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Timeline: broadcast decency

Compiled by Bill Kenworthy
First Amendment Center online

Aug. 13, 1912
Congress approves “An Act to regulate radio communication,” also known as the Radio Act of 1912. Although it was mainly concerned with seafaring vessels, this act did require all amateur radio operators to obtain a license from the secretary of commerce and labor and prevented them from transmitting over certain wavelengths.

Feb. 23, 1927
The Radio Act of 1927 is signed into law. This act established the Federal Radio Commission, whose responsibility was to regulate radio communications inside the United States “as public convenience, interest, or necessity requires.” The act gave the FRC the “authority to make special regulations applicable to radio stations engaged in chain broadcasting.” The act also stated that the FRC had no power to censor radio communications or interfere with free speech but did stipulate that “No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communications.”

Feb. 25, 1928
Charles Jenkins Laboratories obtains the first television license from the Federal Radio Commission.

March 9, 1931
The 9th U.S. Circuit Court of Appeals affirms the judgment of a federal district court in Oregon convicting Robert Gordon Duncan of “knowingly, unlawfully, willingly, and feloniously uttering obscene, indecent, and profane language by means of radio communication” in violation of the Radio Act of 1927. Duncan, by referring to an individual as “damned” and using the expression “By God” irreverently, became the first person convicted of broadcast indecency.

June 19, 1934
The Communications Act of 1934 is enacted by Congress. This act is essentially the same as the 1927 act, the major change being the replacement of the FRC with the Federal Communications Commission.

Dec. 12, 1937
The “Mae West Affair.” A mildly risqué radio skit known as the “Adam and Eve” sketch, featuring Mae West as Eve, causes a public uproar and earns NBC a written reprimand from the FCC.

1940
In the Mayflower Broadcasting decision, the FCC rules that stations could never editorialize. This ban becomes known as the Mayflower Doctrine and is considered the precursor of the Fairness Doctrine.

July 1, 1941
The first day of modern commercial television. The FCC grants WNBT-TV New York the first commercial TV license, making it the first commercial television station in the United States.

May 10, 1943
National Broadcasting Co. v. United States. The U.S. Supreme Court constructs the “scarcity” theory. The Court rules that the radio spectrum is a limited, or scarce, commodity that requires government regulation, in the form of licenses. “The facilities of radio are limited and therefore precious: they cannot be left to wasteful use without detriment to the public interest,” the Court writes. “The licensing system established by Congress in the Communications Act of 1934 was a proper exercise of its power over commerce. The standard it provided for the licensing of stations was the ‘public interest, convenience, or necessity.’ Denial of a station license on that ground, if valid under the Act, is not a denial of free speech.” This theory becomes the main rationale used to justify regulation of speech on the radio as opposed to print media.

May 25, 1944
First instance of television censorship. NBC turns off the sound on a performance of “We’re having a Baby” by Eddie Cantor because, according to NBC representatives, the song contains “objectionable” lyrics.

1948
The prohibition that “No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communications” is removed from the Communications Act of 1934 when Congress creates the U.S. Criminal Code. 18 USCA §1464 provides for a $10,000 fine and/or a two-year prison sentence for whoever violates the law. However, the FCC does retain the right, under a different section of the Communications Act, to enforce an indecency prohibition and assess fines.

1949
FCC issues a policy statement, “Report on Editorializing by Broadcast Licensees.” It marks the formal announcement of the Fairness Doctrine. It discards the Mayflower doctrine and recognizes that it is the duty of broadcasters to cover controversial issues as well as to provide contrasting views.

Jan. 6, 1957
Singer Elvis Presley appears on “The Ed Sullivan Show.” Cameramen are ordered to shoot only from the waist up, as Elvis’s pelvic gyrations were considered too suggestive for television.

Jan. 15, 1967
The Rolling Stones appear on the Sullivan show. Sullivan finds the chorus of the song “Let’s Spend the Night Together” “objectionable” so the Rolling Stones agree to change the lyrics to “Let’s spend some time together.”

