It is a violation of federal law to air obscene programming at any time. It is also a violation of federal law to broadcast indecent or profane programming during certain hours. Under 18 U.S.C. Section 1464, “[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.” Under 18 U.S.C. Section 1468(a), “[w]hoever knowingly utters any obscene language or distributes any obscene matter by means of cable television or subscription services on television, shall be punished by imprisonment for not more than 2 years or by a fine in accordance with this title, or both.” Likewise, under 47 U.S.C. Section 559, “[w]hoever transmits over any cable system any matter which is obscene or otherwise unprotected by the Constitution of the United States shall be fined under Title 18 or imprisoned not more than 2 years, or both.” Section 73.3999 of the Commission’s rules, applicable to broadcast stations, bans the broadcast of obscene material and prohibits radio and television broadcasts of indecent material between the hours of 6:00 a.m. and 10:00 p.m.
The FCC defines indecent speech as material that, in context, depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium. Thus, indecency findings require two fundamental determinations. First, the material alleged to be indecent must fall within the subject matter scope of our indecency definition – that is, the material must describe or depict sexual or excretory organs or activities. Second, the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium.
In assessing whether broadcast material is patently offensive, the full context in which the material appeared is important. Three principal factors are significant to this contextual analysis: (1) the explicitness or graphic nature of the description or depiction; (2) whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs or activities; and (3) whether the material panders to, titillates, or shocks the audience. In examining these three factors, the FCC must weigh and balance them to determine whether the broadcast material is patently offensive because each indecency case presents its own particular mix of factors.
At the same time, however, the Commission is careful of First Amendment protections and the prohibitions on censorship and interference with broadcasters' freedom of speech. Accordingly, the FCC proceeds cautiously and with appropriate restraint when determining whether broadcast material is indecent or not. The FCC has denied complaints in cases in which we determined the broadcast was not indecent based on the overall context of the programming.
Congress has given the FCC the responsibility for administratively enforcing the law that governs these types of broadcasts. The FCC has authority to issue civil monetary penalties, revoke a license or deny a renewal application. The FCC vigorously enforces this law where we find violations. In addition, the United States Department of Justice has authority to pursue criminal violations. Violators of the law, if convicted in a federal district court, are subject to criminal fines and/or imprisonment for not more than two years.
Rules & Statutes
Recent Enforcement Actions
March 23, 2015 - Notice of Apparent Liability for Forfeiture
FCC Plans Max Fine Against WDBJ For Indecent Material In Evening News
August 11, 2014 - Order/Consent Decree
Border Media To Pay $37,500 to Resolve Indecency Investigation
April 14, 2014 - Order/Consent Decree
KRXA to Pay $15K to Settle Indecency and Sponsorship ID Probe.
November 14, 2013 - Order/Consent Decree
Liberman to Pay $110,000 to Resolve Indecency Investigation
April 1, 2013 - Public Notice
FCC Cuts Indecency Complaints By 1 Million; Seeks Comment on Policy