Court Upholds FCC’s Right to Fine Broadcasters for Indecency

The government’s policy of fining TV and radio stations for violating decency standards is constitutional, a federal appeals court ruled Tuesday. However, the panel said it was troubled by the lengthy time it takes regulators to enforce the policy.

In a 2-1 decision, the U.S. Court of Appeals for the District of Columbia upheld a lower court ruling that the Federal Communications Commission’s policy does not violate broadcasters’ rights to free speech.

Opponents of the FCC’s policy--including civil liberties and civil rights groups, broadcasters and authors--had argued that it does.

The FCC policy, opponents told the court, lacks safeguards--notably prompt judicial review--thereby forcing broadcasters to conform with potentially unconstitutional restrictions on their speech.

Even though the court said opponents failed to show that speech that is not indecent is being restricted, it held the door open to such claims in the future, said Timothy Dyk, attorney for the opponents. No such case is currently pending, he said.

The court’s action means the FCC’s enforcement of the government’s restrictions against indecent broadcasts remains intact.

The FCC has 84 cases pending involving allegedly indecent broadcasts, 52 of them involving radio and 32 television. The FCC has never found a TV station in violation of the indecency provisions, FCC officials said.

Currently, TV and radio stations cannot air adult and other “indecent” programs between 6 a.m. and 8 p.m. If they do, the FCC can fine a station up to $10,000 for the transmission and up to $250,000 more for continuing violations. On June 30, the appeals court ordered the agency to extend the ban to 10 p.m.

If the broadcaster doesn’t pay the fine, the FCC can refer the case to the Justice Department, which can sue the broadcaster. In defending itself, the broadcaster is entitled to a trial on the question of whether the broadcast was indecent. No broadcaster has ever gone to trial.