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Indecent proposals

FCC issues guidelines on enforcement of raunchy material 11/01/2008 08:00:00 PM Eastern

Editors' note: Some language in this story may offend you. We print it as a matter of record.

Nearly seven years behind schedule, the FCC is giving broadcasters some help predicting what programming will get them in trouble.

The FCC agreed in 1994 to prepare indecency guidelines as part of a settlement with then-Evergreen Media's WLUP(AM) Chicago. The guidelines were due in 1995, but, while the FCC for years has been reviewing indecency cases under policies nearly identical to those issued last week, a comprehensive guideline had never been published.

By offering a formal policy, new FCC Chairman Michael Powell is making good on his promise to clear a backlog of agency rulemakings and other obligations.

"The guidance we offer—a restatement of existing statutory, regulatory and judicial law—establishes a measure of clarity in an inherently subjective area," said Commissioner Susan Ness.

Under a 1995 court decision, broadcasters are forbidden to air or "indecent" content between 10 p.m. and 6 a.m. Pinpointing what is indecent has always been tricky. Technically, indecent programming "describes or depicts" sexual or excretory organs or activities in a way that is "patently offensive by contemporary community standards."

What does that really mean? The FCC offered case-by-case examples of broadcasts ruled indecent in recent years.

Some examples blatantly violated the guidelines, the FCC said. WSUC-FM Cortland, N.Y., was fined for airing a rap song including the lyrics "the only thing that was on my mind, was just shoving my dick up this bitch's behind."

But less explicit material, including innuendo and double entendre, also may be ruled indecent. For instance, KGB-FM San Diego was fined for lyrics such as "pulled out my Whopper" for a "Sweettart" to go "down on my Tootsie Roll."

Even if part of the material is difficult to understand, stations can be sanctioned, the FCC said. For instance, WWKX(FM) Woonsocket, R.I., was fined though it bleeped out "fuck" and "dick." The sanction was justified, the FCC said, because the words were "recognizable, notwithstanding the editing."

But the FCC passed on a TV broadcast of a sex-ed class which demonstrated birth control methods and relied on realistic models of sex organs and an Oprah Winfrey program about female masturbation.

The guidance was found wanting by critics on both sides of the issue.

"What I don't see in the guidelines is any way to treat something that might be considered a close case. If you have doubt about programming you might put on, these guideline don't help you much," said Washington attorney Robert Corn-Revere. Corn-Revere noted that the FCC has dismissed many complaints about broadcasts that more closely scrape bounds of indecency rules than the exonerated examples.

Commissioner Gloria Tristani, on the other hand, complained that the guidance doesn't satisfy the 1994 agreement and "perpetuates the myth" that standards have been too vague. Finally, she complained that drafting the guidance distracted the agency from an "ongoing problem of lax enforcement." Tristani has repeatedly objected to FCC dismissals of indecency complaints.

Readers wishing to read the guidelines can see them on the FCC's Web site by going to www.fcc.gov/eb/Orders/2001.

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