June 9, 1969
Red Lion Broadcasting v. FCC. The U.S. Supreme Court revisits and upholds the scarcity theory, saying that “because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed.” The Court also upholds the Fairness Doctrine, asserting that broadcasters must give adequate coverage to public issues and that coverage must be fair, accurately reflecting opposing views. In addition, the Court holds that broadcasters must provide an opportunity for any individuals involved in a public issue to respond to any personal attacks made against them. “We think that the fairness doctrine and its component personal attack and political editorializing regulations are a legitimate exercise of congressionally delegated authority,” the justices write.

April 1, 1970
The FCC issues its first fine for broadcast indecency to Philadelphia radio station WUHY for airing a taped interview with Grateful Dead band member Jerry Garcia in which he used numerous expletives.

June 21, 1973
Miller v. California. This case provides the legal “definition” of obscenity and basic guidelines to determine what is obscene. (Obscene material has no First Amendment protection.) The guidelines are (a.) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b.) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c.) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

April 1975
The National Association of Broadcasters and the three major networks, ABC, CBS, and NBC, adopt the “family viewing” hour in an attempt to reduce the amount of violent and sexually oriented material on TV. (In 1976 a federal court in California declares the family viewing hour unconstitutional owing to FCC pressure on the networks to adopt the policy. The 9th U.S. Circuit Court of Appeals vacated the ruling in 1979 on jurisdictional issues, but the family viewing hour was never reinstated.)

July 3, 1978
FCC v. Pacifica, the “Seven Dirty Words Case.” The U.S. Supreme Court holds that an afternoon broadcast of comedian George Carlin’s “Seven Dirty Words” monologue was indecent and that the FCC was within its constitutional rights to impose sanctions on the radio station and regulate further indecent broadcasts. The Court says the FCC may regulate obscene, indecent or profane material and that although the monologue was not obscene, it was indecent. Prurient appeal, the Court notes, is not an essential component of indecent language as it is with obscene language. This finding basically puts indecent speech in another category. The Court observes that “of all forms of communication, it is broadcasting that has received the most limited First Amendment protection.” It gives two reasons. First, in what some call the “pervasiveness theory,” the Court says that “the broadcast media had established a uniquely pervasive presence in the lives of Americans.” Thus, one can be subjected to offensive material at any time while tuning from one station to another. Second, that “broadcasting is uniquely accessible to children, even those too young to read” justifies special treatment of broadcast material.

April 29, 1987
The FCC, in response to increasing complaints about content on the airwaves, decides the indecency standard used from 1975 to 1987 was “unduly narrow” and gives public notice that it will apply a more appropriate “generic definition of broadcast indecency.” The new definition involves “material that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium.” The FCC also puts broadcasters on notice that the accepted standard of airing indecent broadcasts after 10 p.m. was no longer a given and that broadcasts may still be in violation of the law if “there is a reasonable risk that children may be in the audience.” In addition, the FCC discards the “scarcity theory” as a basis for regulation of broadcast media.

July 2, 1988
The District of Columbia Circuit Court of Appeals upholds the generic definition the FCC has decided to apply to indecency complaints but rules that, “in view of the constitutionally protected expression interests at stake,” the FCC must give broadcasters clear notice of times at which indecent material may be aired.

Dec. 19, 1988
The FCC bars all indecent broadcasting. This 24-hour-a-day ban was a directive from Congress issued Oct. 1, 1988, as part of an appropriations bill.

May 17, 1991
The D.C. Circuit rules that the complete ban on indecent broadcasts is unconstitutional.

Jan. 19, 1993
The FCC, as directed by Congress in passing the Public Telecommunications Act of 1992, bars indecent programming from 6 a.m. to midnight.

Nov. 23, 1993
The D.C. Circuit, relying on its two previous rulings, holds that the new time restriction on indecent broadcasts is unconstitutional.

Aug. 18, 1995
The FCC, in compliance with previous decisions of the D.C. Circuit, limits its ban on the broadcast of indecent material to the hours of 6 a.m. to 10 p.m.

Sept. 1, 1995
Infinity Broadcasting reaches a settlement with the FCC to pay $1.7 million in fines for various violations by shock jock Howard Stern. This was, at the time, the largest cumulative fine for indecency ever paid.

