A call for decency

"The FCC has been delinquent in its stewardship of the public airwaves," said L. Brent Bozell, president of the Parents Television Council [PTC], whose members have flooded the FCC with indecency complaints in recent years. "This irresponsibility must stop, and with the leadership of chairman Martin, we are confident it will."

This quote from 2005, was on the eve of change at the Federal Communication Commission, that under President Bush, got a new chairman: Kevin J. Martin, one of the leaders in the crackdown on indecency. Mind you, America has long had a crusade for decency, and a number of groups such as the PTC have been keen to punish various media companies, namely Clear Channel Communications, Infinity Broadcasting and CBS among others, for incidents violating broadcasting decency standards.

What exactly makes broadcast material obscene or indecent or profane? According to FCC:

"What makes material “obscene?”
Obscene speech is not protected by the First Amendment and broadcasters are prohibited, by statute and regulation, from airing obscene programming at any time. According to the U.S. Supreme Court, 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 (i.e., material having a tendency to excite lustful thoughts).(2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law. (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value. The Supreme Court has indicated that this test is designed to cover hard-core pornography.

What makes material “indecent?”
Indecent material contains sexual or excretory material that does not rise to the level of obscenity. For this reason, the courts have held that indecent material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted to avoid its broadcast during times of the day when there is a reasonable risk that children may be in the audience.
The FCC has determined, with the approval of the courts, that there is a reasonable risk that children will be in the audience from 6 a.m. to 10 p.m., local time. Therefore, the FCC prohibits station licensees from broadcasting indecent material during that period.
Material is indecent if, in context, it depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium. In each case, the FCC must determine whether the material describes or depicts sexual or excretory organs or activities and, if so, whether the material is “patently offensive.”
In the FCC's assessment of whether material is “patently offensive,” context is critical. The FCC looks at three primary factors when analyzing broadcast material:
(1) whether the description or depiction is explicit or graphic(2) whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs(3) whether the material appears to pander or is used to titillate or shock. No single factor is determinative. The FCC weighs and balances these factors because each case presents its own mix of these, and possibly other, factors.

What makes material “profane?”
“Profane language” includes those words that are so highly offensive that their mere utterance in the context presented may, in legal terms, amount to a “nuisance.” In its Golden Globe Awards Order the FCC warned broadcasters that, depending on the context, it would consider the “F-Word” and those words (or variants thereof) that are as highly offensive as the “F-Word” to be “profane language” that cannot be broadcast between 6 a.m. and 10 p.m.

What is the “safe harbor”?
The “safe harbor” refers to the time period between 10 p.m. and 6 a.m., local time. During this time period, a station may air indecent and/or profane material. In contrast, there is no “safe harbor” for the broadcast of obscene material. Obscene material is entitled to no First Amendment protection, and may not be broadcast at any time.
Are there certain words that are always unlawful? No. Offensive words may be profane and/or indecent depending on the context. In the Golden Globe Awards Order, the FCC stated that it would address the legality of broadcast language on a case-by-case basis. Depending on the context presented, use of the “F-Word” or other words as highly offensive as the “F-Word” may be both indecent and profane, if aired between 6 a.m. and 10 p.m.
Do the FCC's rules apply to cable and satellite programming? In the past, the FCC has enforced the indecency and profanity prohibitions only against conventional broadcast services, not against subscription programming services such as cable and satellite. However, the prohibition against obscene programming applies to subscription programming services at all times. "

Back in 2004, Clear Channel Communications permanently removes Howard Stern from the air after the FCC fines it $495,000 for 18 violations from April 2003. That was already on top of multiple fines that Infinity broadcasting paid to FCC in years prior.

Later that year, Howard dropped a bombshell, by announcing a deal to leave terrestrial radio and join SIRIUS Satellite Radio in a mega multi-million dollar deal. Mr Stern was a clear and obvious target for the FCC who he challenged on various occasions, in interpretation of the aforementioned standards of decency and moral values. I for one at the time, applauded his decision. A technology solution actually expanded his reach over limitations of terrestrial/commercial radio, and gave him and many others an uncensored outlet.

Nov. 18, 2004: Stern appears in New York's Union Square and proclaims "the death of FM radio."

The former (CBS) was fined by the FCC for the now infamous 2004 The Jackson incident, which was described afterward as a "wardrobe malfunction," that as the LA Times states, triggered outrage among many viewers, who flooded the FCC with complaints. It led Congress to dramatically increase indecency fines, to $325,000 per station for an incident from $32,500.

Which brings us to today's headline:
Court tosses FCC 'wardrobe malfunction' fine

The story ran today in the LA Times, details the judgement against the FCC. "The ruling releases CBS from paying a $550,000 penalty levied for Janet Jackson's breast-baring incident during the 2004 Super Bowl halftime show. It's also a blow to the FCC's indecency policy. "

What I found particularly intriguing is that "The panel also found that CBS was not liable for the incident because Jackson and fellow performer Justin Timberlake, who pulled off part of Jackson's costume to reveal her breast at the end of their performance, were independent contractors, not network employees."

Mental note to CBS and others, never employ "provocative" employees. All those ladies trying to make it on television is stiletto heals and skin tight dresses, are fine to show off their goods for the sake of ratings, as long as they are contractors. Then who knows what kind of malfunctions would occur.

While accepting the Media Institute's Freedom of Speech Award in 2006, then Viacom Chairman Sumner Redstone said:

"Give the government the tools to punish those it doesn't like or silence what it doesn't want to hear, and you undermine democracy. Give people the tools to choose what they see and hear, and you enhance democracy."