FCC, Bowing to Court, to Ease Indecency Rule

The Federal Communications Commission, responding to a court decision overturning its ban on the broadcast of “indecent” material, said Wednesday that it will continue such restrictions but will expand the time period each day when the broadcasts can occur.

The commission, which regulates radio and television broadcasts, said that it will allow indecent material to be broadcast from 8 p.m. to 6 a.m., or four hours longer than the midnight-to-6 a.m. window struck down Tuesday by a federal appeals court here. In fact, FCC officials said, the agency had been following the expanded schedule while awaiting the court ruling.

James H. Quello, FCC interim chairman, said that “the guessing is we may want to appeal” the 3-0 ruling to the full U.S. Circuit Court of Appeals here or to the Supreme Court. But he said no decision has been made.

The ruling by the court’s three most liberal members--Judges Patricia Wald, Abner Mikva and Harry Edwards--held that the FCC’s ban on broadcasting indecent material between 6 a.m. and midnight was so broad that it violated the First Amendment’s free-speech guarantee.

The court recognized that a compelling interest exists in protecting children from the broadcasting of indecent material. But the judges found that Congress, which ordered the ban, and the FCC had failed to balance that interest with the constitutional rights of older minors and adults to have access to such materials.

Quello, in an interview, contended that the ruling would have little immediate impact, because the FCC has been enforcing only a 6 a.m.-to-8 p.m. prohibition while the longer ban was under challenge in court.

In addition, Quello said that he does not believe the ruling will block government efforts, suggested by some officials, to adopt curbs on televised violence. He said that a 6 a.m.-to-8 p.m. prohibition on violent programming has “a pretty good chance” of surviving court attack.

Atty. Gen. Janet Reno said in Senate testimony last month that she thinks a violence ban could be constitutional. Justice Department officials said Wednesday that they had not studied the appellate court’s ruling and declined to discuss the kind of prohibition that would withstand constitutional attack.

But a Senate Commerce Committee aide said that a proposed ban on televised violence, in the form of legislation introduced Aug. 5 by the panel’s chairman, Sen. Ernest F. Hollings (D-S.C.), suffered none of the weaknesses the court found unacceptable in the indecency rule.

The violence proposal, for instance, gives the FCC the discretion to set the hours such broadcasts are banned, backed up by supporting evidence that children are in the audience during those designated hours. The legislation also recognizes the need to draw any restrictions narrowly, the aide contended.

While the court did not suggest changes in the ban that would make it acceptable, the judges did say that Congress and the FCC had failed to justify with evidence or supporting rationale the 6 a.m.-to-midnight prohibition.

There has been one hearing on the Hollings bill, with additional sessions expected early next year.

“We intend to work closely with Congress and with interested parties to make sure that proposed anti-violence legislation will pass constitutional muster in the courts,” Quello said in a prepared statement.

Quello, who will be succeeded Tuesday by Reed E. Hundt as chairman, disputed suggestions that Tuesday’s ruling calls into serious question more than $1 million in fines against Infinity Broadcasting Corp., the employer of controversial radio “shock jock” Howard Stern. He noted that the programs for which Infinity was fined were aired between 6 a.m. and 8 p.m.

Timothy K. Dyk, an attorney who argued the challenge to the FCC rules before the court, maintained Tuesday that the decision made it “not at all clear” that they can sustain indecency fines.