It is a violation of federal law to broadcast obscene, profane or indecent programming. The prohibition is set forth at Title 18 United States Code, Section 1464 (18 U.S.C. § 1464). Congress has given the Federal Communications Commission the responsibility for administratively enforcing 18 U.S.C. § 1464. In doing so, the Commission may issue a warning, impose a monetary forfeiture or revoke a station license for the broadcast of obscene, profane or indecent material.

Obscene Broadcasts 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: (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. See Miller v. California, 413 U.S. 15 (1973).

Indecent Broadcasts Restricted to 10 P.M. - 6 A.M.

The Commission 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. In applying the "community standards for the broadcast medium" criterion, the Commission has stated, "The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area. Rather, the standard is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant." Indecent programming contains 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 its broadcast during times of day when there is a reasonable risk that children may be in the audience. For a complete summary of the Commission's case law regarding the indecency standard, see Industry Guidance On the Commission's Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd 7999 (2001).

Consistent with a subsequent statute and federal court decisions interpreting the indecency statute, the Commission adopted a rule (47 C.F.R. § 73.3999) pursuant to which broadcasts - both on television and radio - that fit within the definition of indecency and that are aired between 6:00 a.m. and 10:00 p.m. are subject to indecency enforcement action.

Profane Broadcasts Restricted to 10 P.M. - 6 A.M.

The FCC has defined profanity as “including language that denot[es] 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.” See Complaints Against Various Broadcast Licensees Regarding Their Airing of the Golden Globe Awards Program, FCC 04-43 (released: March 18 2004) (“ Golden Globe Awards”). In announcing this definition, the FCC ruled that the single use of the “F-word” in the context of a live awards program was profane. The FCC further stated that it, “depending on the context, will also consider under the definition of profanity the “F-Word” and those words (or variants thereof) that are as highly offensive as the “F-Word,” to the extent such language is broadcast between 6 a.m. to 10 p.m. We will analyze other potentially profane words or phrases on a case-by-case basis.”

Enforcement Items

• Notices of Apparent Liability
• Forfeiture Orders
• Other Orders
• Pleadings of Interest
• Statistical Information on Indecency Complaints & NALs, 1993 - 2004

• Information regarding the details of what was actually said (or depicted) during the allegedly indecent, profane or obscene broadcast. There is flexibility in how a complainant may provide this information. A complainant may submit a significant excerpt of the program describing what was actually said (or depicted) or a full or partial tape or transcript of the material. In whatever form the complainant decides to provide the information, it must be sufficiently detailed such that the Commission can determine the words and language actually used during the broadcast and the context of those words or language. Subject matter alone is not a determining factor of whether material is obscene, profane or indecent. Thus, for example, stating only that the broadcast station “discussed sex” or had a “disgusting discussion of sex” during a program is not sufficient. Moreover, the FCC must know the context when analyzing whether specific, isolated words are 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. See Indecency Guidelines Policy Statement, 16 FCC Rcd 7999 at para. 24. The Commission and/or the Enforcement Bureau have proposed or assessed monetary forfeitures in cases where the complaint did not include a tape or transcript of the actual broadcast. See Emmis FM License Corp. of Chicago, WKQX(FM), Chicago, IL, 17 FCC Rcd 493 (EB 2002) recon. denied, 17 FCC Rcd 18,343 (EB 2002) ; Infinity Broadcasting Corporation of Los Angeles, KROQ-FM, Pasadena, CA, 15 FCC Rcd 10,667 (EB 2000), application for review denied, 17 FCC Rcd 9,892 (2002); Citicasters Co., KSJO(FM), San Jose, CA, 15 FCC Rcd 19,095 (EB 2000), forfeiture paid.
  
  
• The date and time of the broadcast. Under the Communications Act of 1934, if the Commission 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. Moreover, under statutory provisions, judicial and Commission case law and Commission Rules, a broadcaster's right to air indecent or profane speech is protected between the hours of 10 p.m. and 6 a.m. Consequently, the Commission must know the time of day that the material was broadcast.
  
  
• The call sign of the station involved.