FCC Says Cut Smut or Shut Down
By Bill McConnell -- Broadcasting & Cable, 4/14/2003
A Supreme Court showdown appears to be brewing over the federal government's power to punish radio and TV stations for indecent or obscene broadcasts.
If the FCC makes good on recent—and unprecedented—threats to revoke permits of licensees that repeatedly violate restrictions on raunchy broadcasts, justices undoubtedly will be forced to settle a longstanding debate over the constitutionality of the commission's avowed authority to fine or shut down broadcasters for what is said on the air.
In a break from his own expressed reservations over FCC authority, FCC Chairman Michael Powell said the commission will revoke licenses of stations that repeatedly violate the agency's restrictions on broadcasts found obscene or harmful to children.
"At some point, enough is enough," Powell told broadcasters attending the NAB's convention in Las Vegas.
Powell's comments were a warning that an April 3 admonition to Infinity Radio for an indecent broadcast by the company's WKRK-FM Detroit extended to the entire industry.
"Revocation is an option under the law," Powell said, although "only the most egregious, willful, repeated flouting of the law will justify that penalty."
The FCC has fined many radio stations but has never exercised its declared right to revoke a license for violating indecency or obscenity rules. Some First Amendment experts dispute the FCC's stated authority and predict companies will defend licenses to the highest court rather than comply with a revocation order.
"It would likely lead to a landmark case," said Robert Corn-Revere, a Washington attorney specializing in First Amendment cases.
The 1978 Pacifica Radio Case that set the first precedents for current FCC indecency rules was upheld only because the FCC issued a letter of admonishment, Corn-Revere said, rather than levy a fine or other sanction. In his view, the rules are on shaky ground because the court later agreed to let Evergreen Media defend an indecent broadcast by WLUP(AM) Chicago on First Amendment grounds. Judges never ruled in that 1994 case because the FCC dropped a fine and agreed to publish indecency guidelines that would clarify when stations cross the line between bad taste and prohibited behavior.
"The question of the FCC's authority to revoke licenses has never been addressed by the Supreme Court, nor has there been occasion to look at financial penalties," he added.
The battle over indecency appears to be coming to a head as media critics and some FCC commissioners complain about increasingly provocative broadcasts by radio shock jocks. Infinity, which has been singled out by the FCC as a possible revocation target because of repeated violations, was fined $27,000 for a 4:30-5 p.m. segment of the Jan. 9, 2002, Deminski & Doyle show, in which nine callers each described an extreme or violent sexual act.
Current rules state that between 6 a.m. and 10 p.m., when children are most likely to be in the audience, broadcasters can't air indecent content "describing or depicting sexual or excretory organs or activities" in a way "patently offensive by contemporary community standards."
