Some years after that famous Hays Code… (II)

THE FCC AND INDECENCY REGULATION
Attempts to control the content of expression in the United States have been around longer than the government, and efforts to regulate indecent broadcasting began with the Federal Radio Commission (“FRC”). When Congress passed the Communications Act of 1934, it transformed the FRC into the FCC (Federal Communications Commission) and expanded the role of the agency from addressing signal interference to overseeing the development of telecommunications. It was this law that began the FCC’s foray into the regulation of obscenity and indecency. Today, regulation of broadcast content in the United States comes from several different sources, all of which inform the FCC and the parties subject to the FCC’s jurisdiction.

The FCC’s legal authority to regulate indecency is codified at 18 U.S.C. § 1464. At only twenty-eight words, the statute makes it a violation of federal law to broadcast obscene, indecent, or profane material. The condensed statute reads, “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.”

The statute’s enforcement provision provides the FCC with the right to imprison or fine parties found guilty of broadcasting violations. Until 1994, the statute contained a $10,000 cap on per violation fines. In that year, the maximum fine amount was raised to $27,500 per violation. In June of 2004, the FCC raised the amount to $32,500 to adjust for inflation. Now, the BDEA (Broadcast Decency Enforcement Act) provides for even greater fines against broadcasters who air indecent content Although 18 U.S.C. § 1464 prohibits the broadcast of obscene, profane, or indecent material by broadcasters, the federal government cannot completely expunge indecent material from the broadcast airwaves due to the Supreme Court’s recognition of such material’s limited First Amendment protection. Consequently, the FCC has established a safe-harbor period during the hours between 10 p.m. and 6 a.m., when children are unlikely to be among the viewing audience, wherein indecent material may be broadcast. Nonetheless, because the § 1464 proscription only constrains broadcasters, cable operators do not have to conform their indecent programming schedules to meet the safe-harbor requirements. Section 1464 provides little guidance for broadcasters facing enforcement for broadcasting ostensibly indecent material outside of the regulatory safe harbor. Such broadcasters may be subject to fines or forfeitures. Instead of containing specific guidelines, the provision serves as a general warning. For example, it contains no definition of the terms “obscene,” “indecent,” or “profane.”
And although the FCC has defined “indecent material,” it has done little else to further define or clarify the other terms contained in § 1464. In 2001 the FCC authored an Indecency Policy Statement to illustrate how indecency determinations are to be made. Under the 2001 policy statement, the FCC must make two determinations before it can conclude that material is indecent. First, the FCC must determine whether the material falls within the definition of “indecent content,” which specifically requires that the FCC determine whether the material involves sexual or excretory conduct. If the material does not, it falls outside the subject matter proscribed by the indecency regulations. However, if the material does involve sexual or excretory conduct, the FCC must make a second determination because sexual or excretory conduct is necessary, but not sufficient, to render material indecent. Thus, the FCC must also determine whether the broadcast was “patently offensive.”

Source: WHEN IS ENOUGH TOO MUCH? THE BROADCAST DECENCY ENFORCEMENT ACT OF 2005 AND THE EIGHTH AMENDMENT’S PROHIBITION ON EXCESSIVE FINES by AMY KRISTIN SANDERS, ESQ. * Assistant Professor, School of Journalism and Mass Communication, University of Minnesota-Twin Cities; Ph.D., University of Florida College of Journalism and Communications, 2007; J.D., University of Iowa College of Law, 2003.