FCC's Role in Regulating Indecency
The following explanation of the history and duties of the FCC is excerpted from Seth T. Goldsamt, " 'Crucified
by the FCC'? Howard Stern, the FCC, and Selective Prosecution," The Columbia Journal of Law and Social
Problems, Vol. 28, Winter 1995, pp.203, 206-210. Reproduced by permission of the copyright holder,
The Columbia Journal of Law and Social Problems.
The precursor to the FCC was the Federal Radio Commission ("FRC"), which Congress established through the
Radio Act of 1927. The sole purpose of the FRC was to deal with problems of radio interference, as Congress
empowered the FRC to allocate specific frequencies to broadcasters and to deny license applications when there
was no more room for new stations.
Dissatisfied with radio regulation and sensing that the FRC required broader authority as well as a separate
administrative staff, Congress established the FCC through the Communications Act of 1934 ("The Act"). The
Act repealed and superseded the Radio Act of 1927 and gave the FCC broad powers to regulate not only radio
communications, but also interstate telephone and telegraph communications. The Act requires the FCC to
encourage the larger and more effective use of radio in the public interest.
Since the various branches of the federal government exert influence on the FCC, communications law and policy
is a political process. The House of Representatives, by controlling the appropriations process, influences the
FCC's activities. The President, with the power to appoint commissioners, also affects the FCC's agenda. The
Senate must confirm the President's nominations for Commissioners. The FCC is directed by five Commissioners
and is headed by a Chairman, who is also designated by the President. The Commissioners' terms are staggered,
and no more than three Commissioners can be members of the same political party.
As a regulatory agency, the FCC has executive, legislative, and judicial functions. The FCC enforces the
Communications Act, adopts and enforces administrative rules and regulations, and performs research concerning
the broadcast industry. It develops regulatory policies and proposes new legislation to Congress to amend the
Communications Act. The FCC is empowered to grant licenses to broadcasters and suspend licenses for
violations of the Act. The FCC also engages in litigation activities, enforcing orders, and defending itself against
aggrieved parties in court. Additionally, the FCC is empowered to review its enforcement decisions.
The Act empowers the FCC to impose fines or forfeitures for violations of the Act after the FCC has made
inquiries on its own motion. The FCC's Procedural Manual instructs that the FCC's duty is to address concerns of
the entire community other than with the personal preferences or grievances of the individuals. In practice,
however, the FCC's method for regulating indecent broadcasting has been
reactive: the Agency merely responds to listener complaints rather than monitoring and initiating investigations
on its own motion. The danger of such a procedure is that vocal members of the community and organized interest
groups are given the opportunity to steer the FCC's regulation of indecent broadcasting.
The FCC has at its disposal various penalties to address violations of the Act, such as warnings and fines. After
the FCC assesses a penalty, the aggrieved party may petition the FCC for a rehearing. Administrative Law
Judges preside over hearings and issue initial decisions. Unless the Commission specifies otherwise, the next
level of appeal is with the FCC's Review Board. The Review Board's decisions may be appealed to the FCC's
Commissioners. After review by the Commissioners, the issue may be appealed to federal court."
THE FCC AND THE REGULATION OF BROADCAST INDECENCY
The FCC is authorized to regulate broadcast indecency through its fining power. In addition, the FCC may
regulate and sanction broadcasters of indecent material by suspending their licenses, issuing cease and desist
orders, revoking licenses, or denying applications for broadcast licenses. The current provision outlawing the
radio broadcast of obscene, indecent, or profane language was enacted in 1948. This
section provides for fines or imprisonment for those who have broadcast such language. Congress, however, has
denied the FCC the power to censor the airwaves. Section 326 of the Act provides:
Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the
radio communications or signals transmitted by any radio station, and no regulation or condition shall be
promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio
communication.
Because the FCC is charged with regulating broadcast indecency, but
prohibited from interfering with the "right of free speech," the regulation of broadcast indecency has proved
controversial. The FCC has struggled with broadcasters when it has instituted and applied indecency standards.
After all, one listener's Howard Stern is another listener's Larry King.