FCC Upholds 24-Hour-a-Day Ban on ‘Indecent’ Broadcasts : Law: The commission’s unanimous ruling finds the prohibition constitutional. Restricting such programming to specific times and lock boxes are insufficient to protect children, the panel says.

The Federal Communications Commission ruled Thursday 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 that its ruling was based on its findings that children--whom it now defines as 17 or younger--”are in the broadcast audience for both radio and television at all times of day and night.”

The commission said that alternatives such as restricting potentially “indecent” programming to specific times and mechanical restrictions, such as lock boxes, “are insufficient to protect them from exposure to harmful indecent programming.”

The commission 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 FCC reviewed Arbitron data for radio and television to determine whether 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, in which the court held that indecent speech may be regulated if it promotes a “compelling” government interest and is “narrowly tailored” to serve that interest.

In its action Thursday, the commission approved a staff report that concluded 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 target programming into specific time periods.

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

As expected, the FCC action drew swift criticism from broadcasters and others involved in the court challenge.

“The courts have made it clear that a 24-hour ban on constitutionally protected speech is contrary to the First Amendment,” said Edward O. Fritts, president of the National Assn. of Broadcasters. “We are disappointed that the FCC, by its action today, ignores this judicial precedent and the record in its support developed in this proceeding.”

Last month, the association issued a statement of principles for radio and television in which it urged broadcasters to avoid programming that “panders to prurient or morbid interests.”

The broadcasters are among 17 groups who have challenged the blanket indecency broadcast prohibitions in court. The unusual coalition of challengers includes CBS, NBC, ABC and the Public Broadcasting Service, the Motion Picture Assn. of America, the Recording Industry Assn. of America, Action for Children’s Television, the American Civil Liberties Union and the Reporters Committee for Freedom of the Press.

Timothy B. Dyk, lead counsel for the coalition, which is challenging the constitutionality of a blanket ban, said Thursday that the coalition firmly believes that “parents should be making the choices and not the government.”

The FCC said it was defining children as 17 or younger to be consistent with numerous state regulations, such as those that limit the sale of pornographic materials to minors.

“What we do will pass Constitutional muster,” said Commissioner Ervin S. Duggan, who added that parents have to be “superhuman” to monitor their children.

Duggan said that many parents today find their homes “alien territories” invaded by value systems and information that they find abhorrent. “Parents need the support of the society and culture. They are not enemies of the Constitution. They are people like you and me. We owe some decent concern to the upset and anguish they are expressing.”

The commission said it has received 92,500 letters dealing with this issue, 88,000 favoring the ban and 4,500 opposing it.

Until a final court ruling, the FCC continues to have enforcement authority over broadcasts that occur during daytime hours, but cannot take action against alleged indecent broadcasts that occur after 8 p.m. until the appeals court ruling. According to its staff, the commission receives many more complaints about radio broadcasts than television.

FCC officials refused to speculate on what effect the 24-hour ban might have on radio and television if it is upheld by the courts, saying that each case will be considered separately.

The FCC, for purposes of broadcasting, has defined indecency as “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.”

In 1988, the Supreme Court upheld the commission’s definition of indecency as well as its authority to restrict those broadcasts to a time of day when is was unlikely that children would be in the broadcast audience. The commission concluded that such programming could not be broadcast until after midnight, but the appeals court ordered the commission to conduct a more thorough inquiry.

Before the commission could launch its inquiry, Congress passed legislation for a 24-hour blanket ban on “indecent” broadcasts. The commission adopted a rule on the 24-hour ban, but the appeals court stayed implementation of the ban pending a review of its constitutionality. At the same time, the court agreed to allow the commission time to compile a record supporting the 24-hour ban.

The official commission report is expected to be made public shortly.