Feb. 8, 1996
The Telecommunications Act of 1996 is signed into law. The law mandates that the broadcasting industry develop a rating system to identify sexual, violent or other indecent programming. It also required TV manufacturers to install the V-chip in all newly manufactured sets by Jan. 1, 2000.

Jan. 1, 1997
The TV Parental Guidelines ratings system is first put into use.

May 22, 2000
United States v. Playboy Entertainment Group. This case challenges a section of the Telecommunications Act of 1996. The section in question required cable-television operators who provided primarily sexually oriented programming either to fully scramble or fully block those channels or limit their programming to between 10 p.m. and 6 a.m. Playboy alleges that the statute is an unnecessarily restrictive, content-based restriction that violates the First Amendment. The Supreme Court agrees and declares the statute unconstitutional.

An important issue brought out in this case is the difference between cable television, which is not subject to FCC regulation, and regular broadcast media, which is regulated by the FCC. The key difference, as the Court pointed out, is that cable systems have the ability to block unwanted channels on a household-by-household basis. So if a household finds the content on a certain channel offensive, that household can contact the cable provider and have that channel blocked, thus avoiding the need for government supervision.

March 30, 2001
The FCC issues its first fine against a TV station when it fines Telemundo of Puerto Rico station WKAQ-TV for broadcasting “indecent material in apparent willful and repeated violation of” federal law. The broadcast in question, which appeared on the variety show “No te Duermas,” featured a scene showing a man and a woman in a bubble-filled bathtub. In the scene, the woman licks the man’s chest, winks and says she needs to look for her contact lens, then disappears underwater as the man smiles. The station argues that the scene merely contained sexual innuendo, but the FCC says the “sexual meaning was unmistakable.”

Jan. 19, 2003
Accepting a Golden Globe award, Bono, lead singer of the rock group U2, utters the phrase “this is really, really f***ing brilliant.” The FCC receives 234 complaints but decides that “the utterance did not violate federal restriction … because the language in question did not describe or depict sexual or excretory activities or organs.” Later, at the urging of FCC Chairman Michael Powell, the FCC reverses its decision but levies no fine.

Jan. 26, 2004
The FCC levies the largest single fine for indecency in history, to Clear Channel Communication. The radio chain is fined $755,000 for sexually explicit content that aired between 6:30 a.m. and 9 a.m. on the “Bubba the Love Sponge Show.”

Feb. 1, 2004
The “wardrobe malfunction” during the Super Bowl halftime show. This incident leads to a $550,000 fine issued to Viacom, the owner of CBS, and a crackdown on indecency by the FCC. A record $7.9 million in fines are issued in 2004. CBS is challenging the fine.

March 5, 2004
Thirty-nine members of the House of Representatives send a letter to FCC Chairman Michael Powell asking the agency to initiate a “Notice of Inquiry” on the issue of television violence and its impact on children.

March 18, 2004
The FCC reverses its decision regarding Bono’s use of the F-word during the Golden Globe awards, and says any use of that word, regardless of context or the number of times it is used, will be considered indecent and be subject to FCC fines.

June 9, 2004
Clear Channel Communications reaches a settlement with the FCC and agrees to pay a record $1.75 million in fines for a series of indecency complaints dating to 1995. The settlement does not include the $755,000 fine from January 2004.

Oct. 12, 2004
The FCC proposes the largest cumulative fine to date, against Fox Television Network. The FCC fines 169 Fox stations $7,000 each for a total of $1.18 million for an episode of “Married by America” which featured “strippers and various sexual situations.”  FOX is challenging the fine.

Nov. 11, 2004
Citing fear of FCC fines, 66 ABC affiliates decide not to show the movie “Saving Private Ryan” as part of their Veterans Day commemoration.

Jan. 25, 2005
Michigan GOP Rep. Fred Upton introduces H.R. 310, the Broadcast Decency Enforcement Act: “To increase the penalties for violations by television and radio broadcasters of the prohibitions against transmission of obscene, indecent, and profane material, and for other purposes.” The next day Sen. Sam Brownback, R-Kan., introduces a similar bill, S.193, in the Senate.

