Title 18 of the United States Code, Section 1464, prohibits the utterance of “any obscene, indecent or profane language by means of radio communication.”
Consistent with a subsequent statute and court case, the Commission's rules prohibit the broadcast of indecent material during the period of 6 a.m. and 10 p.m.
FCC decisions also prohibit the broadcast of profane material between 6 a.m. and 10 p.m.
What makes material “obscene?”
Obscene speech is not protected by the First Amendment and broadcasters are prohibited, by statute and regulation, from airing obscene programming at any time.
According to the U.S. Supreme Court, to be obscene, material must meet a three-prong test:
(1) an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest (i.e., material having a tendency to excite lustful thoughts).
(2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law.
(3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value. The Supreme Court has indicated that this test is designed to cover hard-core pornography.
What makes material “indecent?”
Indecent material contains sexual or excretory material that does not rise to the level of obscenity. For this reason, the courts have held that indecent material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted to avoid its broadcast during times of the day when there is a reasonable risk that children may be in the audience.
The FCC has determined, with the approval of the courts, that there is a reasonable risk that children will be in the audience from 6 a.m. to 10 p.m., local time. Therefore, the FCC prohibits station licensees from broadcasting indecent material during that period.
Material is indecent if, in context, it depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium. In each case, the FCC must determine whether the material describes or depicts sexual or excretory organs or activities and, if so, whether the material is “patently offensive.”
In the FCC's assessment of whether material is “patently offensive,” context is critical. The FCC looks at three primary factors when analyzing broadcast material:
(1) whether the description or depiction is explicit or graphic
(2) whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs
(3) whether the material appears to pander or is used to titillate or shock. No single factor is determinative. The FCC weighs and balances these factors because each case presents its own mix of these, and possibly other, factors.
What makes material “profane?”
“Profane language” includes those words that are so highly offensive that their mere utterance in the context presented may, in legal terms, amount to a “nuisance.” In its Golden Globe Awards Order the FCC warned broadcasters that, depending on the context, it would consider the “F-Word” and those words (or variants thereof) that are as highly offensive as the “F-Word” to be “profane language” that cannot be broadcast between 6 a.m. and 10 p.m.
What is the “safe harbor”?
The “safe harbor” refers to the time period between 10 p.m. and 6 a.m., local time. During this time period, a station may air indecent and/or profane material. In contrast, there is no “safe harbor” for the broadcast of obscene material. Obscene material is entitled to no First Amendment protection, and may not be broadcast at any time.
Are there certain words that are always unlawful? No. Offensive words may be profane and/or indecent depending on the context. In the Golden Globe Awards Order, the FCC stated that it would address the legality of broadcast language on a case-by-case basis. Depending on the context presented, use of the “F-Word” or other words as highly offensive as the “F-Word” may be both indecent and profane, if aired between 6 a.m. and 10 p.m.
Do the FCC's rules apply to cable and satellite programming? In the past, the FCC has enforced the indecency and profanity prohibitions only against conventional broadcast services, not against subscription programming services such as cable and satellite. However, the prohibition against obscene programming applies to subscription programming services at all times.
- The Preceeding Information From the F.C.C.
