FCC Won’t Back Off From April Indecency Ruling : More Explicit Programming Possible After Midnight

The Federal Communications Commission refused Tuesday to back off from its tough 8-month-old policy on broadcast indecency, but it did tell radio and TV stations that they can air more explicit programming after midnight, when children are not likely to be in the audience.

The four commissioners refused to modify their April ruling against two radio stations in California and another in Philadelphia, which were censured for broadcasting “obscene, indecent or profane language.”

By a 4-0 vote, the regulatory agency reserved the right to define the language that broadcasters may use while they are on the air. Until last April, the commission had generally deferred questions of broadcast obscenity to the courts.

“If their aim was to create clarity in the industry, they failed miserably,” said David Salniker, president of the Pacifica Foundation, which operates KPFK-FM (90.7) in Los Angeles, one of the stations that had been censured.

“If anything, the standard was affirmed as an entirely subjective standard based on the whim of the commissioners. All they did was create a semi-safe harbor after midnight.”

The Pacifica Foundation will continue to pursue a more clearly defined definition of broadcast indecency in court, he said.

On April 16, the FCC launched a crackdown on what broadcasters would henceforth be allowed to say on the air, reprimanding KPFK, WYSP-FM in Philadelphia and KCSB-FM in Santa Barbara. Under pressure from such organizations as New York-based Morality in Media, Phoenix-based Citizens for Decency Through Law, and Tupelo, Miss.-based National Federation for Decency, the FCC made a public example of the three stations:

--WYSP was chastised for morning drive-time deejay Howard Stern’s often shocking between-records comedy routine;

--KCSB was admonished for playing the sexually suggestive lyrics of “Makin’ Bacon,” a punk rock record by a defunct group called the Pork Dukes;

--KPFK was criticized for a late-night broadcast of “Jerker,” a homosexual play about AIDS and gay sex. In addition, the FCC referred its KPFK complaint to the Justice Department for obscenity prosecution. The Justice Department refused to prosecute because FCC policy before its April 16 ruling had allowed explicit programming after 10 p.m.

Before then, the FCC had applied a 10-year-old Supreme Court ruling that defined obscenity in terms of the so-called “seven dirty words” uttered by comedian George Carlin in a comedy monologue. Much of the offending language cited in the FCC complaints against WYSP, KCSB and KPFK was innuendo or double-entendre, not the legally defined obscenity in the Carlin case. Only KPFK was charged with actually airing some of Carlin’s four-letter words in its “Jerker” broadcast.

Nevertheless, the commission found that all three stations had aired indecent material.

The agency reaffirmed its intention Tuesday to apply “the generic definition of indecency” to the broadcast industry. Under federal law, that broad definition bans “. . . language or material that depicts or describes in terms patently offensive, as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.”

According to the new FCC interpretation, the generic indecency standard makes broadcasters who air commonly understood synonyms for sexual or scatological acts as guilty of obscenity as broadcasters who air four-letter words. As a result, WYSP deejay Howard Stern’s use of a word such as cucumber or banana in a comedy routine could be viewed by the commission to be as patently offensive as a four-letter word for penis.

Tuesday’s ruling “is probably more vague than ever,” said Steven Lerner, attorney for WYSP’s parent company, Infinity Broadcasting. “They haven’t crystallized anything. What will constitute indecent programming is still as murky as before.”

Broadcasters were also told last April that a longstanding FCC loophole allowing explicit programming after 10 p.m. was closed. For more than a decade, the commission had allowed broadcasters to relax their programming standards once children were likely to be asleep and not in the listening or viewing audience.

KPFK’s airing of “Jerker” and the KCSB broadcast of “Makin’ Bacon” had taken place after the 10 p.m. curfew.

“I’m not worried about the FCC in our case,” said Malcolm Gault-Williams, manager of the University of California, Santa Barbara, radio station. “We’ve already channeled material with sexual references until after midnight, and none of these rulings will change what we broadcast in any of our public affairs programming.”

Under the 53-year-old Federal Communications Act, the FCC is charged with licensing and policing the nation’s 10,000 radio and 1,200 television stations. Though it has rarely exercised its right to do so, the commission has the right to revoke a station’s license.

For fear that the FCC ruling was an indication that it might begin exercising that right, the National Assn. of Broadcasters, the Motion Picture Assn. of America, all three major television networks, National Public Radio and nine other broadcast organizations immediately challenged the indecency policy as too vague. Within a month of the April 16 ruling, all 15 groups had joined with Pacifica in formally asking the commission for clarification.

Tuesday’s ruling was their answer: a specific time after which broadcasters can assume their audience is adult, but no list of unutterable words or phrases as specific as Carlin’s seven dirty words.

The commission rejected arguments that broadcasters should be allowed to air obscene material if it has valid artistic or literary merit, saying each case will have to be decided individually.

Pacifica has consistently held that its broadcast of plays, novels, poems and other literary works do not fall into the same category as punk rock lyrics or a “shock jock’s” intentionally titillating drive-time patter. In June, Pacifica’s New York City outlet, WBAI-FM, broadcast excerpts from the James Joyce novel “Ulysses” in an attempt to test the FCC. The novel contains several four-letter words but was held not to be obscene in a landmark federal court decision in 1936.

The commission ignored that broadcast, but Salniker said that Pacifica is planning a further test: the broadcast in January of Allen Ginsberg’s epic beat poem “Howl!” which is rife with four-letter words.

“We broadcast it 30 years ago when it was first published, and that was during the Eisenhower era,” said Salniker. “It is probably the most published poem in modern American history.”

At the same time the FCC issued its April policy statement, warning letters were sent to all three stations. None expect to receive any further letters after Tuesday’s ruling, and representatives of the stations said they will generally observe the new midnight curfew.

“At least we now have a time limit, even if we don’t have a definition,” said Salniker.

“The two hours doesn’t make much difference,” echoed Gault-Williams. “It is reasonable to assume that some under-age persons are in the audience after 10 p.m. but there are probably no fewer listening after midnight. Our programmers who play that type of material prefer the later hours anyway.”

Pacifica appealed the new standards in federal court last June on grounds that they violate the First Amendment. The FCC asked the appeals court to hold off ruling on the Pacifica appeal until it could review the petitions seeking clarification.

Now that the FCC has ruled, Pacifica plans to continue its court case, Salniker said.

Steve Weinstein contributed to this article