Supreme Court Refuses to Review Lower Court Decision
Upholding FCC Ban on "Indecent" Programming

By Neal J. Friedman

The Supreme Court has refused to review a lower court decision upholding the FCC's rule prohibiting "indecent" programming except between the hours of 10 P.M. and 6 A.M. Last June the District of Columbia Circuit Court of Appeals upheld the FCC's indecency rule. The Commission had sought approval for a 6 A.M. to midnight ban on indecent programming while permitting stations that sign off at midnight to air such programs after 10 P.M. The appellate court said it could find no basis for any preferential treatment and ordered a rollback to 10 P.M. for all stations. At the same time, however, the court said it would defer to Congress if it wished to establish a different safe harbor for indecency. The Supreme Court's refusal to review the decision allows it to stand.

The Court's decision now leaves the Commission free to enforce its previous decisions on indecency and turn its attention to pending complaints. The decision may also spark a new round of complaints to the Commission from listeners about allegedly indecent programming.

There remains no "bright line" test for broadcasters to determine whether specific programs are "indecent" under the Commission's definition. In its previous forfeiture actions, the Commission has been careful to include transcripts of the offending programs, many of which have left little to the imagination. The Commission and court decisions have generally defined "indecency" as references to sexual or excretory functions that, when taken in context, are "patently offensive."

Unlike obscenity, which enjoys no Constitutional protection, prohibitions against indecency must pass the highest level of judicial scrutiny in order to be upheld. The Commission justified its indecency ban on the government's compelling interest in protecting the welfare of children who might be subjected to indecent material. The appellate court agreed.

The Supreme Court action ends a decade-long effort to ban indecent programming during portions of the broadcast day, but is by no means the end of the battle over program content control. FCC Chairman Reed Hundt immediately hailed the Supreme Court's action as a vindication of his efforts to improve television programming and limit violence. Hundt said the decision would reduce legal challenges to the so-called v-chip legislation, now pending in Congress, that would require new television sets to be equipped with technology that would permit parents to screen out objectionable programs.

Opponents of the indecency rule, who can also be expected to challenge the v-chip legislation, if enacted, saw it differently. They argued that the decision applies only to indecency and the v-chip is a separate issue.

With the Commission likely to step up its enforcement of indecency regulation, licensees should carefully review any questionable program material and advise their on-air staff as to the rules.

Copyright © 1996 Neal J. Friedman

Reproduced with permission of
Neal J. Friedman
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