AT ISSUE : ‘Indecency’ Still Murky Situation
For 10 months, members of the Federal Communications Commission have waged a quiet war against broadcast indecency--a war that shows no signs of ending soon.
On April 16, FCC Chairman Dennis Patrick issued his declaration of war in the form of a press conference at which three radio stations were cited for broadcasting obscene or indecent material. One of those stations--KPFK-FM (90.7) in Los Angeles--was referred to the Justice Department for possible criminal prosecution.
Though the Justice Department declined to prosecute KPFK, and though the two other stations (KCSB-FM in Santa Barbara and WYSP-FM in Philadelphia) received only written reprimands, a chill rippled through the broadcast industry.
By June, a coalition of 16 media organizations, led by the 6,000-member National Assn. of Broadcasters, petitioned the FCC to more clearly define what it meant by “indecency.” In a separate action, the nonprofit foundation that operates KPFK-FM sued for a clearer definition of indecency in federal court.
But the regulatory agency refused to budge from its newly adopted position that it has the right and obligation to decide, on a case-by-case basis, what is or is not indecent, based on the broad language of a 10-year-old Supreme Court definition of broadcast indecency, obscenity and profanity.
That definition forbids language or pictures of sexual or excretory acts or organs in a manner that is “patently offensive as measured by contemporary community standards for the broadcast medium.”
On Jan. 15, the FCC escalated its war on indecency to include television by launching an investigation into the broadcast of an allegedly indecent movie over Kansas City’s KZKC-TV.
Two weeks later, the NAB-media coalition sued the FCC in federal court in Washington for a better definition of indecency, charging that the commission is violating First Amendment guarantees of free speech.
At issue is whether the FCC has the right to decide what is indecent programming on the nation’s 10,046 radio and 1,285 television stations.
For several years, conservative media watchdog organizations have accused the FCC of pursuing a policy of benign neglect in enforcing broadcast indecency standards.
Former FCC Chairman Mark Fowler oversaw a general policy of deregulation that deferred judgment to broadcasters and marketplace forces on a wide range of issues, including indecency.
Outside of a ban on the use of the so-called “seven dirty words” that comedian George Carlin used in a monologue broadcast over New York’s WBAI-FM in 1973, the FCC had done little to regulate the content of what could be broadcast over public airwaves.
When Fowler handed over the chairmanship to Dennis Patrick last April, the FCC’s laissez-faire policy on indecency changed abruptly.
“After 10 years of non-enforcement, they’ve finally put the squeeze on any radio or television station that wants to be a little raunchy,” said Paul McGeady, general counsel for New York-based Morality in Media.
Along with the Tupelo, Miss.-based American Family Assn. (formerly known as the National Federation for Decency), McGeady’s organization has been in the vanguard of the crusade against broadcast indecency. They contend that the regulatory agency has not only the right but also the responsibility to keep public airwaves free of indecent programming.
But far from applauding the FCC’s new-found militancy, McGeady and American Family Assn. officials say the commission has not gone far enough.
“I don’t think (the FCC) is going to do anything about it,” said Treva Burk, an officer in the Kansas City chapter of the American Family Assn. “I think they’ll slap them on the wrist and forget about it. They ought to yank their license.” Burk wrote the letter to the FCC that launched the current indecency investigation of KZKC-TV.
From the beginning, broadcasters have conceded that the FCC has the right to prohibit obscenity, particularly during hours when children are likely to be among the listening or viewing audience.
But threatening reprimands, fines or even the revocation of the broadcast license of a radio or TV station without detailing what is indecent constitutes censorship, broadcasters say.
“What they are saying is that we can go ahead and broadcast anything we want, but they’ll decide after the fact whether it was indecent or not . . . and punish us if they decide that it was (indecent),” said David Salinker, executive director of the Pacifica Foundation, which operates KPFK-FM.
Several months before the NAB coalition sued for a better definition of indecency, Pacifica joined forces with the American Civil Liberties Union in a federal lawsuit to force the FCC to be more specific. That suit, which cost Pacifica more than $50,000 to pursue and which the foundation dropped last month, helped to get one significant concession from the commission.
In November, FCC General Counsel Diane Killory announced that broadcasters would be granted a “safe harbor” from midnight to 6 a.m. in which to broadcast adult-oriented material.
But, again, the commission declined to define adult-oriented material.
Besides the NAB, members of the coalition opposing the FCC indecency policy include all three major television networks, National Public Radio, the Society of Professional Journalists (SDX), the Motion Picture Assn. of America and Action for Children’s Television.
In the suit it filed three weeks ago in the U.S. District Court of Appeals for the District of Columbia, the coalition said the FCC’s indecency policy “is in violation of the First Amendment and is otherwise arbitrary and capricious and contrary to law.”
But the organizations that back the new FCC crackdown on everything from frontal nudity on prime-time TV to sexual innuendo by drivetime radio deejays are equally adamant in their demands and formidable in their numbers.
The 10-year-old American Family Assn. claims a national membership of 320,000 individuals and organizations, including several thousand churches. Morality in Media, which celebrates its 27th anniversary this year, has a 50,000-name mailing list of subscribers to its quarterly newsletter.
Though the two organizations have the highest profile among those who support the FCC policy, spokesmen for both groups contend that thousands of other church groups and parents who are not aligned with them have also joined the growing protest against broadcast indecency.
The one point that proponents and opponents of the FCC policy agree upon is that there will be no early resolution to the sticky issue of broadcast indecency.
While everyone agrees that radio and TV are not the place for the presentation of hard-core pornography, no one can agree on the more subjective question: How far can one go without becoming pornographic?
It could be several months before the federal appeals court renders a decision on the NAB-media coalition suit, and that decision in turn could be appealed to the U.S. Supreme Court.
So far the FCC has adamantly refused to expand its definition beyond the statutory “patently offensive” language upheld in 1978 by the Supreme Court in the Carlin “seven dirty words” case.
According to FCC spokeswoman Sally Lawrence, the commission could act to clarify its definition as early as its next regularly scheduled monthly meeting on Thursday, but it is unlikely. From the FCC’s point of view, the case of the three radio stations has been resolved. There have been no further complaints about them that the commission has seen fit to act upon.
The investigation of KZKC-TV is continuing, Lawrence said. The station formally denied that it aired an indecent movie in a hand-delivered reply to the FCC complaints division last week, but no recommendation regarding possible sanctions has been reached, Lawrence said.
If found guilty of indecency, KZKC could face penalties ranging from a letter of reprimand to a $10,000 fine to the revocation of its broadcast license.
In the meantime, the NAB-media coalition may find itself joined in its lawsuit by an unlikely ally.
“We intend to join as an amicus (friend of the court) against the FCC,” said Morality in Media’s McGeady. “We have always said that obscenity is illegal. Period. That’s what the law says. And now the FCC is saying that it’s OK to broadcast obscenity from midnight to 6 a.m.
“So, yes, in a way we’re with the NAB on this because we don’t believe the FCC can read their own rules either. I guess you could say that the FCC is the ham and the NAB and Morality in Media each represent a slice of bread. And what we’ve got here is a ham sandwich.”