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Home My WebLink About1991 Cable AccessCABLE TV INDECENCY CASES: 1. Jones v. Wilkinson 800 F.2d 989 (61 RR 2d 1) (10th Cir. 1986) aff'd 102 S.Ct. 1559 (1987) 2. Community Television v. Wilkinson 611 F.Supp. 1099 (D. Utah 1985) 3. Cruz v. Ferre 571 F. Supp. 125 (S.D. Fla. 1985) aff'd 755 F.2d 1415 (11th Cir. 1985) 4. Community Television ,of Utah v. Roy City 555 F.Supp. 1164 (D. Utah 1982) BROADCAST INDECENCY: 1. Action for Children's Television v. FCC 852 F.2d 1332 (D.C. Cir. 1988) 2. Action for Children's Television v. FCC 906 F.2d 752 (D.C. Cir. 1989) INDECENCY RE: DIAL -A -PORN 1. Sable Communications.v. FCC 492 U.S. , 109 S.Ct. 2829 106 L.Ed. 2d 93 (1989) 9 JOHN L. GROW Counsel STATE OF NEW YORK Commission on Cable Television Tower Building - Empire State Plaza Albany, NY 12223 (518) 474-1359 2 Cable TV and New Media August 1990 BOARD OF EDITORS Chairman JAMES C. GOODALE Debevoise & Plimpton New York Editors -in -Chief DAVID M. RICE Garden City, N.Y. MICHAEL BOTEIN New York Law School New York Editor's ROBERT R. BRUCE Debevoise & Plimpton Washington, D.C. ROBERT S. LEMLE Senior Vice President & General Counsel Cablevision Systems Corp. Woodbury, New York FRANK W. LLOYD Mintz. Levin, Cohn, Ferris, Glovsky & Popeo, P: C. Washington, D.C. JOHN R. REDPATH, JR. General Counsel Home Box Office Inc New York LEONARD TOW, PH.D. President Century Communications Corp. New Canaan, Connecticut Publisher MICHAEL LAUCHHEIMER BOARD OF CONTRIBUTORS LEONARD J. BAXT Dow, Lohnes & Albertson Washington, D.C. BENSON H. BEGUN Vice President, Business Affairs -Twentieth Century -Fox TeleCommunications Los Angeles TYRONE BROWN Steptoe & Johnson Washington, D.C. CHARLES M. DALFEN Barrister & Solicitor Hull. Quebec LARRY F. DARBY Darby Associates Washington, D. C. ROBERT ERBURU President and Chief Executive Officer The Times-Mirror Company Los Angeles TRUMAN W. EUSTIS III Senior Attorney New York Times Company New York BRENDA LEE FOX General Counsel National Cable Television Association Washington. D.C. HENRY GELLER Director, Washington Center for Public Policy Research Duke University Washington, D.C. CHARLES H. KADLEC Frazier Gross & Kadlec, Inc. Washington. D. C. ERWIN G. KRASNOW Vemer, Upton. Bernhard, McPherson & Hand Washington, D.C. NEWTON N. MINOW Sidley & Austin Chicago PROF. BARRY ORTON University of Wisconsin Madison, Wisconsin ALAN PEARCE President Information Age Economics, Inc. Washington, D.C. KEVIN L REYMOND Senior Manager Price Waterhouse New York HARLAN ROSENZWEIG President Group W Satellite Communications Stamford, Connecticut GARY W. SCHOBER President Berkeley Varitronics, Inc. Edison, New Jersey JACK VALENTI President Motion Picture Association of America Washington, D.C. RICHARD E. WILEY Wiley. Rein & Fielding Washington. D. C. masa ®a F.C.C. Watch By Robert R. Bruce On July 12, the FCC unanimously adopted a report which concludes that the statutory 24 -hour -a -day ban on broadcast indecency is constitutional (MM D.ocket 89-494). The report will now be forwarded to the U.S. Circuit Court of Appeals for the District of Columbia, where the ban has been challenged in Action for Children's Television v. FCC, No. 88-1916 (D.C. Cir.) As previously discussed here (see Cable TV & New Media, March 1990, p. 2), Congress, led by Sen. Jesse Helms (R—N.C.), passed legislation in September 1988 designed "to protect children from exposure to indecent material" by banning the broadcast of "indecent" programming on a 24 -hour -a -day basis. Thereafter, the Commission promulgated regulations designed to implement the statutory ban, but in January 1989, before those regulations went into effect, the Court of Appeals issued a stay at the behest of a coalition of broadcasters, journalists and civil rights groups who had sued for review of the new regulations. Sable Set Indecency Standard Before the Court of Appeals had scheduled briefing and oral argument, the U.S. Supreme Court ruled in Sable Communications, Inc. v. FCC, 109 S.Ct. 2829 (1989), a case raising similar issues in the context of telephone communications, that indecent speech may be regulated if it promotes a "compelling" governmental interest and is "narrowly tailored" to serve that interest. In light of Sable, the D.C. Circuit granted the FCC's request for a remand in ACT v. FCC, allowing the Commission to receive public comment and collect data relevant to the application of the Sable test to a 24-hour broadcast indecency ban. The report adopted by the Commission after consideration of such comments and data concludes that such a ban was constitutionally permissible under Sable's "compelling interest"/ "nar- rowly tailored" test. The FCC's report finds that there is a compelling national interest in preventing children from exposure to indecent material broadcast over the airwaves. The Commission based this conclusion, in part, on the 92,500 letters received from the public with respect to the issue, of which 88,000 were in favor of a total ban. Thus, despite the fact that broadcasters were virtually unanimous in their opposition to a blanket ban, the Commission concluded that a total ban reflects the will of both the American public and Congress. `Sufficiently Narrow Means' Even more controversial is the Commission's finding that a blanket ban was "a sufficiently narrow means of preventing access to indecent broadcasts by children," and thus did not impermissibly infringe upon broadcasters' rights. The report concludes that children are in the radio and television audiences at all hours of the day and that only a 24-hour ban on indecency would avoid exposing them to such things as nudity and vulgar language over the airwaves. The FCC's conclusions about children's listening and viewing habits were based on new audience ratings data compiled by Arbitron, which found that there were some children listening to the radio and watching television at all hours of the day and night. The Commission concluded that alternatives, such as time channeling and technological restrictions such as lock boxes, were "insufficient to protect • Continued on Page 7: Mr. Bruce is a member of the Washington, D.C., office of the New York firm of.; Debevoise & Plimpton. • • August 1990 Cable TV and New Media 7 is Today's Cable System Realty Worth? Continued from Page 6 the annual rate of return is close to 20 percent. With a 10 multiple, it is a still - respectable 17.5 percent. Assume that the shares of this cable company are selling at slightly more than a 50 percent discount to asset value. Debt is $1.15 billion, or $11.50 per share, and equity is $950 million, or $9.50 per share. Now, assume that the stock is at $4.50, or a 53 percent dis- count to net asset value. As the table shows, private -market value (calculated as 12 times cable cash flow, less debt) is expected to grow 27.7 percent annually over the next five years and 22.7 percent annu- ally over the decade. If the current sizeable discount to net asset value did not improve at all, the stock price still would rise 27.7 percent per year, or 2.7 times over the next five years. If the market sorts itself out and values return to the middle of the his- torical range (i.e., a 30 percent dis- count) the stock price in yearfive would be $16.84 in this example — nearly quadruple the current value of $4.50 per share. Less Leverage, Lower Returns A less highly leveraged or underlev- eraged system would yield different results, since it would have earnings and pay taxes. Free cash flow com- pound growth rates over the first dec- ade might be about 27 percent versus 40.6 percent in the model, and internal rates of return would fall in the 15.3 to 15.9 percent range versus 18.3 to 18.9 percent for the more highly leveraged system. To yield a 15 percent after-tax return, one could pay up to $2,285 per subscriber for the underleveraged system. Right now, cable stocks are cheap. On more traditional earnings -per- share and cash-flow measures, public investors may be better off, at least in the short run, with the stock of under - The author is vice presidentt at Donaldson, Lufkin & Jenrette in New York City. phi leveraged MSOs. For a private investor, however, re- turns may be greater in a leveraged situation. The difference relates to the impact of book depreciation and the level of interest payments. Conclusions The conclusions to be drawn are that: 1. Without further acquisitions, cable bottom lines, cash flow and in- come will likely be among the fastest growing of all businesses, even under a likely rate regulated scenario; and 2. Whichever way one slices it, cable stocks are undervalued. One can convert from the private - market value basis (which the market dislikes) to cash flow or to discretionary cash flow to prove it, either on the basis of near-term prospects for underlever- aged MSOs, or to discount the likely stock price based on earnings and cash flow five years out for the more highly leveraged operators. F.C.C.Watch Continued from Page 2 children from exposure to harmful programming. Other Conclusions Among the Commission's other conclusions are: • To define "children" as minors 17 years of age and under. This would be consistent with various state regulations, such as those which prohibit the sale of sexually explicit materials to minors. Previously, the Commission had used a 12 -and -under standard. • To retain the Commission's definition of "indecency" as meaning, for purposes of broadcasting, "language that describes, in terms patently offen- sive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs? That definition has been upheld by the courts, and thus was not viewed as needing to be changed. • A finding that adults have access to altemative sources of indecent materials. Enforcement Action Under its new chairman, Alfred Sikes, the FCC has already developed a repu- tation for taking a strong stand against broadcasters found to have broadcast obscene or indecent material in violation of its rules. The Commission's Mass Media Bureau took enforcement action against eight broadcasters in October 1989, and has disposed of all documented indecency complaints pending as of August 1989. Currently, obscene material is prohibited from the airwaves at all times and indecent material is banned from 6 a.m. to 8 p.m., subject to a fine of up to $25,000 for each violation with a maximum fine of $200,000. The Commission's rules do not apply to cable television, however, because a subscription is required for ac- cess. The Commission has also modified its enforcement policy "to ensure consis- tencywith constitutional requirements expressed by the Supreme Court" in Sable. Under the new policy, stations alleged to have violated the indecency ban can offer, as a defense, evidence that children were not in the broadcast audience when the programming at issue was aired. The full text of the Commission's Report is expected to be released by late August. SIVA tv 2 Cable.TV and New Media February 1991 I BOARD OF EDITORS Chairman JAMES C. GOODALE Debevoise & Plimpton New York Editors -In -Chief DAVID M. RICE Carle Place N.Y. MICHAEL ROTEtN New York Law School New York Editors ROBERT R. BRUCE Debevoise & Plimpton Washington, D.C. ROBERT S. LEMLE Senior Vice President & General Counsel Cablevision Systems Corp. Woodbury' New York FRANK W. LLOYD Mintz, Levin, Cohn, Ferris, Glovsky & Popeo Washington D.C. JOHN R. REDPATH, JR. General Counsel Home Box Office Inc. New York LEONARD TOW, PH.D. President Century Communications Corp. New Canaan, Connecticut Publisher STUART M. WISE BOARD OF CONTRIBUTORS LEONARD J. BAXT Dow Lohnes & Albertson BENSON H. BEGUN Vice President, Business Affairs Twentieth�ee Century -Fox Telecommunications TYRONEIBROWN Steptoe&Johnson Washington FEN Barrister & Solicitor LARRY F DARBY Darby Agssociates ROBERT EPBURU President and Chief Executive Officer The Times-Mirror Company Los Angeles TRUMAN W. EUSTIS III Senior Attorney New York Times Company New York BRENDA LEE FOX General Counsel Nationall Cable Television Association SANDRA FRESCHI Frazier Gross & Kadlec, Inc. Manta HENRY GELLER Director, Washington Center for Public Policy Research Duke University Washington D.C. ERWIN G. ItRASNOW Vemer,,ggLtiipfert, Bernhard, McPherson & Hand NEWTON 14. D.C.IOW Sidley & Austin Chita o PROF. BARRY ORTON University of Wisconsin Madison Wisconsin • ALAN PEARCE President Information Age Economics, Inc. Washington D.C. KEVIN L. REYMOND Senior Manager Price Waterhouse New York HARLAN ROSENZWEIG President GroupW Satellite Communications Stamford ConnecticutO President Berkeley Varitronics, Inc. JACK VALENTIsey President Motion ggPicture Association of America Washington D.C. EY Wiley, Rein & Fielding Washington, D. C. F.C.C. Wtch MEM MEIN By Robert R. Bruce ONCE AGAIN, indecency is giving the FCC fits. Following a 1989 court-ordered stay of enforcement, the Commission found itself last month in the somewhat awkward position of having to defend its own — and Congress' — 24-hour ban on indecent broadcasts. In Action for Children's Television v. FCC, No. 88-1916, the U.S. Circuit Court of Appeals for the District of Columbia has concluded hearing