“You’ve Got to Censor Television, You Fools!”: Why the FCC Regulates Content on Radio and Broadcast TV

One of the things that first struck me when reading Jennifer Holt’s Empires of Entertainment was the key decision the federal government made about cable television in regards to regulation: to regulate it in the same manner as the print and film industries, rather than in the manner of broadcast television and radio. It’s an easy extrapolation to make, then, that the great freedoms that cable networks enjoy in what content they can broadcast is a result of this regulatory approach. The question then becomes, however, why the FCC regulates content in the realms of broadcast television and radio, yet has no hand in the regulation of content of the print and film industries, and moreover, what they can regulate.

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The logo of the Federal Communications Commission (FCC).

On the face of it, the concept of a government agency regulating content seems absurd on First Amendment grounds. However, decades of judicial rulings back up the FCC’s power to regulate on a simple, basic principle. The basic reason that the FCC is allowed to regulate content in broadcast media is because the airwaves are considered to be public property. Radio and broadcast television are using public frequencies, owned by all citizens in much the same way that a national park or national monument would be. Print, film, and cable, on the other hand, run in private venues. The public does not own the store a book is bought in, nor the theater a movie is played in, nor the satellites cable signals are relayed upon. Therefore, it is up to the owners of these venues to regulate themselves; this is why self-regulatory bodies such as the MPAA exist.

Content the FCC can regulate falls into the categories of “obscenity” and “indecency.” The difference between the two is that the FCC holds that indecency is protected by the First Amendment, but should be restricted; while obscenity is not protected by the First Amendment. What separates one from the other is often unclear, and generally is determined by the rulings of the Supreme Court. The Jacobellis v. Ohio decision established the oft-quoted “I’ll know it when I see it” standard for obscenity, while Miller v. California led to a “three-pronged test:” obscene content inherently lacks “serious literary, artistic, political, or scientific value.” Even so, this test is almost entirely subjective, and so obscenity cases continue to be brought to the court. Further, obscene content has been alleged and challenged in realms other than broadcast media; consider the arrest and trial of comic artist Mike Diana, the first person to be jailed in the United States on obscenity charges.

Violations of obscenity and indecency standards have been the subject of many contentious Supreme Court cases. The most significant for broadcast mediums regards George Carlin’s “seven dirty words” bit, in the case FCC vs. Pacifica Foundation. The court asserted that the broadcast was “indecent, but not obscene,” and asserted the FCC’s right to prohibit indecent broadcasts during hours when children might be listening. In successive instances and cases, the FCC fined and censured broadcasters who violated the standards of indecency.

However, the FCC’s regulations aren’t as clear-cut as one might think. Notable infractions can give an idea of what constitutes indecency or obscenity; for example, many of Carlin’s dirty words are still verboten on network television, but other potentially offensive terms are given a pass by FCC. Furthermore, the FCC can’t regulate content past a certain hour, termed “safe harbor;” this period generally begins at 10 PM. However, this is  subject to the time zone the broadcast takes place in; in other words, a program broadcast during safe harbor on the East Coast may not necessarily be in safe harbor in the Midwest. The networks themselves aren’t entirely sure what constitutes indecency and obscenity, and past FCC chairmen have argued (unsuccessfully) for a change or clarification in the policies.

FCC content regulations may seem unlike regulations regarding media conglomerations, but there are a number of similarities; namely, the vociferous battles over these regulations. Sometimes the FCC is victorious, as in Pacifica; other times, the FCC’s power to regulate is chipped away at, as in the case against the FCC’s  short-lived “Family Viewing Hour” policy. In some cases, these legal battles are exceptionally protracted; the fine over the “wardrobe malfunction” was overturned almost a decade after it aired, and it was only recently that the FCC’s power to fine was challenged in FCC vs. Fox Television Stations, a case regarding fleeting instances of indecency in awards shows and in the television program NYPD Blue, years after the instances had occurred.

It’s easy to see why cable has become such an attractive option for those seeking to push the envelope in terms of content, with such vague definitions constantly held over the heads of broadcasters and such dire consequences for the violation of these ill-defined rules. To alter these rules is a difficult prospect; even arguments on First Amendment grounds are often shut down by cries of “but think of the children!” on both sides of the aisle, and as many times as they’ve ruled against the FCC, the courts are with them more often than not. Nor are obscenity and indecency standards a particularly popular public issue. And any gain would most likely be a victory for principle alone. Public outcry against perceived indecency, while no longer as loud as it once was, is still enough to call networks and broadcasters to heed community standards; the profit motive abrades any artistic or altruistic aims these corporations may have. In essence, obscenity and indecency standards are not going away any time soon, but we can have a better understanding of what they constitute and why they can be legally enforced for as long as we have to live with them.

 

Comments

  1. You know this post interests me greatly. Why? Because I’ve been subject to FCC rules in commercial radio and amateur radio. I hold licenses in both.

    That said I have an understand that community standards are nebulous at best, and downright ridiculous at worst.

    And found the thing about the children interesting. It’s used in more than just FCC hearings. I recall during marriage equality hearings in my state the general bleating of those opposed was “What about the children?” And idiots who couldn’t spell immoral properly. It came out as inmoral. Yeah I know.

    Anyhow – seque to the Parents Television Council – they’re a group of unpleasant bitches and others who have figured out how to game the FCC into action. Part of it is the FCC’s inability to make comments unique. So all the estimate six folks on the PTC will generate dozens or more letters each to the FCC.

    And I’ve written the FCC several times. Last was on net neutrality – I always include the fact that I have my amateur and commercial licenses. May as well.

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