Broadcast Decency: The Issue

A 2005 study conducted by the Pew Research Center found that 61 percent of Americans say they are very concerned over what children see or hear on TV. Two-thirds also believe that sex and violence on TV gives children the wrong idea about what is acceptable in society. Further, of those surveyed, 75 percent "favor tighter enforcement of government rules on TV content during hours when children are most likely to be watching."

The Federal Communication Commission (FCC) and Its Mission

The FCC is responsible for the task of managing and regulating the public airwaves. Perhaps the best kept secret regarding television broadcasters is that the government grants them conditional licenses to use the public airwaves. The law maintains that broadcasters must serve the public interest and not merely their own.

Because of First Amendment freedoms, the FCC cannot preemptively tell broadcasters what they can and can't air in advance (censorship being defined as prior restraint by a government entity), but the Commission has the ability to fine broadcasters who violate the law and even revoke their licenses. According to the FCC:

"We are authorized to fine a station or revoke its license if it has, among other things, aired obscene language, broadcast indecent language when children are likely to be in the audience, broadcast some types of lottery information, or solicited money under false pretenses." "The Public and Broadcasting," FCC, June 1999, https://apps.fcc.gov/edocs_public/attachmatch/DA-99-1099A2.pdf (12 March 2003).

The FCC also makes clear that the definition of "obscene language" includes non-verbal communication.

What is Prohibited?

Federal law prohibits obscene programming on broadcast and cable networks at any time. To be considered obscene, broadcast material must meet the qualifications set forth in standards established by the Supreme Court. They state:

  1. [A]n average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
  2. the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
  3. the material, taken as a whole, must lack serious literary, artistic, political or scientific value.

The FCC is also charged with regulating indecent speech. This is speech or material that does not rise to the level of obscene but is still considered harmful to minors and society. The FCC

The FCC states that it "has defined broadcast indecency as language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." "Obscene and Indecent Broadcasts," FCC, 11 March 2003, (12 March 2003).

It is important to note that the FCC only enforces rules against indecency that occurs between the "safe harbor" hours of 6:00 a.m. and 10:00 p.m. Unfortunately, even then, enforcement is rare.

What about Cable?

The laws against broadcast indecency do not apply to cable. Since broadcaster signals are delivered through the public airwaves, they are held to a higher standard than is content transmitted over a secure and privately installed cable. The FCC has also determined that satellite providers are exempt from broadcast decency standards.

The Role of Local Affiliates

Since the FCC grants operating licenses only to local broadcasters and not the networks that produce TV shows, the FCC applies obscenity and indecency prohibitions only to the broadcast affiliates responsible for airing an offensive program. FCC guidelines state:

The First Amendment and federal law generally prohibit us from censoring broadcast material and from interfering with freedom of expression in broadcasting. Individual radio and TV stations are responsible for selecting everything they broadcast and for determining how they can best serve their communities. …Stations are not required to broadcast everything that is offered or suggested to them. "The Public and Broadcasting," FCC, June 1999.

These rules allow greater responsibility and flexibility for local stations, as well as give communities greater control over local broadcasting standards.

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