arguments on the constitutional challenge brought by broadcasters against the ban. FCC General Counsel Robert Pettit tried to justify the draconian nature of the prohibition on the basis of the record that the Commission had developed. Although Mr. Pettit tried valiantly to convince the panel that the ban should pass constitutional muster, the consensus of observers was that the court would strike down the 24-hour rule. In 1988, Congress enacted legislation that forbade the broadcasting of indecent material at anytime of the day. The legislation superseded what had been the FCC's more modest, but nonetheless still controversial, policy that permitted indecent broadcasts during a "safe harbor" period between midnight and 6 a.m., when it was thought that children would be least likely to be listening. Infringes on. Rights of Broadcasters Before both the FCC and the court, the coalitionchallenging the 24-hour ban argued that it is overbroad and infringes on the rights of broadcasters and adult audiences in an effort to protect children. They have emphasized that because indecent speech is protected by the First Amendment, government regulation(such as the ban) is unconstitutional unless the regulation is the most narrowly tailored means of furthering a compelling government interest. Broadcasters have contin- ued to attack the vagueness and uncertainty of the FCC's definition of indecency. In jousting with Mr. Pettit, Chief Judge Abner J. Mikva led the D.C. Circuit panel in disagreeing with the Commission's assertion that the complete bar was a con- stitutionally permissible restriction of speech. He expressed skepticism that the congressional ban was the least restrictive means of furthering a compelling interest in protecting children from indecent programming. By comparison with the flat ban on indecent programming (regardless of the time of day, the nature of the programming, or the composition of the audience), the FCC's prior policies had drawn relatively "fine lines," according to Chief Judge Mikva. Further, he asserted, Congress had explicitly targeted (and sought to remove) any "safe harbors" or narrowly tailored alternatives to the 24-hour rule. Mr. Pettit had no choice but to concede that that was the case. The Least Restrictive Means? The panel did not question the Commission's assertion that the government has a strong interest in protecting children from indecent programming. It took strong issue, however, with Mr. Pettit's claim that the 24-hour rule was the least restrictive means of achieving that goal. In particular, the questions indicated that the judges were unconvinced by the evidence andanalysis in the FCC's Report (MM Docket 89-494), which had been prepared to support its position that the ban was necessary to protect the mental and physical well-being of children. Continued on Page 7 Mr. Bruce is a member of the Washington, D.C. office of the New York firm of Debevoise & Plimpton. Feb,Lary 1,991 Cable TV and New Media 7 MDS Attacks Continued from Page 3 filed by TVCN, a Denver MMDS and SMATV operator, against both ESPN and TNT. TV Communications Net- work, Inc. v. ESPN, Inc., Civ. No. 90- F-864 (D. Colo.). TVCN failed initially in its Sherman Act Sec. 2 claims be- cause it defined the relevant national market as "the ESPN and TNT chan- nels," and Chief Judge Sherman G. Finesilver held that every manufac- turer "has a natural monopoly over its own product" Moreover, he held, "in general, a business entity has a qualified right to deal with whom it pleases." Unless TVCN could demonstrate "no valid business reasonforthe refusal to deal, section two does not restrict the long recognized right to freely exercise in- dependent discretion as to the parties with whom to deal." TVCN alleged an "essential facilities" exception to this rule, but since ESPN/TNT and TVCN occupy different market levels in the program distribution chain, the pro- grammer had not denied an essential facility to a "competitor." No Monopoly Power Judge Finesilver also refused to find that cable operators possessed mo- nopoly power in the relevant market, "subscription television in the Denver metropolitan area." TVCN failed to demonstrate that cable operators en- joyed "the power to control prices." Operators' rates varied widely, under- cutting the complaint's claim of price fixing. The court also held the Robin- son-Patman Act, which only covers price discrimination in tangible com- modities, inapplicable. While some dicta in these cases may help cable operators and pro- grammers faced with antitrust charges stemming from refusal to deal with MMDS and SMATV, and perhaps eventually DBS, complaints drawn up by more experienced antitrust counsel in Tight of the guidance provided by these two opinions may be successful in at least getting past threshold dis- missal motions. 1"-‘ F.C.C. . :TBtCn Continued from Page 2 The FCC had asked the court to remand the Action for Children's Television case in light of the Supreme Court's decision in Sable Communications Inc. v. FCC. (See Cable TV & New Media, August 1990, p. 2.) On remand, the Commis- sion initiated the proceeding to build a record that the ban was the most narrowly tailored means of protecting children from indecent broadcasting. The Report, based on audience ratings data, concluded that because children are in the broadcast audience at all times of the day and night, a complete ban on indecent programming is necessary. The Report claimed that alternative solu- tions, such as parental supervision, lock boxes and scrambling devices, were insufficient to advance fully the government's interest. Unsympathetic to the FCC's Bind The panel also appeared to take exception to the Report's definition of children as persons under the age of 17 and to the fact that the FCC did not narrow its definition of indecency to counteract the overbreadth of the congressional ban. In addition, Circuit Judge Harry T. Edwards rebuffed Mr. Pettit's suggestion that the ban should be sustained because there were alternative outlets, apart from over - the -air broadcasts, for adults who wished to view indecent programming. The panel seemed sympathetic to the bind in which the FCC had been put. Nonetheless, it seems unlikely that the court will ultimately side with the Commis- sion. If the ban is declared unconstitutional, the FCC ultimately may have to justify its daytime -only rule. Indeed, immediately before Congress enacted the present ban, the appeals court had asked the FCC to present evidence that the midnight - to -6 a.m. ban was not arbitrary. Inthe meantime, it