Frequently Asked Questions
Regarding Obscene or Indecent Programming
What are the statutes and rules regarding the broadcast of obscene, indecent, and profane programming?
Title 18 of the United States Code, Section 1464, prohibits the utterance of “any obscene, indecent or profane language by means of radio
communication.” Consistent with a subsequent statute and court case, the Commission's rules prohibit the broadcast of indecent material during
the period of 6 a.m. and 10 p.m. FCC decisions also prohibit the broadcast of profane material between 6 a.m. and 10 p.m. Civil enforcement
of these requirements rests with the FCC, and is an important part of the FCC's overall Responsibilities. At the same time, the FCC must be
mindful of the First Amendment to the United States Constitution and Section 326 of the Communications Act, which prohibit the FCC from
censoring program material, or interfering with broadcasters' free speech rights.
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 3-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; and (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 our 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; and (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.
Does the FCC monitor particular radio or television programs?
The First Amendment to the U.S. Constitution and Section 326 of the Communications Act prohibit the FCC from censoring broadcasters.
The FCC does not, therefore, monitor particular programs or particular performers, but rather enforces the prohibition on obscenity,
indecency and profanity in response to complaints.
Does the FCC regulate violence on television?
The FCC does not currently regulate the broadcast of violent programming. On July 28, 2004, however, the FCC opened an inquiry into
violent programming and its effect on children. The FCC has received public comments and opinions from many segments of the public.
The FCC will publish and make available the report resolving the inquiry on the FCC website.
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.