Broadcasters Hit Senate Limit on ‘Indecent Programming’ : Television: The amendment to the public broadcasting funding bill would allow such shows to be broadcast only between midnight and 6 a.m.

Broadcasters said Thursday that they believe a U.S. Senate measure reducing the hours that TV stations can broadcast “indecent programming” will be struck down as unconstitutional if it becomes law.

Although earlier attempts to enact similar restrictions have wound up being overturned in court, the Senate voted 93-3 on Wednesday to approve a ban that would restrict the telecast of “indecent programming” from the hours of midnight to 6 a.m. in order to provide a “safe harbor” for children. Stations that sign off at midnight would be allowed to show these programs only after 10 p.m.

The National Assn. of Broadcasters said in a prepared statement that such a ban “unconstitutionally restricts speech, which the courts have found to be protected by the First Amendment. If this measure becomes law, we may join with others to challenge it in court.”

“In a nutshell, outlines for two similar bans were proposed--a 24-hour ban on indecent programming and then one that went from 6 a.m. to 10 p.m.,” said Doug Wills, spokesman for the National Assn. of Broadcasters. “Both were tossed out on their ear by the federal court. This (legislation) is really not different from those two.”

Sen. Robert Byrd (D-W.Va.), who introduced the so-called “indecency” amendment to the $1.1-billion funding bill for the Corporation for Public Broadcasting, said that he was increasingly disturbed by “the smutty language, violence and lack of morality” in many TV programs.

The Senate legislation is headed for conference committee, where it will be reconciled with similar legislation passed by the House. Then it will be sent to President Bush for his signature.

In 1988, Congress approved a 24-hour ban on indecent telecasts, spearheaded by Sen. Jesse Helms (R-N.C.), but the Supreme Court struck that initiative down earlier this year. Since then, the Federal Communications Commission has been mulling over a procedure for determining just when it’s appropriate for indecent material to be aired.

The FCC defines indecency as “language or material that, in context, depicts or describes, in terms patently offensive as measured by community standards for the broadcast medium, sexual or excretory activities or organs.”

“Our current enforcement, as of this moment, is that we have been enforcing a ban on indecent programming between 6 a.m. and 8 p.m.,” Jane Mago, assistant general counsel for the FCC, said Thursday. “So this new amendment is the difference between four hours, extending that ban from 8 p.m. to 12 a.m.”

If the new “indecent programming” provision becomes law, broadcasters said, it could open up the doors for a wave of court battles over the definition of indecency.

“It opens up the possibility for either lawsuits or citations by the FCC, because the FCC will most likely be flooded with complaints about stations airing programs in violation of the rules,” said David Brugger, president of the Assn. of America’s Public Television Stations, who also expects the amendment to be declared unconstitutional.

“Stations could spend the rest of their lives in court because people might be suing stations for running soap operas in the afternoon or ‘Married . . . With Children’ at night,” Brugger said.

Broadcasters do not appear to be overly concerned at this stage. When earlier challenges to the morality of television programming have been raised, they have pointed their fingers at cable television as the guilty party. The new amendment would not apply to cable TV programming.

“As a practical matter, since we don’t air indecent material, it will not have an impact on us,” said Julie Hoover, a spokesman for Capital Cities/ABC Inc. “(ABC) has a standards and practices department that reviews all entertainment programming that goes on the air. So this will not affect us.”

But such a restrictive ban could have a severe impact on broadcasters, argued Timothy Dyk, a First Amendment attorney who has twice helped the NAB challenge these issues in court.

“The problem is you don’t know what indecency really is because the definition is so unclear and the FCC has been unable to define it,” said Dyk, an attorney with Jones, Day, Reavis & Pogue in Washington. “So what happens is, stations get involved in classic self-censorship. They steer well away from the questionable zone because they don’t want to be cut off by the FCC, and it can really change radio and television.”

Times staff writer Claudia Puig contributed to this article.