isfairto assume that the Sikes Commissionwill remain active in enforcing the strongest ban that it believes it can justify. Nevertheless, a more relaxed approach may prevail in some situations, such as the decision discussed below. Are News Broadcasts Exempt From FCC's Indecency Rules? IN A JANUARY decision that at least one Commissioner thinks could open the floodgates toward regular use of the FCC's "seven dirty words"on commercial broadcasts, the Commission affirmed dismissal of an indecency complaint against National Public Radio's "All Things Considered." NPR had aired a recorded telephone conversation of John Gotti, an alleged mobster, that con- tained repetitions of one of the FCC's (and the Pacifica Supreme Court's) seven dirty words. The Mass Media Bureau had dismissed the complaint against NPR in October 1989. In affirming that decision, the FCC noted that the program segment "was an integral part of a bona fide news story concerning organized crime." In so doing, it may have created a news exemption for enforcement of its indecency rules. Commissioner Ervin S. Duggan was the lone dissenter from the Commission's decision, but he did so with great vigor. He argued that the repetition of the forbidden word was, regardless of context, deliberate, repeated and gratuitous and that the decision could open the floodgates to broadcasters who would, he suggested, "be given carte blanche to incorporate indecent material into news or public affairs programming." Appeals Court Affirms FCC'S Indecency Policy By Jeanine Averse WASHINGTON — The U.S. Court of Appeals here last week affirmed the Federal Communications Com- mission's 1 -year-old indecency policy for TV and radio broad- casters, but remanded to the agency for further review its newly established midnight -6 a.m. "safe harbor" period, the hours when broadcasters can safely air "indecent" ma- terial. The case was brought to court by the Big Three broad- cast networks and 14 other media organizations, including the National Association of Broadcasters and Action for Children's Television, a watchdog group. The FCC's stricter policy, which defines indeceny as ma- terial that is "patently of- fensive" as measured by "con- temporary community stan- dards" replaced the agency's longstanding "seven dirty words" yardstick. Challengers criticized the FCC's policy as overbroad and unconstitutionally vague. The appeals court said the agency does have the right to regulate indecent materia] over the airways and agreed with the agency's new definition of indecent material. It also said the FCC has the authority to channel indecent programs to time slots when there is not a "reasonable risk" that children are in the audience. However, the court ques- tioned how the FCC arrived at its midnight -6 a.m. safe - harbor period and instructed the agency to re-examine that portion of its indeceny policy. The current safe harbor re- placed one that allowed broad- casters to begin airing indecent programs at 10 p.m. FCC Chairman Dennis Patrick, who said he was "de- lighted" by the court's deci- sion, said the agency would soon initiate a proceeding to address the court's concerns about the safe -harbor period. PA SCTE Group To Hold Meeting WILLOW GROVE, PA — The Delaware Valley Chapter of the Society of Cable Tele- vision Engineers will hold a meeting Aug. 17 highlighting high-definition television, Super VHS and impulse -pay- per-view. The meeting will be held at the Williamson Restaurant here, said a spokesperson for the group. For more infor- mation, contact Diana Riley, 717-764-1436. 0 The NAB, however, which does support a safe -harbor period, was pleased the court affirmed the practice. Ex- plained Jeff Baumann, NAB's executive vice president and general counsel: "The court has recognized that a safe harbor is vital to the constitu- tionality of any regulation of Multichannel.News — August 1, 1988 indecent programming. Any attempt by the FCC or Con- gress to eliminate a safe harbor clearly would be unconstitu- tional " The court's finding was par- ticularly timely because last week the Senate passed a bill that would effectively wipe out the agency's safe harbor. The bill was offered by Sen. Jesse Helms (R -SC) (see story, page 101. Mr. Baumann said the court's ruling is the "last nail in the coffin of (Sen. Helms') proposal . " Indecency, unlike obscenity, is protected under the First Amendment but is subject to time, place and manner re- strictions, FCC General Coun- sel Diane Killory has said. NAB and the other 16 challengers wanted the court to clarify the FCC's definition of indecent material because, op- ponents said, it is too broad. NAB was disappointed with this aspect of the court ruling, said Mr. Baumann, who did not know if the NAB would 11 appeal the decision. Challengers contend that without the FCC exempting material that has serious scien- tific, literary, artistic, social or political value, certain pro- gramming — such as a special about AIDS — could be de- emed indecent. The FCC has said it would look at the context of allegedly indecent scenes when de- termining whether a violation has occurred. It said it would not make sweeping decisions in this area. ❑ 'YI 'j11t14111ry111 `. lw,1tAt Has Flexibili Cablecon Cable -in -Conduit (CIC) provides you with flexibility when installing trunk, feeder, or drop cables in underground CATV applications. CIC is a low-cost method of protecting coaxial cables and can be universally used in trench, vibratory plow, and street cut applications. Cablecon's polyethylene conduit is formed by continually extruding it as a pipe over the cable assembly ... permitting it to be manufactured to almost any desired length. Crush resistant, yet flexible, it is much easier to handle than PVC during installation... greatly 1"with 500 jacketed, flooded coax. 44, Up4VIWI11'lln''1�,1;;'I"'1i°)n;�� nut,u gllllllllw ".' 141141/ %" with RG service wire 11/" with 750 jacketed, flooded coax. reducing installation time and overall labor costs. Why direct -bury coax when you have Cablecon's added Now from Integral... 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Currently, sta- tions can broadcast indecent programs during the Federal Communications Commission - established "safe harbor" period, which runs from mid- night to6a.m. The amendment — which would wipe out the FCC's safe -harbor period was of- fered by Sen. Jesse Helms (R- SC) to a broad funding bill for the Commerce, State and Jus- tice departments and other federal agencies. Under the proposal, the FCC would craft a set of' regu- lations to enforce the 24 -hour - a -day ban on indecent ma- terial. Those regulations would have to be completed by. Jan . 