Behind the Deal: FCC Indecency Lessons

In addition to paying fines, Emmis Communications and Clear Channel Communications must also teach certain employees -- on-air talent and those who materially participate in programming decisions -- a

Cash contributions to the U.S. Treasury totaling more than $2 million are not enough to pay the king's ransom.

In addition to paying fines, Emmis Communications and Clear Channel Communications must also teach certain employees -- on-air talent and those who materially participate in programming decisions -- about "obscenity and indecency" and how to avoid broadcasting "material that the [Federal Communications Commission] does not permit broadcasters to air," state the Consent Decrees they entered with the FCC in recent months.

What will their employees learn from the training sessions? Although the broadcasters decline to comment, it's unlikely that the tutorials will emphasize obscenity, which encompasses situations beyond indecency. Defining an indecent broadcast is the first hurdle to clear.

Federal law makes it a crime to utter "any obscene, indecent or profane language" on the radio. Punishment is a fine, imprisonment up to two years or both.

However, there is a "safe harbor" time period during which "indecent" material may be broadcast -- between the hours of 10 p.m. and 6 a.m. when it's presumed that children will not be listening.

The FCC defines indecency as any language or material that, in context, depicts or describes "sexual or excretory organs or activities" in a way that is "patently offensive as measured by contemporary community standards for the broadcast medium."

What is patently offensive, and which community are they talking about?

There is little effective guidance. The commission's 30-page policy statement, prepared in 2001, offers fewer than 14 pages of examples. It states three principal factors the commission considers: the explicitness or graphic nature of the description of sexual or excretory organs or activities; whether the material dwells on, or repeats, the descriptions or activities; and whether the material appears to "pander," is used to "titillate" or appears to have been presented for its "shock value." This last factor is of particular importance, the policy notes.

An FCC spokeswoman says that a broadcaster must review this policy, FCC findings and court decisions to guide employees.

Attorney Michael Novak in Detroit, who represents more than 20 broadcast personalities, recently hired a researcher so he could digest "every radio indecency finding since 2000." After reviewing "only 30" cases in existence, "it's not realistic to suggest that an employee can be trained [on where to draw the line] with specificity," he concluded.

The examples are primarily extreme situations that lend little clarity to what may result in severe penalties, he says.

Some broadcasters continue to protest the lack of clarity in the standards the FCC employs. In response, however, FCC chairman Michael Powell warns broadcasters to stop urging the commission to provide rules describing prohibited acts or words.

In his remarks at the National Assn. of Broadcasters Summit on Responsible Programming in March, Powell said, "I want to warn you that this is unwise . . . Heavier government entanglement through a 'Dirty Conduct Code' will not only chill speech, it may deep-freeze it."

The chill factor may already be present, however. Emmis and Clear Channel not only paid hefty "contributions" to settle some claims, the Consent Decrees require them to suspend employees accused of airing or "materially participating" in a broadcast if the FCC issues a proposed action in the future.

If the action results in a final determination by the FCC that the program was obscene or indecent, the employees must be "terminated without delay."

Novak says, "In my experience, most broadcast talent do not want to run afoul of the law. They just want to do their jobs in the most entertaining way possible."

Right now, however, radio employees are "full of fear," a record label promotion rep says.

It will be an enormous challenge for morning-show talent to figure out "community standards" while they bring laughter to thousands of frustrated commuters. FCC materials state that the community standard doesn't change depending on the location of the station -- large city or small town.

The standard is that of an average broadcast listener and "not the sensibilities of any individual complainant."

However, the $300,000 Emmis settlement stemmed from three forfeiture orders, six pending claims and a request by the complaining individual to reconsider 21 previously denied complaints, all arising from one person's complaints about WKQX's "Mancow's Morning Madness" show in Chicago, according to an FCC spokeswoman.

As for the Clear Channel settlement, the spokeswoman says the number of individuals who complained was not readily available.

There also seems to be an overlapping between TV and radio complaints at the FCC. During testimony before Congress in February, Powell criticized violence on TV. Although violence isn't listed among the prohibited language or material for radio broadcasts, the Consent Decrees require Emmis and Clear Channel to "fully participate" with others in the broadcast, cable and satellite industries in efforts to develop an "industrywide response to indecency and violence."

Time will tell if the millions of dollars in recent settlements have already turned the chill factor into the fear factor. But don't count on the FCC issuing that do-and-don't list anytime soon.

As Powell said in his NAB remarks: "We should think twice before allowing the government the discretion to filter information to us as they see fit, for the king always takes his ransom."