All-Day Ban on TV Indecency Legal, FCC Says

The Federal Communications Commission ruled today that a 24-hour-a-day ban on indecent radio and television broadcasts meets constitutional standards and does not violate free speech provisions of the First Amendment.

A unanimous five-member commission said its ruling was based on its findings that children--which it defines as 17 years old or younger--”are in the broadcast audience for both radio and television at all times of day and night.”

Moreover, the commission said that “alternatives such as time channeling and technological restrictions are insufficient to protect them from exposure to harmful and indecent programming.”

The FCC had issued its regulations for the ban after Congress mandated a 24-hour prohibition on the broadcast of indecent programs in 1988. The regulations were stayed in January, 1989, by the U.S. Court of Appeals for the District of Columbia pending a review of their constitutionality.

The commission reviewed Arbitron data for radio and television to show that children remain in the late night viewing audience. In reaching its conclusions, the commission staff also relied on a 1988 Supreme Court “dial-a-porn” ruling dealing with indecent telephone calls in which the court held that indecent speech can be regulated if it promotes a “compelling”’ government interest and is “narrowly tailored” to serve that interest.

In its action today, the commission approved a staff report concluding that the congressionally mandated prohibition “is a sufficiently narrow means of preventing access to indecent broadcasts by children.” FCC chief counsel Robert Pettit said that because children are in the broadcast audience in the middle of the night as well as the daytime, it makes it difficult to channel indecent programming into specific time periods.

The FCC report goes to the appeals court, which is expected to schedule oral arguments as part of the broader challenge to the prohibition.