and enforceable," and he called on the commission to "move forward immediately to clarify and strengthen its indecency framework.”
The Fox Network was “extremely pleased” with the Second Court’s decision. "We have always felt that the government's position on fleeting expletives was unconstitutional," Fox said in a statement, adding "the inherent challenges broadcasters face with live television ...must allow for the unfortunate isolated instances where inappropriate language slips through."
In the end, it seemed that the Federal Communications Commission may have to try again to explain why it thinks single fleeting utterances of the “F-word” and the “S-word” are unlawful communications at times when children may see and hear. The problem may be how, in legal terms, the Commission might fashion a ruling with that result.
The Second Circuit will undoubtedly not have the final word on this. The constitutional debate may again wind up back at the Supreme Court if the FCC appeals the decision. It appears that only another Supreme Court decision will provide a definitive answer to the problem of regulating over-the-air broadcast indecency.
Amateur Radio ....and indecency
The Part 97 amateur service rules used to prohibit the transmission of “...obscene, indecent or profane words or meaning.” For some unknown reason, the word “profane” was dropped from Section 113(d) in 1993 even though the criminal law (18 U.S.C. § 1464) and the FCC’s website still mentions all three.
The new rewrite of Section 113(a)4 now only prohibits “...obscene or indecent words or language.” The FCC has in the past held that the indecency rules applying to TV and radio broadcasting also apply to Amateur Radio transmissions. In making obscenity or indecency determinations, the FCC staff analyzes what was actually transmitted.
If the FCC determines that the curse words were obscene or indecent, it can issue a Notice of Apparent Liability (NAL), which is a preliminary finding that the law or the FCC's rules have been violated. Subsequently, this preliminary finding may be confirmed, reduced, or rescinded when the FCC issues a Forfeiture Order.
The fact remains, however, that the FCC has never issued a citation or NAL to a ham radio operator for solely violating its obscenity or indecency rules. The violation notice always mentions other accompanying offenses which can easily be proved ...and don’t involve controversial first amendment issues.