Feb. 16, 2005
The House votes 389-38 to pass the Broadcast Decency Enforcement Act.

March 14, 2005
West Virginia Senator Jay Rockefeller introduces S. 616 the “Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005.” This bill would allow the FCC to regulate, for the first time, cable and satellite programming and violence on regular broadcast television. The measure was referred to the Committee on Commerce, Science and Transportation where it died.

Nov. 29, 2005
The chairman of the Senate Committee on Commerce, Science, and Transportation, Sen. Ted Stevens, R-Alaska, holds an official Open Forum on Decency. He hopes to stimulate voluntary anti-indecency action by broadcasters.

Jan. 19, 2006
Stevens sponsors several more hearings on broadcast decency and other broadcasting issues. The panel includes executives from CBS, Motion Picture Association of America, Comcast Corp. and the National Association of Broadcasters. Broadcasters say the rating system and V-chip are adequate, and that parents need to learn how to use these tools.

March 15, 2006
The FCC proposes a new record fine against CBS for an episode of “Without a Trace” that “graphically depict[ed] teenage boys and girls participating in a sexual orgy.” The FCC fines 111 CBS affiliate stations $32,000 each, a total of $3.55 million. CBS is challenging the fine. The FCC also reviews a number of other shows about which it received complaints of so-called “fleeting obscenities” — obscenities uttered spontaneously during live broadcasts or in an isolated or fleeting manner within a broadcast — and decides not to issue any fines. “But for the fact that existing precedent would have permitted [these broadcasts], it would be appropriate to initiate a [fine] against [broadcasters] that broadcast the program prior to 10 p.m.,” the FCC says. The agency also puts broadcasters on notice that any usage of the F-word, S-word or any derivatives would be considered indecent.

April 14, 2006
The four major TV networks file a lawsuit against the FCC challenging its March indecency rulings. The networks are challenging the constitutionality of the rulings, saying the FCC standards for indecent language restrict free speech and are arbitrary, vague and have resulted in significant self-censorship. The case is Fox Television v. FCC.

May 18, 2006
The Senate passes the Broadcast Decency Enforcement Act by unanimous consent.

June 15, 2006
President Bush signs the Broadcast Decency Enforcement Act of 2005 into law. The law ups the maximum fine the FCC can impose per indecency violation tenfold, from $32,500 to $325,000.

Sept. 18, 2006
The 2nd U.S. Circuit Court of Appeals temporarily blocks parts of the FCC enforcement guidelines issued in 2004 and grants a request by the FCC to allow the agency to reconsider its findings.

Nov. 6, 2006
The FCC reverses two indecency rulings from its contentious March 2004 ruling.

April 25, 2007
The FCC releases the report “In the Matter of Violent Television and Its Impact on Children.” This is the report requested in 2004. Among the report's conclusions is that exposure to violence in the media can increase aggressive behavior in children; while there are constitutional barriers to regulating violent programming, the courts have provided a framework for regulating violent content; and the current “fixes,” i.e., the V-chip and the rating system, are not effective in protecting children from violent programming. The report sums up by saying that Congress could limit the hours when violent programming can be broadcast "and/or mandate some other form of consumer choice in obtaining video programming.”

June 4, 2007
The 2nd U.S. Circuit Court of Appeals reaches a decision in the Fox Television v. FCC case. In a 2-1 decision, the court ruled that the FCC policy, articulated in the March 2004 “Golden Globe” decision, regarding “fleeting expletives” “is arbitrary and capricious.” The court agreed with the networks that “there is no question that the FCC has changed its policy.” The majority did point out, however, that “agencies are … free to revise their rules and policies” but these changes must be accompanied with “a reasoned analysis for departing from prior precedent.” The court ruled that the FCC did not do this, thus its new policy was invalid.

Updated July 2007.



Related

FCC TV violence report

Indecency regulation: beyond broadcast?
By David L. Hudson Jr. Currently FCC can't restrict indecent content on cable or satellite services — but some would like to change that. 12.05.07

Online symposium: TV violence & the FCC

The FCC's Regulation of Indecency

Timeline: TV, regulation and broadcast violence


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