1, 1989. They would not apply to cable television . The safe harbor gites broadcasters a green light if they want to pump out garbage over the a airways,". Sen Helms said . He questioned the rationale of how the FCC can rule that . a program or com- mercial would be indecent at 8 p . m . but not indecent at mid- night, and he cited three in- decency cases. "The (FCC) on its own, has ruled that all three of these examples, and many . others like them, are indecent ma- terial before midnight, but come the stroke of midnight, bong, bong, bong, bong, it is okay . And, it is okay up until the clockstrikes 6 in the morn- ing. Now, what kind of sense June 1988 This Notice Appears As A Matter of Record Only. SOLD: Arkavision Cable TV Serving: Hughes, Wilson, Horseshoe Lake, Elaine, Tyronza, Turrell, Gilmore, Joyner, Bassett and Crawfordsville, Arkansas. Friar's Point, Jonestown, Crowder, Moon Lake and Lula, Mississippi SOLD TO: Douglas Communications Corp. 11 Pat Thompson Co. represented the seller Phi Thonmsm Co. July 1988 This Notice Appears As A Matter of Record Only. SOLD: NORTH CENTRAL CABLE, INC. Serving: Wrightstown, Reedsville and Larsen; Wisconsin SOLD TO: American Television & Communications Corp. Pat Thompson Co. represented the seller, Pot Thopiroeon. 'o. does that make? It is outrageous," Sen . Helms said . The FCC has• said indecent. speech is protected under the First Amendment, but is sub- ject to time, place and manner restrictions. But, Sen . Helms claims that indecent speech is not .protect- ed and is in direct contradic- tion to the 1934 Communica- tions Act, the body of law that largely governs TV and radio broadcasters. An "anti- censorship" provision in the act does -not prevent the FCC from banning indecent pro- grams on TV and radio, Rep . Helms said. FCC General Counsel Diane Killory has said the agency's indecency policy is aimed at protecting children . It is not intended to deny adults programming and offer them only programs suitable for a young audience. FCC Chairman Dennis Patrick said. the FCC will "continue its active enforce- ment of whatever statutory scheme the Congress ultimate- ly adopts . "❑ Cable. Penetration At 52.8%: Nielsen NEW YORK — Nielsen Media Research has estimated cable penetration at 52.8 per- cent of television households in July, up from 52 percent in May and 49.5 percent a year earlier. The annual increase was the largest since cable's 67 RR 2d CASES In the Matter of ENFORCEMENT OF PROHIBTTIONS AGAINST BROADCAST INDECENCY IN 18 USC §1464 Adopted: July 12, 1990 Released: August 6, 1990 FCC 90-264 37981 MM Docket No. 89-494 [10326, 53:24(RX23), 533999] Indecent broadcast programming constitutionality of 24-hour ban. A 24-hour prohibition on indecent broadcast programming is constitutional. A 24-hour ban serves the compelling governmental interest in protecting children from indecent material and is narrowly tailored to serve that interest, in conformity with the standard enunciated by the Supreme Court in Sable Communications [66 RR 2d 9691 for the regulation of constitutionally protected speech. A complete ban on indecent material is warranted because studies have established that significant numbers of unsupervised children are in the broadcast audience at all times of the day and night. No alternatives, such as time channeling or ratings and warnings, permit effective parental control over children's access to indecent programming; technologies which do permit such control may be feasible but are not currently available. (Further, adults can still access indecent material through media other than over -the -air broadcasting should they so desire.) In sum, then, the compelling government interest in protecting children from indecent broadcasts would not be promoted effectively by any means more narrowly tailored than a 2A -hour prohibition. Broadcast Indecency, 67 RR 2d 1714 [1990]- [10326, 53?A(R)(23), 533999] Indecent broadcast programming defenses to enforcement actions; evidence that children are not in the broadcast audience. Broadcast stations defending against an indecency complaint will be permitted to demonstrate through ratings data or other probative evidence that children typically are not in the broadcast audience for the market in question during the day and time the allegedly indecent programming was aired. This policy will ensure that enforcement of the 24-hour ban on indecent broadcast material is narrowly tailored to situations in which there is in fact a risk that children are in the audience. Broadcast Indecency, 67 RR 2d 1714 [1990]. REPORT OF THE COMMISSION (Proceeding Terminated) By the Commission: (Commissioner Quello concurring and issuing a statement.) Table of Contents Subject Paragraph I. Introduction 1 II. Background 4 III. Discussion 10 A. Constitutional Standard 11 B. Governmental Interest 14 C. Operative Definitions 24 1. Definition of Indecency 24 2. Definition of Children 28 D. Narrowly Tailored Means 34 1. Accessibility to Children 34 2. Children's Listening and Viewing Habits 38 a. Radio 39 b. Television 50 c. Supervision 57 d. Conclusions 65 E. Alternatives to 24 -Hour Prohibition 69 1. Time Channeling 70 2. Ratings and Warning Devices 76 3. Broadcast Technologies 80 F. Non -Broadcast Alternative Programming Sources 84 G. Enforcement 89 IV. Conclusion 91 V. Ordering Clauses 94 Page 1714 Report No. 43-37 (9/10/90) BROADCAST INDECENCY I. Introduction 1. In this report we respond to a remand of the record granted by the U.S. Court of Appeals for the District of Columbia Circuit in Action for Children's Television v. FCC (ACT II).1 In its remand order, the Court di- rected the Commission to conduct a "full and fair hearing" on the constitutionality of a statutory provision2 which requires the Commission to prohibit the broadcast of indecent material 24 hours a days The Court granted the remand in light of the Supreme Court's recent decision in Sable Communications of California, Inc. v. FCC (Sable), which held that Government may regulate indecent speech if the regulation promotes a "com- pelling" government interest and is "narrowly tailored" to serve that interest. The Commission accordingly issued a Notice of Inquiry (NOI)5 to solicit public comment on issues relevant to analyzing the validity of the 24-hour indecent broadcasting prohibition in view of the Sable decision.6 2. After careful consideration of the responses to our inquiry, we conclude that a 24-hour prohibition on in- decent broadcasts comports