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Obscene? Indecent? It’s Up To You to Say So

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Being a single voice for better quality media is a lonely job. But then so is being a security guard on a night shift. The big difference is the security guard rarely has strangers who, after learning of his occupation, start their next sentence with, “Why don’t you do something about…”

For me, the “something about” is followed by the name of a television show, popular song, or movie they have recently seen that offended them. And it’s up to me to fix it.

I have perfected my response, usually beginning with an empathetic agreement of how awful what they witnessed was, and then an attempt to hammer home the only hope for a solution to ending their source of offense: They need to take action as individuals.

Within this column, I want to concentrate on why your actions are so important in maintaining our broadcasting regulations. The Federal Communications Commission (FCC) regulates broadcast activities in the US through the use of your tax dollars.

What do you get in return? Download the consumer guide About the FCC [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-229127A1.pdf] and you’ll discover within the FCC’s sprawling architecture is the Media Bureau, the area devoted to broadcast regulation.

A quick hop to page 10 of the electronic document outlines the Media Bureau’s major priorities: Making sure Americans enjoy a smooth transition from analog to digital television (an activity surrounded by hot debate, undoubtedly absorbing countless hours of the bureau’s time), helping more citizens have access to broadcast programming through services like closed captioning and descriptive viewing information, keeping reigns on monopolistic media ownership, and implementing the provisions of the Children’s Television Act.

Below this list are the many divisions that facilitate the day-to-day rigors of maintaining an increasingly sophisticated communication environment. Putting it far too simply, the Media Bureau also makes sure that someone broadcasting on channel 4 isn’t causing interference for another broadcaster on channel 2.

Ultimately the FCC’s greatest responsibility in the commercial broadcast industry is to grant a license authorizing someone to use public frequencies to broadcast radio and television material. To keep this license, the station’s owner is bound to follow stringent technical specifications that allow the gadgets we rely on for entertainment and information to operate properly.

By now, if you’re thinking the FCC hasn’t much time, resources (or perhaps inclination) to concentrate on things like U2 rock star “Bono’s” exuberant acceptance of his award on network television at the Golden Globes which included the infamous sexual expletive – the “f-word” – you’ve come to the same conclusion as I.

A little more poking around on the FCC website reveals a page titled “Obscene and Indecent Broadcasts” [http://www.fcc.gov/cgb/consumerfacts/obscene.pdf] within yet another bureau: Consumer and Governmental Affairs. This small document appears to be the only shred of hope for parents who expect the Commission to take action against offensive broadcasts.

The FCC purports to regulate both “obscene” and “indecent” content. These two words are key to understanding what you have a right to complain about, and it’s important to know the definition of these terms from the FCC’s perspective.

The commission’s definition of obscene is directly quoted from an historic 1973 judgment (Miller v. California) that allows any such material to be exempted from First Amendment rights. To be judged obscene, the material in question must meet the following test:

• An average person, applying contemporary community standards, must find that the
material, as a whole, appeals to the prurient interest;
• The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
• The material, taken as a whole, must lack serious literary, artistic, political, or scientific value.

If something is considered obscene, it cannot be broadcast at any time. There is no exception for late nights or early mornings. That sounds great, but there’s a vital flaw.

The “test” for obscenity provided in 1973 is worded so that in essence, the age-old statement, “Everybody’s doing it,” redefines the definition of the word on a daily basis.

So what about “indecent?”

The FCC has defined broadcast indecency as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities.”

Because “indecent” isn’t “obscene,” the First Amendment protects indecent materials. That means they cannot be banned, however they can be restricted in order to avoid the reasonable risk that children may be present in the broadcast audience. Thus the FCC restricts the broadcast of indecent material between 6 AM and 10 PM each day.

By now you’ve likely put Bono’s remarks to the test. Using the law as my guide, I cannot say the famous sexual expletive used in this context is obscene. (Remember, that’s not my opinion – just my interpretation of the law.) But is it indecent?

Certainly this word describes a sexual activity, but consider again the statement “contemporary community standards.” The more we hear this word (and many others) as simple expletives, the more quickly it will become a common term when used in a non-sexual context.

(The MPAA already uses this test to measure the use of the f-word in movies. It’s usually permissible in small numbers in a PG-13 movie if used as a simple expletive and not as a direct description of a sexual act.)

This clarification of terms may seem long and laborious, but it’s important to understand the law before you set out on your mission – which consists of two parts.

First, it’s up to you to tell the FCC what you think is obscene and/or indecent. The FCC isn’t running a raft of VCR’s everyday to monitor every station’s content. The Commission instead relies on you to initiate action. In the document dealing with obscene and indecent material, the Commission advises:

“Enforcement actions in this area are based on documented complaints received from the public about indecent or obscene broadcasting.”

Following this statement, there are specific instructions to lodge a complaint, including the requirements for exact reporting of the name of the show, the station’s call sign, the time the incident occurred along with a tape or transcript of what you heard or saw in context with the rest of the program. In other words, “Somebody said the f-word” isn’t enough.

Aside from keeping a tape in your VCR that records everything you watch, at least keep pen and paper by your television and radio so you can write down exactly what is concerning you. Remember, the FCC requires you provide the actual wording or an exact description of the offending situation, or your complaint won’t be dealt with.

Once you’ve described your complaint, send your evidence (including a tape if you have it) to the address listed on this page [http://www.fcc.gov/cgb/consumerfacts/obscene.pdf].

Besides providing the obvious materials for the FCC to begin investigating a complaint, the sheer number of letters or emails reaching their offices can’t help but be a barometer of public opinion. Thus, the interpretation of contemporary society’s average tolerance (at least from the FCC’s perspective) can start to shift.

The second half of your mission is much more difficult, and yet is the true long-term solution.

Many propose that our media reflects society. I disagree.

For years, media has pushed the envelope. I heard the f-word commonly used in movies long before I heard it used as a routine adjective.

After living near a high school for twelve years, I can understand why any lawyer would immediately argue that Bono’s language is in keeping with what many average teens spout out of their mouths on a regular basis.

In an odd sort of way, if we haven’t suggested to our children to remove the habit of resorting to profanities as a common part of language (or if we haven’t done so ourselves), we have contributed to redefining the average used by the legal definitions spoken of here.

Likewise, we cannot look to obscenity laws to pull our society up from profanity and perversion, because our “contemporary community standards” will reflect us. With the current legal description we have to work with, the only way to redefine “obscene” is to change contemporary society – starting with each of us as individuals.

This “moral pollution” is really no different than how we have come to feel about air quality. We teach our children that we as individuals can make a difference to the environment, so is it wrong to suggest that monitoring our need to use profanity, our lust for sexual entertainment, or our desire for violent thrills wouldn’t have a similar effect on the legal view of “contemporary society?”

So next time I meet you, tell me you wrote about your complaint.

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About the Reviewer: Rod Gustafson

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