Court Upholds FCC Indecency Ruling

A federal court ruled Friday that the Federal Communications Commission was correct 16 months ago when it demanded that TV and radio stations curb their broadcast of indecent programming but wrong when it ordered those same broadcasters to limit the airing of indecent material to the hours between midnight and dawn.

Shortly after the U.S. Circuit Court of Appeals’ unanimous decision was made public, FCC Chairman Dennis Patrick issued a statement that the commission would “promptly” hold hearings on the question of when and how indecent programming can be aired.

The court decision was the result of an appeal made late last year by the National Assn. of Broadcasters and a dozen other industry organizations, including all three major television networks and National Public Radio.

In their suit, the broadcasters alleged that the FCC’s tough new stance on indecent broadcasting relied on a vague definition of indecency that effectively gave the commission censorship powers in violation of the First Amendment.

But the three-judge panel, headed by Chief Judge Ruth B. Ginsburg, upheld the FCC’s indecency definition on Friday. Relying on past Supreme Court decisions, the FCC began sanctioning broadcasters in April of 1987 for broadcasting “patently offensive” pictures or descriptions of sexual or excretory functions.

“I’m delighted that the court today has unquestionably affirmed the commission’s authority to regulate the broadcast of indecent material, permitting parents to control their children’s access to sexually explicit programs,” Patrick said. “The court agreed that the FCC’s definition of indecency is not vague, but is constitutional in all respects.”

But broadcasters also claimed the ruling as a victory. NAB executive vice president and general counsel Jeff Bauman pointed to Ginsburg’s statement that the FCC had failed to show that impressionable children might be viewing or listening to indecent programming before or after the midnight curfew that the commission imposed on broadcasters last year.

Broadcasters have no immediate plans to appeal the Friday decision pending the outcome of the FCC’s planned hearings.

Since April 12, 1987, when the commission first publicly censured three radio stations (including KPFK-FM in Los Angeles and KSBR-FM at UC Santa Barbara), the nation’s broadcasters have lobbied for a more specific definition of indecency and a time during the day when they would be allowed to air adult-oriented programming.

“The court has recognized that a safe harbor is vital to the constitutionality of any regulation of indecent programming,” said Bauman. “Any attempt by the FCC or Congress to eliminate a safe harbor clearly would be unconstitutional.”

In January, the FCC cited a Kansas City television station for airing an R-rated movie, “Private Lessons” during prime time when youngsters are prone to be in the audience. Patrick and his two fellow commissioners levied a $2,000 fine against the station last month, but the station’s owner has refused to pay on grounds that the FCC indecency policy violates free speech guarantees.

Last Tuesday, Sen. Jesse Helms (R-N.C.) tacked an amendment to a congressional appropriations bill that would have put portions of the FCC’s anti-indecency campaign into law.

“This (the Court of Appeals decision) should put an end to that,” said NAB spokesman Bob Halloran.

FCC Chairman Patrick said he believed the court’s decision “affirmed the commission’s decision that all three (radio) broadcasts at issue were indecent.”

In addition to the KPFK broadcast of a homosexual play about AIDS and KSBR’s broadcast of a punk rock song entitled “Makin’ Bacon,” the FCC also cited New York “shock jock” Howard Stern and his station, WYSP-FM, for indecency.

Patrick made no reference to the KZKC-TV airing of “Private Lessons”--a film about a 15-year-old boy who is seduced by an older woman.

“The court confirmed the FCC’s view that indecent broadcasts cannot be banned, but that the Constitution compels the commission to channel these programs to times when there is not a reasonable risk of children in the audience,” Patrick said. “I intend to respond promptly to the court’s questions regarding those specific times by recommending the initiation of a commission proceeding.”