with the constitutional standard the Supreme Court enunciated in Sable for the reg- ulation of constitutionally protected speech. First, the Supreme Court has expressly recognized the government's compelling interest in protecting children from broadcast indecency, both to facilitate parental supervision and to promote the well-being of children who may be exposed to indecent material. Moreover, the narrowness with which courts have interpreted "obscenity" has commensurably broadened the range of patently offensive material that could be deemed "indecent" if broadcast, rendering the government interest in protecting children even more compelling. Second, the record in this proceeding reveals that no alternative to a 24-hour prohibition on indecent broadcasts would effectively serve this government interest. The best available evidence indicates that there is a reasonable risk that significant numbers of children ages 17 and under listen to radio and view television at all times of day and night. Neither time channeling nor ratings and warning devices permit effec- tive parental control over these activities, and technologies that may permit control are not currently available. On the other hand, indecent material similar to that broadcast is readily available on other media over which parents can exercise control. Accordingly, we conclude that the compelling government interest in protecting children from indecent broadcasts would not be promoted effectively by any means more narrowly tailored than a 24-hour prohibition. 3. We recognize, however, that there may be instances in which children are not in the broadcast audience at a given time of day in a given market. We therefore have decided to modify our enforcement procedures to per- mit stations accused of airing indecent material to demonstrate that children in fact are not present in the broadcast audience in their market at the time the alleged indecent program was aired. We believe that, as thus enforced, the 24-hour prohibition against broadcast indecency clearly meets the narrowly tailored criteria ap- plied by the Supreme Court in Sable. II. Background 4. This proceeding addresses Section 1464 of the Criminal Code, 18 USC §1464 (1988), first enacted by the Radio Act of 1927, reenacted by the Communications Act of 1934, and later codified in the Criminal Code. Throughout this period of more than 60 years, Section 1464 and its identical predecessor provisions have pro- hibited the broadcast of indecent language. Since 1934, the Commission has been authorized by the Communi- cations Act to enforce Section 1464's provisions by, among other things, assessing forfeitures for its violation. 5. In 1978, the Supreme Court affirmed the Commission's enforcement of Section 1464's prohibition on inde- cent broadcasting, including the Commission's definition of indecent language.8 FCC v. Pacifica Foundation (Pacifica), 438 US 726 [43 RR 2d 493] (1978); see also Action for Children's Television v. FCC, 852 F2d 1332, 1339 [65 RR 2d 45] (DC Cir 1988) (ACT I). In Pacifica, the Court also reaffirmed its holding in Ginsberg v. 1. No. 88-1916 (DC Cir Sept. 13, 1989). 2. The Commission's 1989 appropriations law states: "By Jan. 31, 1989, the Federal Communications Commission shall promulgate regulations in accordance with Section 1464, Title 18, United States Code, to enforce the provisions of such section on a 24-hour per day basis." Making Appropriations for the Department of Commerce, Justice, and State, and Judiciary, and Related Agencies for the Fiscal Year Ending Sept. 30, 1989, and fr Other Purposes, P.L. No. 100-459, Section 608, 102 Stat 2186, 2228 (1988). 3. Enforcement of the FCC regulation promulgating the 24-hour prohibition, codified at 47 ClIt §73.3999 (1989), was stayed pending judicial review by the Court inACT Il. 4. 109 S Ct 2829 [66 RR 2d 969] (1989). 5. 4 FCC Rcd 8358 (1989). 6. We received over 92,500 formal and informal responses to our NOI. Almost 88,000 informal letters supported a 24-hour prohibition, while approximately 4,500 letters opposed it. Formal commenters are listed in Appendix A, and the informal comments have been placed in the docket file. American Family Ass'n et al. (AFA) filed its reply comments one day late. In the interest of assembling a full and complete record, and the lack of prejudice resulting to any party, we will accept those comments. 7. See 47 USC §§312(a)(6) and (b), 503(b)(1)(D) (1988). 8. The Commission's definition of indecent language remains "language that describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." Pacifica Foundation, 56 FCC 2d 94, at 98, 100 [32 RR 2d 1331] (1975). In our Reconsideration Order we explained that we separately consider the nature of the material involved and the time of broadcast because the time of broadcast is pertinent to whether the broadcast is actionable, rather than to whether it is indecent. See 3 FCC Rcd 930, 936 [64 RR 2d 211] n. 6 (1987); ACT I at 1338 n. 8. Copyright 1990, Pike & Fischer, Inc. 67 RR 2d Page 1715 67 RR 2d CASES New York° "that the government's interest in the `well-being of its youth' and in supporting `parents' claim to authority in their own household' justified regulation of otherwise protected expression." The Court found that these concerns, along with the broadcast media's uniquely pervasive presence and unique access to children, jus- tified special treatment of the broadcast of indecent material. Id. at 748-749. 6. In ACT I, the D.C. Circuit Court affirmed the Commission's action in one case involving the daytime broadcast of indecent material, but remanded for further explanation to other cases involving broadcasts aired after 10 p.m. In the two cases remanded, the Court found that the Commission had not adequately justified its narrowing the "safe harbor" during which indecent material could be broadcast from the hours of 10 p.m. -6 a.m. to midnight -6 a.m. The Court also rejected the Commission's suggestion that channeling decisions could be made on a case-by-case basis, finding that such an approach could have a chilling effect on broadcasters' exer- cise of their First Amendment rights. Thus, the Court directed the Commission to afford broadcasters clear no- tice of reasonably determined times at which indecent material safely may be aired. 7. Shortly after the ACT I decision, Congress directed the Commission to enforce the broadcast indecency pro- visions of Section 1464 on a 24-hour basis. ° In response, the Commission promulgated the rule which now is at issue in this case.11 A number of petitioners challenged the rule, and on Jan. 23, 1989, the D.C. Circuit in ACT II stayed its implementation pending judicial review. 