It is a violation of federal law to broadcast obscene or indecent programming. The prohibition is set forth at Title 18 United States Code, Section (18 U.S.C. 1464). Congress has given the Federal Communications Commission the responsibility for administratively enforcing 18 U.S.C. 1464. In doing so, the Commission may revoke a station license, issue a warning, or impose a monetary forfeiture for the broadcast of obscene or indecent material.

Obscene Broadcasts Prohibited at All Times

Obscene speech is not protected by the First Amendment and cannot be broadcast at any time. 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; and (2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value. See Miller v. California, 413 U.S. 15 (1973).

Indecent Broadcasts Restricted

The Commission has defined broadcast indecency as

language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.

See Infinity Broadcasting Corporation of Pennsylvania, 2 FCC Rcd 2705 (1987). Indecent programming contains sexual or excretory references that do not rise to the level of obscenity. As such, indecent material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted in order to avoid its broadcast during times of day when there is a reasonable risk that children may be in the audience. In the wake of decisions rendered by the United States Court of Appeals for the District of Columbia Circuit prior to 1995, the Commission concluded that it must restrict its enforcement actions to indecent programming aired during daytime hours, ie., between the hours of 6:00 a.m. and 8:00 p.m. See Action for Children's Television v. FCC, 852 F.2d 1332 (D.C.Cir.1988); Kansas City Television, Ltd. (KZKC), 4 FCC 6706 (1989). In a decision issued June 30, 1995, the United States Court of Appeals for the District of Columbia Circuit, responding to challenges to the FCC's expanded enforcement authority as adopted by Congress, ordered the Commission to revise its rules so that indecent programming from 6:00 a.m. to 10:00 p.m. will be subject to enforcement action. Action for Children's Television v. FCC, 58 F.3d 654 (D.C.Cir.1995), cert.denied, 116 S.Ct.701(1996). The Commission's new rule, see 47 C.F.R. 73.3999 adopted pursuant to the Court's mandate, went into effect on August 28, 1995.

As a result, broadcasts -- both on television and radio -- that fit within the definition and that are aired between 6:00 a.m. and 10:00 p.m. are subject to indecency enforcement action.

Filing Complaints

The Commission does not independently monitor broadcasts for indecent material. Its enforcement actions are based on documented complaints of indecent or obscene broadcasting received from the public. Given the sensitive nature of these cases, it is important that the Commission be afforded as full a record as possible to evaluate allegations of obscene or indecent programming. Complaints should be directed to the FCC, Mass Media Bureau, Enforcement Division, Complaints and Political Programming Branch, 1919 M Street, N.W., Washington, D.C.20554, and should include: (1) a tape or transcript of the program or of signficant excerpts; (2) the date and time of the broadcast; and (3) the call sign of the station involved. These tapes, of necessity, become part of the Commission's records and cannot be returned.