hsig opines:
If I had a definition of "X-rated" from the FCC then I would be glad to provide you with one, but that is precisely my point: the FCC does not say exactly what is and what is not OK. The rules and regulations are written in very murky and ambiguous language, which is why it is so hard to know exactly what it is that they forbid
Here's the text of the
the FCC rules and regulations governing obscenity, indecency and profanity. I included it here becuase I think it would be a good idea to try to understand the legal foundation that lead to this.
It is a violation of federal law to broadcast obscene programming at any time. It is also a violation of federal law to broadcast indecent or profane programming during certain hours. Congress has given the Federal Communications Commission (FCC) the responsibility for administratively enforcing the law that governs these types of broadcasts. The Commission may revoke a station license, impose a monetary forfeiture, or issue a warning, for the broadcast of obscene or indecent material.
Obscene Broadcasts Are Prohibited at All Times
Obscene speech is not protected by the First Amendment and cannot be broadcast at any time. To be obscene, material must meet a three-prong test:
* An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
* The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
* The material, taken as a whole, must lack serious literary, artistic, political, or scientific value.
Indecent Broadcast Restrictions
The FCC has defined broadcast indecency as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities.” Indecent programming contains patently offensive sexual or excretory references that do not rise to the level of obscenity. As such, 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 broadcast during times of the day when there a reasonable risk that children may be in the audience.
Consistent with a federal statute and federal court decisions interpreting the indecency statute, the Commission adopted a rule pursuant to which 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 subject to indecency enforcement action.
Profane Broadcast Restrictions
The FCC has defined profanity as including language that “denote[s] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.”
Like indecency, profane speech is prohibited on broadcast radio and television between the hours of 6 a.m. to 10 p.m.
For the record, profane speech specifically includes the "seven words" along with a couple more that were added after the Pacifica court case. The FCC is pretty clear on this...no profanity in prime time. Based on this standard, there's a case to be made regarding Saving Private Ryan. If artistic merit or historical accuracy are acceptable defenses, then there will be the peace.
The FCC pushes...but nobody has pushed back. Companies don't fear the monetary fines. It's the risk of losing a license that they fear. And on a greater political scale, the risk is an increase in the level of regulation like lowering the number of stations a company may own -- overall or in a particular market. So monolithic is the business, nobody wants to rock the regulatory boat. So they pay the fine and move on.
They have the right of appeal. If you feel you've received an unfavorable decision by the FCC, you may appeal in federal court. Still not happy with the outcome? Next stop, the Supreme Court, provided they're willing to hear your case. Companies don't appeal because they won't win. They can't challenge the constitutionality of the law, and they can't say it wasn't obscene or indecent or profane based on the standards, because it was! They're guilty! That's why they don't appeal! In Stern's case, in Opie and Anthony's case, the broadcasts were indecent based on the standards, and likely obscene.
In the past, the FCC has held the licensee solely responsible for programming content, not the air talent. If the licensee refuses to fight back, the FCC will continue to wield its power as it sees fit. Furthermore, if a Howard Stern is held personally responsible, will he personally challenges the FCC? Very few people have the financial resources to mount a court battle against a regulatory agency. He might. But his only defense will be to argue that the broadcast in question was NOT indecent or obscene or profane based on the existing standards.
Saving Private Ryan included profanity in prime time. If push comes to shove, will ABC be the one to shove back on behalf of its own stations and its affiliates?
tony b.
