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Oners Ness and Furchtgott-Roth Issuing Separate Statements; Commissioner Tristani Dissenting and Issuing a Statement

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Oners Ness and Furchtgott-Roth Issuing Separate Statements; Commissioner Tristani Dissenting and Issuing a Statement Federal Communications Commission FCC 01-90 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Industry Guidance On the Commission’s ) File No. EB-00-IH-0089 Case Law Interpreting 18 U.S.C. § 1464 ) and Enforcement Policies Regarding ) Broadcast Indecency ) ) POLICY STATEMENT Adopted: March 14, 2001 Released: April 6, 2001 By the Commission: Commissioners Ness and Furchtgott-Roth issuing separate statements; Commissioner Tristani dissenting and issuing a statement. I. INTRODUCTION 1. The Commission issues this Policy Statement to provide guidance to the broadcast industry regarding our case law interpreting 18 U.S.C. § 1464 and our enforcement policies with respect to broadcast indecency. This document is divided into five parts. Section I gives an overview of this document. Section II provides the statutory basis for indecency regulation and discusses the judicial history of such regulation. Section III describes the analytical approach the Commission uses in making indecency determinations. This section also presents a comparison of selected rulings intended to illustrate the various factors that have proved significant in resolving indecency complaints. The cited material refers only to broadcast indecency actions and does not include any discussion of case law concerning indecency enforcement actions in other services regulated by this agency such as cable, telephone, or amateur radio. Section IV describes the Commission’s broadcast indecency enforcement process. Section V is the conclusion. II. STATUTORY BASIS/JUDICIAL HISTORY 2. It is a violation of federal law to broadcast obscene or indecent programming. Specifically, Title 18 of the United States Code, Section 1464 (18 U.S.C. § 1464), prohibits the utterance of “any obscene, indecent, or profane language by means of radio communication."1 Congress has given the Federal Communications Commission the responsibility for administratively enforcing 18 U.S.C. § 1464. In doing so, the Commission may revoke a station license, impose a monetary forfeiture, or issue a warning for the broadcast of indecent material.2 See 47 U.S.C. Sections 312(a)(6) and 503(b)(1)(D). 1 Obscene and profane language and depictions are not within the scope of this Policy Statement. 2 Although Section 1464 is a criminal statutue, the Commission has authority to impose civil penalties for the broadcast of indecent material without regard to the criminal nature of the statute. FCC v. Pacifica Foundation, 438 U.S. 726, 739, n. 13 (1978); see also Action for Children’s Television v. FCC, 852 F.2d 1332, 1335 (D.C.Cir. (continued….) Federal Communications Commission FCC 01-90 3. The FCC’s enforcement policy under Section 1464 has been shaped by a number of judicial and legislative decisions. In particular, because the Supreme Court has determined that obscene speech is not entitled to First Amendment protection, obscene speech cannot be broadcast at any time. 3 In contrast, indecent speech is protected by the First Amendment, and thus, the government must both identify a compelling interest for any regulation it may impose on indecent speech and choose the least restrictive means to further that interest. 4 Even under this restrictive standard, the courts have consistently upheld the Commission’s authority to regulate indecent speech, albeit with certain limitations. 4. FCC v. Pacifica Foundation, 438 U.S. 726 (1978), provides the judicial foundation for FCC indecency enforcement. In that case, the Supreme Court held that the government could constitutionally regulate indecent broadcasts.5 In addition, the Court quoted the Commission’s definition of indecency with apparent approval.6 The definition, “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 activities or organs,” has remained substantially unchanged since the time of the Pacifica decision.7 Moreover, the definition has been specifically upheld against constitutional challenges in the Action for Children’s Television (ACT) cases in the D.C. Circuit Court of Appeals.8 Further, in Reno v. ACLU, 521 U.S. 844 (1997), the U.S. Supreme Court struck down an indecency standard for the Internet but did not question the constitutionality of our broadcast indecency standard. Rather, the Court recognized the “special justifications for regulation of the broadcast media that are not applicable to other speakers.” Reno v. ACLU, 521 U.S. at 868.9 (Continued from previous page) 1988) (see n. 8 for full case history) (Commission has authority to sanction licensees for broadcast of indecent material). The Department of Justice is responsible for prosecution of criminal violations of the statute. 