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Regulation of Obscenity, Indecency and Profanity

The Federal Communications Commission (“FCC”) is given statutory authority pursuant to Title 18 of the United States Code, Section 1464 to regulate the broadcast of any obscene, indecent, or profane material.  The FCC was established by the Communications Act of 1934 with the intention of regulating international and interstate communications by wire, cable, radio, and television.

One of the main objectives of the FCC is to regulate obscene, indecent, and profane material broadcast over the public airways.  Broadcasting indecent or profane programming at certain times and broadcasting of obscene programming at any time is a violation of federal law.  What makes a material obscene has been discussed by the United States Supreme Court.  The Supreme Court applied a three-prong test: a) an average person must find that the material as a whole has a tendency to excite lustful thoughts; b) the material must describe or illustrate in an patently offensive way, sexual conduct specifically defined by applicable law; and b) the material does not contain any serious literacy, political, artistic, or scientific value.

The FCC is the legal authority empowered to determine whether broadcast material depicts or describes something patently offensive or meets contemporary community standards.  The FCC primarily looks into three main factors to determine whether a material is patently offensive: a) whether the description or depiction of the material is explicit or graphic; b) whether the material is a lengthy repetition of descriptions or depictions of sexual or excretory organs; and c) whether the material described or appeared is used to create shock or excite.  The FCC rightfully balances all these factors while considering a material, because each case presents a mixture of all these possible factors.

However, the United States Supreme Court has held that indecent material is protected under the First Amendment and therefore, cannot be banned entirely by the FCC.  As an impact of the Supreme Court ruling, the FCC has relaxed its restrictions to a great extent. Now, the FCC restricts broadcasting of indecent materials through air during times of the day when there is a reasonable risk that children may be in the audience.  The FCC restricts broadcasting of indecent material by prohibiting station licensees from broadcasting such materials during the period from 6 a.m. to 10 p.m., local time.

Highly offensive words are those words uttered in the context presented may in legal terms amount to a nuisance.  These offensive words are known as profane language.  The FCC has warned broadcasters that “F-Word” and those words which are as highly offensive as the “F-Word” are considered profane language cannot be broadcasted between 6 a.m. and 10 p.m.  However, the FCC has not completely banned the use of profane language, because profane language is also protected under the First Amendment.

The FCC has the authority to impose civil monetary penalties, deny a renewal application or revoke a license.  Moreover, anyone convicted in a federal court for any violations of the provisions of obscenity, indecency and profanity laws shall be subject to criminal fees or imprisonment for not more than two years.

In 2004 the FCC has taken action in 12 cases involving hundreds of thousands of complaints.  The FCC is stricter on enforcing penalties by proposing monetary penalties based on each indecent utterance in a broadcast, rather than proposing a single monetary penalty for the entire broadcast.

The FCC is however, very diligent and careful in seeing that there is no interference with broadcasters’ freedom of speech, prohibitions on censorship and the First Amendment protections of the United States.

Inside Regulation of Obscenity, Indecency and Profanity