Cleaning Up the Airwaves Will Be a Messy Job

Originally posted: January 24, 2004

Similar to the prisoner who finds religion on the way to the gallows, Federal Communications Commission chairman Michael Powell now is ready to get tough on broadcast indecency. In recent remarks, Powell said he wants to increase financial penalties for dirty broadcasters. He now calls for reconsideration of a startling ruling made by his agency last fall that a particular f-bomb broadcast on live television did not violate indecency standards because it was used as an expletive to emphasize an exclamation.

Powell’s awakening comes just ahead of the new congressional session that will see two House measures designed to hold the FCC’s feet to the indecency fire. A House resolution introduced by Phil Gingrey, R-Ga., scolds the FCC and demands enforcement of established broadcast content rules. A House bill sponsored by Doug Ose, R-Calif., and Lamar Smith, R-Texas, goes so far as to name which particular vulgar words should receive punishment.

The Senate is already into the act. A resolution by Jeff Sessions, R-Ala., in December gave the FCC a blasting over its lax indecency enforcement. It passed unanimously.

Viewers and listeners are impatiently waiting for the FCC to clean up the mess it enabled. Gingrey’s office reports it has received more complaints about broadcast content standards this past year than for any other issue, including the Iraq war. Sen. Sessions’ office received more than 6,000 complaints regarding the FCC f-bomb ruling last fall.

Here’s the message from Congress to the FCC: Fix this indecency mess or we’ll do it for you. Chairman Powell surely doesn’t want that.

Powell’s late arrival on the indecency issue is not just a matter of better late than never. After years of negligence on indecency enforcement, the FCC must now confront a broadcast industry in which a culture of coarseness is ingrained. No doubt the FCC will look comical getting tough on indecency after ruling last fall that rock star Bono’s f-bomb on NBC was OK. The FCC gave a financial slap on the wrist to a New York radio station that broadcast commentary of a couple having sex in St. Patrick’s Cathedral. The FCC didn’t raise an eyebrow over TV’s “Victoria’s Secret Fashion Show,” and said it was OK for callers to a Buffalo, N.Y., radio station to talk about “urinating” on someone, because they were just using slang terms to indicate anger.

Given these recent decisions, lawyers for shock broadcasters will laugh at the FCC’s newfound concern for raw content. Any get-tough penalties from the FCC will be appealed in federal court, where industry lawyers will point out the inconsistency of past permissiveness versus trendy enforcement.

Obviously, the First Amendment is a key consideration when the government looks into content restriction. But while the Supreme Court has, indeed, said that indecent communication is generally protected by the Constitution, Title 18 of the U.S. Code Section 1464 prohibits “any obscene, indecent, or profane language by means of radio communication.” The courts have also endorsed the FCC’s indecency enforcement standards that allow punishment of broadcasts that “depict or describe and sexual or excretory organs or activities” and are offensive by community standards. The FCC has the power to warn, fine or even revoke the licenses of offending broadcasters.

Defenders of broadcast smut will say the FCC indecency rules are too vague to enforce. The solution to the vagueness, however, is not “anything goes.” If the FCC doesn’t enforce the rules, they have no rules. The U.S. District Court of the District of Columbia in 1995 challenged the FCC to identify the compelling government interest that warrants regulation. The FCC needs to establish that compelling interest and then enforce in a way that makes clear its intent to clean up the airwaves.

This process will be lengthy and legally messy for the FCC. But it won’t be easier if it’s handled through congressional action. If the federal government can keep tobacco advertising (a legal product, by the way) off the air and effectively suppress the broadcast advertising of hard liquor, it should be able to effectively manage and restrict the broadcast of offensive language.

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