3 See Miller v. California, 413 U.S. 15 (1973), reh’g. denied, 414 U.S. 881 (1973); Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989); 47 C.F.R. § 73. 3999(a). Obscene speech is defined by a three-part test: (1) an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest; (2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. at 24. 4 Sable v. FCC, 492 U.S. at 126. 5 Id. at 748-50 (upholding Commission declaratory order that afternoon broadcast of a recording of a 12 minute monologue entitled “Filthy Words” was indecent as broadcast); see also 742-47 (Stevens, J.) and 757-61 (Powell, J.). 6 Id. at 732. 7 Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, 8 FCC Rcd 704, n. 10 (1993). See also Action for Children’s Television v. FCC, 852 F.2d 1332, 1338 (D.C.Cir. 1988) and Action for Children’s Television v. FCC , 58 F.3d 654, 657 (D.C. Cir. 1995) (see n. 8 for full case history). 8 Action for Children’s Television v. FCC, 852 F.2d 1332, 1339 (D.C.Cir. 1988) (“ACT I”); Action for Children’s Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991), cert. denied, 112 S. Ct. 1282 (1992) (“ACT II”); Action for Children’s Television v. FCC , 58 F.3d 654, 657 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 701 (1996) (“ACT III”). 9 These special justifications included the history of extensive government regulation of the broadcast medium, the scarcity of available frequencies at its inception, and broadcast’s “invasive” nature. Id. See also Commission’s (continued….) 2 Federal Communications Commission FCC 01-90 5. Although the D.C. Circuit approved the FCC’s definition of indecency in the ACT cases, it also established several restrictive parameters on FCC enforcement. The court’s decisions made clear that the FCC had to identify the compelling government interests that warranted regulation and also explain how the regulations were narrowly tailored to further those interests. In ACT I, the court rejected as inadequately supported the Commission’s determination that it could reach and regulate indecent material aired as late as 11:00 p.m., and remanded the cases involved to the Commission for proceedings to ascertain the proper scope of the “safe harbor” period, that is, the time during which indecent speech may be legally broadcast. Before the Commission could comply with the court’s remand order, however, Congress intervened and instructed the Commission to adopt rules that enforced the provisions of 18 U.S.C. § 1464 on a “24 hour per day basis.”10 The rule adopted to implement this legislative mandate was stayed and was ultimately vacated by the court in ACT II as unconstitutional. In 1992, responding to the decision in ACT II, Congress directed the Commission to adopt a new “safe harbor” – generally 12 midnight to 6:00 a.m., but 10:00 p.m. to 6:00 a.m. for certain noncommercial stations. The Commission implemented this statutory scheme in January 1993.11 Before this rule could become effective, however, the court stayed it pending judicial review. In 1995, the D.C. Circuit, en banc, held in ACT III that there was not a sufficient justification in the record to support a preferential “safe harbor” period for noncommercial stations and that the more restrictive midnight to 6:00 a.m. “safe harbor” for commercial stations was therefore unconstitutional. The court concluded, however, that the less restrictive 10:00 p.m. to 6:00 a.m. “safe harbor” had been justified as a properly tailored means of vindicating the government’s compelling interest in the welfare of children and remanded the case to the Commission “with instructions to limit its ban on the broadcasting of indecent programs to the period from 6:00 a.m. to 10:00 p.m.” ACT III, 58 F.3d at 669-70. The Commission implemented the court’s instructions by appropriately conforming Section 73.3999 of its rules.12 These changes became effective on August 28, 1995.13 6. Thus, outside the 10:00 p.m. to 6:00 a.m. safe harbor, the courts have approved regulation of broadcast indecency to further the compelling government interests in supporting parental supervision of children and more generally its concern for children’s well being. Act III, 58 F.3d at 661 (and cases cited therein).14 The principles of enforcement articulated below are intended to further these interests. (Continued from previous page) Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 15 FCC Rcd 303, 305-06 (1999) (“courts have repeatedly upheld the Commission’s indecency standard”). 10 Making Appropriations for the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies for the Fiscal Year Ending September 30, 1989, and for Other Purposes, Pub.
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