8. Before briefing and oral argument had occurred on the merits of the 24-hour prohibition, the Supreme Court, in its Sable decision, addressed the extent to which the government may regulate indecent telephone mes- sages. After noting that indecent speech is protected by the First Amendment, the Supreme Court nevertheless affirmed that "[t]he government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." Sable, 109 S Ct at 2836. Restating the point later in its opinion, the Court described the relevant constitutional standard as requiring that the means chosen by the government be "carefully tailored" or "narrowly tailored" to achieve the regulatory ends. Id. at 2839. 9. The Supreme Court in Sable distinguished the telephone medium from the broadcast medium, noting that "unlike an unexpected outburst on a radio broadcast, the message received by one who places a call to a "dial -a - porn" service is not so invasive or surprising that it prevents an unwilling listener from avoiding exposure to it." 109 S Ct at 2837. Also, in a concurring opinion, Justice Scalia suggested that indecent broadcasts could be pro- hibited if data demonstrate "the infeasibility of alternate means to provide ... adequate protection of minors." Id. at 2840 (Scalia, J., concurring). III. Discussion 10. As noted above, based on the record in this proceeding and the Court's decision in Sable, we believe that the Commission's enforcement of a 24-hour prohibition on indecent broadcast programming comports with the First Amendment. Using the "compelling interest/narrowly tailored" standard set forth in Sable, we conclude that a 24-hour prohibition is the most narrowly tailored means of effectively promoting the government's com- pelling interest in protecting children from broadcast indecency because there is a reasonable risk that a signifi- cant number of children are in the broadcast audience at all times of day and night. In addition, we find that (1) "children" are appropriately defined as minors 17 and under; (2) the government has a compelling interest in regulating children's access to indecent broadcast material, as the courts and Congress consistently have found; (3) our definition of indecency is not vague or overbroad and, in fact, repeatedly has been upheld by the courts; (4) other alternatives for protecting children, such as ratings, warning devices, or lock -out mechanisms would be ineffective; (5) because the risk of exposure to children exists even in the late evening and early mornings hours, a time channeling approach would not protect children from indecent broadcast materials; and (6) adults have alternative sources of indecent materials. In order to tailor our enforcement of the 24-hour prohibition on indecent broadcasting as narrowly as possible, however, in actual cases of alleged indecent broadcasting, stations will be permitted to demonstrate that children were not in fact present in the broadcast audience for the market at the time the programming at issue aired. A. Constitutional Standard 11. Several parties argue that the constitutionality of the indecency prohibition should be judged under the time, place and manner standard, rather than the more rigorous compelling interest/narrowly tailored standard applied by the Supreme Court in Sable.12 However, based upon the Supreme Court's having applied the more demanding test in Sable, and similar views expressed by the D.C. Circuit in ACT I that content -based 9. 390 US 629 (1968). In Ginsbog, the Court upheld a state statute that prohibited the sale to minors (17 and under) of sexual material deemed by the legislature to be obscene as to children. 10. See n. 2, supra. 11. 47 CH( §733999 (1989). See Onier in Enforcement of Prohibitions Against B/casting Obscenity and Indecency in 18 USC §1464, 4 FCC Rcd 457165 RR 2d 1038] (1988). 12. Morality in Media (MIM) Comments at 23-32; Salem Communications Corp. and Focus on the Family (Salem) Reply Comments at 24-27. Page 1716 Report No. 43-37 (9/10/90) BROADCAST INDECENCY restrictions are sustainable only if "the regulation is a precisely drawn means of serving a compelling state inter- est,n13 we believe it appropriate to apply the more rigorous standard. 12. It is well established that the First Amendment does not protect obscene speech, and that therefore the government has broad authority to regulate commerce in obscenity without reference to First Amendment prin- ciples. Sable, 109 S Ct at 2835; Paris Adult Theatre I v. Slaton, 413 US 49, 69 (1973); Roth v. United States, 354 US 476, 481 (1957). In contrast, as the Supreme Court observed in Sable, "[s]exual expression which is indecent but not obscene is protected by the First Amendment...." 109 S Ct at 2836. See also Pacifica, 438 US at 743 (Stevens, J.), 756 (Powell, J.). Nonetheless, the Supreme Court has indicated that it will uphold governmental regulation of indecent speech if the regulation meets the constitutional standards that the Court has articulated. 13. In Sable, the Court set forth the constitutional standard that governs restrictions on protected speech: the government may "regulate the content of constitutionally protected speech in order to promote a compelling in- terest if it chooses the least restrictive means to further the articulated interest." 109 S Ct at 2836. The Court also stated that the means chosen by the government must be "carefully tailored" or "narrowly tailored" to achieve the regulatory ends. Id. at 2836, 2839. While the standard has been expressed with somewhat different wording,14 we understand it to require, essentially, a showing that the regulation or statute serves a compelling governmental interest and is narrowly tailored to serve that interest. This standard is substantially more rigorous than the time, place and manner test applied to content -neutral regulation of speech,15 which requires only that the regulation be a reasonable means of serving "a significant governmental interest" and that it leave "ample al- ternative channels for communication." Consolidated Edison Co. of New York v. Public Service Comm'n of New York, 447 US at 535. See also Clark v. Community for Creative Nonviolence, 468 US 288, 293 (1984); Regan v. Time, Inc. 468 US 641, 648 (1984). B. Governmental Interest 14. In effectuating our statutory mandate, our primary concern has been and remains the protection of children from exposure to indecent materials. See 134 Cong Rec S9912 (daily ed. July 26, 1988) (statement of Senator Helms); Reconsideration Order, 3 FCC Rcd 930, 931 (1987), aff'd in relevant part sub nom. ACT I, 852 F2d at 1340; Pacifica Foundation, 56 FCC 2d at 97, recon. denied, 59 FCC 2d 892 [36 RR ld 1008] (1976), rev'd, Pa- cifica Foundation v. FCC, 556 F2d 9 [40 RR ld 99] (DC Cir 1977); rev'd, Pacifica, 438 US 726. In both Pacif- ica and Sable the Supreme Court recognized the government's interest in assisting parental supervision of their children and, generally, in protecting the well-being of youth, citing Ginsberg v. New York, 390 US 629, 639 (1968). Sable, 109 S Ct at 2836; Pacifica, 438 US at 749-750. In the NOI, we solicited comment on whether a 24-hour prohibition of broadcast indecency advances this interest. We also noted that courts have recognized an alternative governmental interest in protecting the public's right to be free from indecent material in the privacy of their homes, and sought comment on this point. 