Indecency/Safe Harbor

• FCC v PACIFICA (1978)

The FCC may use an indecent for broacast standard to regulate the content of broadcast programming. Under the FCC's indecency standard, the broadcast of George Carlin's "seven dirty words" monologue is a violation of the indecency standard.

New Indecency Enforcement Standards Infinity Broadcasting Corp of Pa., 3 F.C.C. Rcd. 930, , 62 P&F 1218 (1987)

• limited "safe harbor" to midnight to 6 a.m. window.

• "Patently Offensive" standards measured by sensibilities of a nation-wide average broadcast viewer:

1. Is the expression "vulgar" or "shocking"?

2. In what manner is the expression portrayed?

3. Is the expression "concentrated" and "repeated" or "fleeting" and isolated"?

4. The ability of the medium to separate adult from children?

5. The "merit" of the work?

ACT v. FCC (1988) "ACT I"

• Affirmed the FCC's expanded definition of "indecent"

• FCC may regulate indecent broadcasting only to the extent necessary to protect unsupervised children.

• Court found the indecency window to be arbitrary rule making.

• FCC had not proved a factual basis for midnight to 6 a.m. "channeling of indecent programming."

Congressional Ban on Indecent Speech, Pub. L. No. 100-459, 608, 102 Stat. 2186, 2228 (1988)

• Established a 24-hour ban.

ACT v. FCC (1989)

• D.C. Court of Appeals stayed the effective date of the ban pending resolution of the litigation.
  
• FCC continued to enforce ban prior to 8 p.m.

• Remanded to FCC for fact finding.

In the Matter of Enforcement of Prohibition Against Broadcast Indecency in U.S.C. sec. 1464 (July 1990)

• 24-hour ban is "narrowly tailored" to promote government interest in protecting children.

• "Children" - 17-years-old or younger.

• "reasonable risk" that children are in the audience at all times.

• warnings would not effectively protect children.

• rejected scrambling/decoding technology.

• Adults have alternatives for receiving programming.

• Market-specific rating defense.

Public Telecommunications Act of 1992, Pub. L. No. 102-356, 106 Stat. 949 (1992).

Section 16(a) required the FCC to promulgate a new rule barring indecent material during the broadcast hours from 6 a.m. to midnight, but allowing public broadcast stations that go off the air at or before midnight an additional two hours (between 10 p.m. and midnight) during which they may broadcast "indecent" material.

• 1993 FCC Order:

Followed PTA of 1992 and articulated three goals to justify the regulations:

(i) "ensuring that parents have an opportunity to supervise their children's listening and viewing of over-the-air broadcasts,"

(ii) "ensuring the well being of minors" regardless of parental supervision,

(iii) protecting "the right of all members of the public to be free of indecent material in the privacy of their homes."

• ACTv. FCC , (D.C. Cir. 1993) [ACT II]

Ban violates the First Amendment

• Failure to narrowly tailor their efforts to advance these interests.

• The Interests of adult audience not properly balanced with interest in protecting children.
  
• "More broadly, we are at a loss to detect any reasoned analysis supporting the particular safe harbor mandated by Congress."

ACT II Vacated, 15 F.3d 186; 1994 U.S. App. LEXIS 6438 (1994)

• The D.C. Circuit stayed FCC's enforcement of the midnight to 6:00 a.m. safe harbor pending decision in ACT II rehearing. FCC continued to enforce an 8:00 p.m. to 6:00 a.m. safe harbor.

Act v. FCC, 58 F.3d 654; 1995 U.S. App. LEXIS 16078 (D.C. Cir. 1995) ACT III
Challenge to the constitutionality of section 16(a) of the Public Telecommunications Act of 1992,. Section 16(a) provides that, with one exception, indecent materials may only be broadcast between the hours of midnight and 6:00 a.m. The exception permits public radio and television stations that go off the air at or before midnight to broadcast such materials after 10:00 p.m.

• The Court accepted the government's argument that it has a compelling interest in protecting children under the age of 18 from exposure to indecent broadcasts. That interest, the Court says, is not just to assist parents but also includes a broader interest in protecting children.
  
• It also found that absent the provision creating a broader (10:00 p.m. to 6:00 a.m.) safe harbor for noncommercial broadcasters, the "channeling" of indecent broadcasts to the hours between midnight and 6:00 a.m. would not unduly burden the First Amendment.

• However, the different standards for commercial and non-commercial broadcasters proved fatal to the government's position. The Court said "the distinction drawn by Congress between the two categories of broadcasters bears no apparent relationship to the compelling Government interests that section 16(a) is intended to serve;" therefore the court found "the more restrictive limitation unconstitutional."
  

The case was remanded to the FCC "with instructions to revise its regulations to permit the broadcasting of indecent material between the hours of 10:00 p.m. and 6:00 a.m."

In the Matter of Enforcement of Prohibitions Against Broadcast Indecency ,GC Docket No. 92-223

Regulation of Obscenity, Indecency and Profanity

INDECENCY COMPLAINTS and NALs: 1993 – 2005

HOUSE APPROVES HIGHER FINES FOR BROADCAST INDECENCY

FCC Plans Fines in Broadcast Indecency Cases