Looking at the FCC’s Indecency Rules – Does Anyone Know What’s Prohibited and What’s Permitted?

A Washington Post article published this weekend was titled “Is there anything you can’t say on TV anymore? It’s complicated.” And, it really is. The Post article presents a very good overview on the status of the FCC’s indecency rules. What will happen with those rules has been a matter of conjecture for several years, ever since the Supreme Court threw out the fines that the FCC had imposed for fleeting expletives that had slipped out in the Golden Globes and other awards programs, a case that also had the effect of negating that other fine for a “slip,” the notorious Janet Jackson clothing malfunction during her Super Bowl performance. Other than a well-publicized $325,000 fine on a Roanoke TV station for a short but very explicit image that slipped into the corner of a news report on a porn star turned first responder (see our article here on the Roanoke case), the FCC has been largely quiet on the indecency front since it launched a post-Supreme court proceeding to determine how they should amend their rules in light of the Court’s decision (see our summary here).

As we wrote when comments were filed in that proceeding, it drew much attention, with many commenters fearing that the FCC would back away from all indecency regulation on broadcast TV. In an election year like this one, don’t expect in the near future to see any definitive answers as to what is indecent and what is not. Neither political party wants to be tagged with being pro-smut by one side of the political spectrum, or anti-First Amendment expression by the other. But the Post article raises other very interesting questions about the difference in legal treatment between cable and broadcast programming, especially when so many viewers hooked up to some cable or satellite service don’t really understand the difference between cable network programming and that from broadcast sources.

We have written before about the fact that all cable – basic cable and premium channels – are not subject to the same indecency rules as are broadcast stations. While the government years ago tried to expand broadcast indecency regulation to cable channels, the Courts threw out such regulation, finding that cable was different than broadcast. In essence, as cable was invited into the home, and could be uninvited by cancelling a subscription, or specific channels could be blocked, the government’s interest in restricting adult programming did not overcome the free speech rights of cable systems to provide, and cable viewers to receive, that programming. As the Post article points out, to the extent that basic cable has not had an explosion of “F-bombs” or the more explicit programming that might be expected on HBO, Showtime or one of the other premium cable channels has been simply a matter of marketing and advertising. Providers have been leery of offending viewers or advertisers with more explicit programming on basic cable, and thus have not indulged in the manner that they legally could have though, as the article points out, that is changing gradually to meet audience demands for more adult programming.

Broadcast TV has no doubt itself evolved from the twin beds used by the married couple in the Dick Van Dyke show of so long ago, but the indecency rules still apply to broadcast stations, as evidenced by the big Roanoke fine. Broadcasters do have greater leniency after 10 PM to run more adult fare, but again driven by marketing and advertising concerns, most still refrain from using those four-letter words and other explicit content that you might see on cable channels. For instance, on an episode of the Stephen Colbert show that aired this week, the new book written by X Files actor David Duchovny was being discussed, and the four-letter word in the title was bleeped over a dozen times from the conversation, and the title of the book (and the lips of Colbert and Duchovny) were blurred to avoid even showing the word in any visual manner (see this article from USA Today with a link to the program).

In a recent seminar that I did for a College Broadcaster’s organization, the topic came up in connection with song lyrics. Apparently, some college radio stations are more adventuresome with their music selections in the 10 PM to 6 AM safe harbor hours. Certain genres of music where lyric choices are not G-rated are played during those hours. While they might bring complaints, the FCC should dismiss complaints for content aired during those hours (unless it were to veer from merely indecent to the far more explicit category of obscenity, which has no socially redeeming value and is always prohibited, but which the Supreme Court itself has had trouble defining in any clear, easy to apply test). Of course, stations need to be careful if they are located near a time zone barrier, as what may be permitted where it is broadcast could be a problem if it is received in an area where the time is an hour earlier.

So the Post got it right – the current state of broadcast indecency is complicated and will no doubt remain that way for the foreseeable future – and perhaps longer. But, as the Roanoke case shows, even without clear rules on all content, if a broadcaster goes too far, the FCC will crack down.