Subject: FCC Might Rescind Indecency Ruling After Court Throws Out 24-Hour Ban 
Date: Published: 5/20/91 (83 lines)
Source: Wall Street Journal. Copyright Dow Jones & Co. Inc.

    FCC Might Rescind Indecency Ruling
    After Court Throws Out 24-Hour Ban
    ----
    By Mary Lu Carnevale
    Staff Reporter of The Wall Street Journal

    WASHINGTON -- The Federal Communications Commission may be
 forced to allow indecent material to be broadcast during
 limited hours, following an appeals court decision throwing
 out the commission's 24-hour-a-day ban.
    A appeals court panel here, as expected, reiterated that
 broadcast material deemed indecent is protected by the First
 Amendment and told the agency it must reconsider its 1988
 ban.  Delivering a setback to anti-pornography activists, the
 court said the FCC must return to an abandoned policy of
 allowing "safe harbor" hours during which indecent material
 can be aired.  The court, however, didn't specify what those
 hours should be.
    Until 1987, the commission allowed indecent material to be
 used between 10 p.m. and 6 a.m., figuring that few children
 were in the audience at that hour and that most parents were
 home to monitor what their children were watching.  That year,
 it rolled the hours back to midnight to 6 a.m.  -- but an
 appeals court panel threw out that ruling, saying the agency
 hadn't demonstrated that such a limitation was necessary to
 protect children.
    The FCC adopted the total ban to comply with a
 congressional mandate in 1988, but hasn't enforced the rules
 and had asked the court for more time to beef up its
 justification for the ban.
    The FCC's ban on indecent broadcasts was challenged by
 Action for Children's Television, which has argued that it is
 inappropriate to ban indecent speech.  "Protecting children
 from indecent speech doesn't mean reducing the medium to a
 child's level," said Washington attorney Henry Geller, who
 represented ACT. 
    "Our emphasis is encouraging more and better programming
 for children," said Peggy Charren, founder of ACT. 
 "Censorship isn't the answer."
    According to the FCC, broadcast indecency "is language or
 material that, in context, depicts or describes, in terms
 patently offensive as measured by contemporary community
 standards for the broadcast medium, sexual or excretory
 activities or organs."  Obscene material has two additional
 elements:  it appeals to prurient interests and lacks
 redeeming social value.
    In arguments before the appeals court, the FCC justified
 the 24-hour ban with a survey showing that significant
 numbers of children are part of broadcast audiences at all
 hours of the day and night.
    FCC Chairman Alfred Sikes expressed disappointment with
 the decision, and said the commission "will continue to study
 the court's opinion and will be discussing any future action
 with the solicitor general's office."
    Robert Pettit, general counsel for the agency, said the
 commission will be deciding whether to seek a review by the
 full appeals court or take the matter to the Supreme Court.
 In recent years, the commission has received a steady stream
 of consumer complaints about indecent broadcasts liberally
 peppered with earthy conversation.  Even if the ban is scaled
 back, those broadcasts would remain a subject for FCC
 enforcement, Mr. Pettit said.
    Opponents of the 24-hour ban said it would eliminate some
 programs that have substantial social value, such as dramatic
 shows or documentaries on such topics as AIDS, that may
 contain portions considered indecent.
    The FCC adopted its rule to comply with a congressional
 order, and the court acknowledged the agency's difficult
 position.  "It would be unseemly for a regulatory agency to
 throw down the gauntlet, even a gauntlet grounded on the
 Constitution to Congress," it said in an opinion written by
 Chief Judge Abner Mikva.  "But just as the FCC may not ignore
 the dictates of the legislative branch, neither may the
 judiciary ignore its independent duty to check the
 constitutional excesses of Congress."

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