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It’s Against the Law
It is a violation of federal law to air
obscene programming at any time. It is also a violation of
federal law to air indecent programming or profane
language during certain hours. Congress has given the Federal
Communications Commission (FCC) the responsibility for
administratively enforcing these laws. The FCC may revoke a
station license, impose a monetary forfeiture, or issue a warning
if a station airs obscene, indecent, or profane material.
Obscene Broadcasts Are Prohibited at All Times
Obscene material is not protected by the
First Amendment to the Constitution and cannot be broadcast at any
time. The Supreme Court has established that, to be obscene,
material must meet a three-pronged test:
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An average person, applying contemporary
community standards, must find that the material, as a whole,
appeals to the prurient interest;
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The material must depict or describe, in a
patently offensive way, sexual conduct specifically defined by
applicable law; and
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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
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.
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.
Profane Broadcast Restrictions
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.”
Like indecency, profane speech is prohibited
on broadcast radio and television between the hours of 6 a.m. and
10 p.m.
Enforcement Procedures and Filing Complaints
Enforcement actions in this area are based on
documented complaints received from the public about obscene,
indecent, or profane material. FCC staff will review each
complaint to determine whether it contains sufficient information
to suggest that there has been a violation of the obscenity,
indecency, or profanity laws. If it appears that a violation may
have occurred, the staff will start an investigation, which may
include a letter of inquiry to the broadcast station.
If the description of the material contained
in the complaint is not sufficient to determine whether a
violation of the statute or FCC rules regarding obscene, indecent,
and profane material may have occurred, FCC staff will send the
complainant a dismissal letter explaining the deficiencies in the
complaint and how to have it reinstated. In such a case, the
complainant has the option of re-filing the complaint with
additional information, filing either a petition for
reconsideration, or, if the decision is a staff action, an
application for review (appeal) to the full Commission.
If the facts and information contained in the
complaint suggest that a violation of the statute or FCC rules
regarding obscenity, indecency, and profanity did not occur, FCC
staff will send the complainant a letter denying the complaint, or
the FCC may deny the complaint by public order. In either
situation, the complainant has the option of filing either a
petition for reconsideration or, if the decision is a staff
action, an application for review (appeal) to the full Commission.
If the FCC determines that the complained-of
material was obscene, indecent, and/or profane, it may issue a
Notice of Apparent Liability (NAL), which is a preliminary finding
that the law or the FCC's rules have been violated. Subsequently,
this preliminary finding may be confirmed, reduced, or rescinded
when the FCC issues a Forfeiture Order.
Context
In making obscenity, indecency, and
profanity determinations, context is key. The FCC staff must
analyze what was actually aired, the meaning of what was aired,
and the context in which it was aired. Accordingly, the FCC asks
complainants to provide the following information:
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Information regarding the details of
what was actually said or depicted during the broadcast.
The complainant may choose the format for providing the
information, but it must be sufficiently detailed so that the
FCC can determine the words or language used, or the images or
scenes depicted during the broadcast and the context of those
words, language, images, or scenes. Subject matter alone is not
sufficient to determine whether material is obscene, indecent,
or profane. For example, stating only that the objectionable
programming “discussed sex” or had a “disgusting discussion of
sex” is not sufficient. Moreover, the FCC must know the context
when analyzing whether specific, isolated words or images are
obscene, indecent, or profane. The FCC does not require
complainants to provide tapes or transcripts in support of their
complaints. Consequently, failure to provide a tape or
transcript of a broadcast, in and of itself, will not lead to
automatic dismissal or denial of a complaint. Nonetheless, a
tape or transcript is helpful in processing a complaint and, if
available, should be provided.
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The date and time of the broadcast.
Under federal law, if the FCC assesses a monetary forfeiture
against a broadcast station for violation of a rule, it must
specify the date the violation occurred. Accordingly, it is
important that complainants provide the date the material in
question was broadcast. Indecent or profane speech that is
broadcast between the hours of 10 p.m. and 6 a.m. is not
actionable. Consequently, the FCC must know the time of day that
the material was broadcast.
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The call sign, channel, or frequency of
the station involved.
To take enforcement action for the airing of prohibited
material, the FCC must be able to identify the station that
aired the material. By providing the call sign, channel, or
frequency of the station, you will help us to quickly and
efficiently process your complaint. The name of the program, DJ,
personality, song, or film; network; and city and state where
you heard or saw the program are also helpful.
Any documentation you provide to the FCC
about your complaint becomes part of the FCC’s records and may not
be returned.
How to File a Complaint
The fastest and easiest way to file a
complaint containing this important information is to use the
FCC’s new electronic complaint Form 475B, available on our Web
site at
http://fjallfoss.fcc.gov/cgb/fcc475B.cfm.
You may also file a complaint by sending an
e-mail to fccinfo@fcc.gov;
calling 1-888-CALL-FCC (1-888-225-5322) voice, 1-888-TELL-FCC
(1-888-835-5322) TTY; faxing 1-866-418-0232, or writing to:
Federal Communications
Commission
Consumer & Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
445 12th St., SW
Washington, DC 20554.
If you are submitting a video tape, DVD, CD,
or other type of media with your complaint, please send it to the
following address to avoid mail processing damage.
Federal Communications
Commission
Consumer & Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
9300 East Hampton Drive
Capitol Heights, MD 20743
For more information regarding obscene,
indecent, or profane broadcasts, visit the FCC’s Enforcement
Bureau Web site at
www.fcc.gov/eb/oip/. For a list of the Commission’s
recent enforcement actions in this area, visit
www.fcc.gov/eb/oip/Actions.html.
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For More Information
For information on this
and other telecommunications-related issues, contact the
FCC’s Consumer Center in the following ways:
Internet:
www.fcc.gov/cgb
E-Mail:
fccinfo@fcc.gov
Telephone:
1-888-CALL-FCC (1-888-225-5322) voice
1-888-TELL-FCC (1-888-835-5322) TTY
Fax: 1-866-418-0232
Mail:
Federal Communications Commission
Consumer & Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
445 12th Street, SW
Washington, DC 20554. |
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Federal Communications Commission
