By the end of this presentation, you should be able to:

u  Understand “the press” as it is currently understood in the context of the First Amendment

u  The FCC and its regulatory mission

u  Generally define Indecency and Profanity in a regulatory sense

u  Identify which media are, and are not, regulated by the FCC (as it relates to content)

u  Recall at least two examples of indecency/profanity as identified by the FCC

u  The First Amendment

u  The FCC

u Obscenity, Indecency, Profanity

u What’s the difference

u Why should we care

u  To what do they apply?

u What are some examples?

The First Amendment u  Congress shall make no law respecting

an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

u  Today’s presentation is about the application of this amendment to modern media

What is the FCC and Why does it exist?

u  Originally the Federal Radio Commission (FRC), formed in 1927 to regulate radio “as the public convenience, interest, or necessity requires (PICAN).”

u  Major purpose: to issue and deny broadcast licenses to eliminate clutter on the dial. Frequencies were stepping on each other and the market could not work it out.

u  KFKB – fraudulent claims by a doctor, protested by AMA. Led to license renewal being denied.

u  FRC abolished in 1934.

u  Created in 1934. PICAN mission continued.

u  Broader powers of regulation in areas of content and commerce of radio, as well as regulation of television, telephone and other means of transmission (which eventually would include the internet). Still regulated frequency infringement.

u  Powerful enough to order the breakup of NBC into two networks (second network now known as ABC).

u  Regulating language and images become a prominent part of the FCC in the 1970s and continue to be prominent and problematic.

Indecent Broadcast Restrictions

•  The FCC has defined broadcast indecency (since 1987) 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.” Indecent programming contains patently offensive sexual or excretory material that does not rise to the level of obscenity. Prior to 1987, it tried to crack down on indecency without a clear definition of it.

Excerpt from George Carlin’s “Class Clown” album (1972)

•  Played on WBAI in New York

•  On-air disclaimer prior to playing the excerpt

•  Father complained that his son was in the car and that he was caught off-guard (didn’t hear the warning or tuned in after it)

•  FCC vs Pacifica – Supreme Court heard the case, ruling that it was indecent, not obscene and that the FCC could regulate indecency but only during certain hours when minors would likely to be in the audience (6am to 10pm)

•  The courts have held that indecent material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted in order to avoid its broadcast during times of the day when there is a reasonable risk that children may be in the audience.

•  Consistent with a federal indecency statute and federal court decisions interpreting the statute, the Commission adopted a rule that broadcasts -- both on television and radio -- that fit within the indecency definition and that are aired between 6:00 a.m. and 10:00 p.m. are prohibited and subject to indecency enforcement action.

u  Profane Broadcast Restrictions u  The FCC has defined profanity as

“including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” It has used this definition since 2004. It’s evolution will be discussed shortly

u  Like indecency, profane speech is prohibited on broadcast radio and television between the hours of 6 a.m. and 10 p.m.

u  What Can the FCC regulate?

u  The definitions we have discussed evolved from a time that preceded broadcast video and it is unclear how and where they may apply to nudity.

u  The FCC has tried, and failed, to take action in this area over the years, but a new case emerged this year that may succeed.

u  What Can the FCC regulate?

u  The FCC has generally decided that any variation of the word “fuck” is profane and it is a good bet that “shit” is also in that category. There is no definitive list of words you must avoid

u  It is possible for stations to be fined (up to $325,000 per utterance) for being indecent without using any curse words at all.

Bona Fide News appears to be an exception Not Indecent. Peter Branton, 6 FCC Rcd 610 (1991) (subsequent history omitted). Explicit )use of the word “fuck”) was an integral part of a bona fide news story concerning organized crime; the material aired was part of a wiretap recording used as evidence in Gotti's widely reported trial. The Commission explained that it did “not find the use of such [coarse] words in a legitimate news report to have been gratuitous, pandering, titillating or otherwise “patently offensive” as that term is used in our indecency definition.” 6 FCC Rcd at 610. (my emphasis added)

Swearing not necessarily required to be fined

KGB-FM, San Diego, CA “Candy Wrapper” Song

I whipped out my Whopper and whispered, Hey, Sweettart, how'd you like to Crunch on my Big Hunk for a Million Dollar Bar? Well, she immediately went down on my Tootsie Roll and you know, it was like pure Almond Joy. I couldn't help but grab her delicious Mounds, ... this little Twix had the Red Hots... as my Butterfinger went up her tight little Kit Kat, and she started to scream Oh, Henry! Oh, Henry! Soon she was fondling my Peter Paul, and Zagnuts and I knew it wouldn't be long before I blew my Milk Duds clear to Mars and gave her a taste of the old Milky Way. ... I said, Look ... why don't you just take my Whatchamacallit and slip it up your Bit-O-Honey.

Swearing not necessarily required to be fined

u  Indecent – NAL Issued. KGB, Inc. (KGB-FM), 7 FCC Rcd 3207 (1992), forfeiture reduced 13 FCC Rcd 16396 (1998) (forfeiture paid). See also Great American Television and Radio Company, Inc. (WFBQ(FM)/WNDE(AM)), 6 FCC Rcd 3692, 3693 (MMB 1990) (forfeiture paid) ("While the passages arguably consist of double entendre and indirect references, the language used in each passage was understandable and clearly capable of a specific sexual meaning and, because of the context, the sexual import was inescapable.

Gravitas matters

“Schindler’s List” complaint from Oklahoma Senator Tom Coburn

u  “Schindler’s List” is a film that depicted a historical view of World War II and wartime atrocities. The movie contained depictions of adult frontal nudity. Shown on NBC.

u  Not Indecent. WPBN/WTOM License Subsidiary, Inc. (WPBN-TV and WTOM-TV), 15 FCC Rcd 1838 (2000). The Commission ruled that full frontal nudity is not per se indecent. Rather, the “full context” of the nudity is controlling. Looking at “the subject matter of the film, the manner of its presentation, and the warnings that accompanied the broadcast,” the Commission held that the nudity in “Schindler’s List” was not actionably indecent.

This is just plain inconsistent

WFLA(AM), Tampa, FL Announcer Comments

u  Announcers allegedly referred to complainant, Chuck Harder, as “Suck Harder,” “Suck,” and “Suckie” throughout the broadcast and called the complainant a “useless piece of crap.” Also referred to complainant’s network, the Sun Radio Network as “Suck Harder Radio Network.” 

u  Not Indecent. Jacor Broadcasting of Tampa Bay, Inc., Renewal of License of Station WFLA(AM), 7 FCC Rcd 1826 (ASD, MMB 1992). Cited language was used in the context of a discussion of a radio network that provided programming to a station competitor and was found, in context, not actionably indecent.

u  2002-2003 u  FOX – Cher, Nicole Richie, Bono profanities.

u  CBS – Janet Jackson.

u  The Supreme Court heard arguments in 2011 from FOX and ABC, which sought to have rules eased or abolished.

u  Court rescinded fines but kept rules in place

u  2008-2014– FCC did not act on complaints

u  2015 – a former prosecutor joined the enforcement staff of the FCC and is trying to make up for lost time

The rules don’t apply (yet) to:

u  Cable or satellite TV

u  satellite radio

u  Internet

The rules apply to broadcast radio and broadcast TV only. The FCC has authority to regulate the means of transmission of these entitied but not the content.

The continued application of these rules seems untenable at this point but the future is not clear, though that can change with each incoming presidential administration.