15. Although parties generally agree that the government has an interest in protecting minors from indecent broadcasts, they differ on the scope of that interest. Some parties maintain that the government's sole legitimate interest is to facilitate parental supervision, and not to substitute governmental for parental supervision.16 In contrast, Morality in Media (MIM) argues that a 24-hour prohibition on broadcast indecency advances an inde- pendent governmental interest in the well-being of minors,17 and that the Pacifica decision can be read to es- tablish an "indecent for all" (including adults) standard, and not merely an "indecent for children" standard.18 On the other hand, Broadcasters argue that there is no legitimate interest in protecting adults from indecency, as adults have a right to receive constitutionally protected indecent materia1.1 Several commenters argue that a 24-hour prohibition also advances a governmental interest in protecting the public's right to be free from inde- cent material in the privacy of their homes.20 Cohn and Marks (C&M) disagrees, arguing that adults, unlike 13. ACT I at 1343 n. 18, quoting Consolidated Edison Co. v. Public Service Comm'n, 447 US 530, 540 (1980). 14. Cf. United States v. Grace, 461 US 171, 177 (1983) (regulations must be "narrowly drawn to accomplish a compelling govemmental interest); Consolidated Edison Co. of New York v. Public Service Comm'n of New York, 447 US 530, 540 (1980) (regulation must be "a precisely drawn means of serving a compelling state interest"); Schaumberg v. Citizens for a Better Environment, 444 US 620, 637 (1980) (law invalid because state's interest could be "served by measures less intrusive"); Cornelius v. NAACP Legal Defense and Educational Fund, 473 t4S 788, 800 (1985) (state can exclude speakers if "compelling state interest" and "narrowly drawn exclusion"); Peny Education Ass'n v. Peny Local Educators Alen, 460 US 37, 45 (1983) (government must show that "regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end"); and First Nat'l Bank of Boston v. Bellotti, 435 US 765, 786 (1978) ("closely drawn to avoid unnecessary abridgment," quoting Buckley v. Valeo, 424 US 1, 25 (1976) (pa curiam)). 15. See ACT I at 1343 n. 18. 16. Capital Cities/ABC (ABC) Comments at 28; Pacifica Foundation et at (Pacifica) Comments at 32; P.E.N. American Center el al. (PEN) Comments at 9; Cohn and Marks (C&M) Comments at 20; and Comments submitted jointly by a number of broadcasters and organizations, including the National Assn of B/esters, CBS, Inc., Action for Children's Television, and the American Civil Liberties Union et al. (hereinafter collectively referred to as 'Broadcasters") at 19, 23. 17. MIM Reply Comments at 15-16. 18. MIM Comments at 4-5. 19. Broadcasters Comments at 5-6. 20. MIM Comments at 12-14; AFA Comments at 2-7; Salem Reply Comments at 49-53. Copyright 1990, Pike & Fischer. Inc. 67 RR 2d Page 1717 67 RR 2d CASES children are capable of receiving the "first blow" from constitutionally protected indecent speech without undue damage.it 16. It is well established that protecting children from exposure to indecent material is a compelling govern- mental interest. See e.g., Sable, 109 S Ct at 2836; New York v. Ferber, 458 US 747, 756-57 (1982); Ginsberg v. New York, 390 US 629, 639-40 (1968); Carlin Communications, Inc. v. FCC, 749 F2d 113, 121 [57 RR ld 163] (2d Cir 1984). Two related rationales underlie this interest. First, as the Court explained in Ginsberg and reit- erated in Pacifica, see 438 US at 749-750, "parents' claim to authority in their own household to direct the rear- ing of their children is basic in the structure of our society," and parents are "entitled to the support of laws de- signed to aid discharge of that responsibility." 390 US at 639. Thus, the regulation of broadcast indecency is intended "to facilitate parental supervision of children's listening." ACT I, 852 F2d at 1343. In addition, the Supreme Court has expressly stated that "a State's interest in `safeguarding the physical and psychological well- being of a minor' is `compelling.' " New York v. Ferber, 458 US at 756-57, quoting Globe Newspaper Co. v. Su- perior Court, 457 US 596, 607 (1982). As stated by the Court in Ginsberg, "[t]he State also has an independent interest in the well-being of its youth." 390 US at 640. The Court quoted with approval from People v. Kahan, 15 NY 2d 311, 312, 206 NE 2d 333, 334 (CA NY 1965) (Fuld, J., concurring), which dealt with the sale of sex- ually explicit material to children: While the supervision of children's reading may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society's transcendent interest in pro- tecting the welfare of children justify reasonable regulation of the sale and material to them. It is, therefore, altogether fitting and proper for a state to include in a statute designed to regulate the sale of pornography to children special standards, broader than those embodied in legislation aimed at controlling dissemination of such material to adults. 390 US at 640. See also Prince v. Massachusetts, 321 US 158, 165 (1944) (state interest in protecting "the wel- fare of children" and preventing abuses that might prevent their "growth into free and independent well- developed men and citizens").22 These two related purposes, supporting parental supervision and promoting the well-being of youth, support the enforcement of narrowly drawn measures to restrict children's access to indecent materials. 17. Despite the fact that protecting children from exposure to indecent material is recognized as a compelling governmental interest, some parties, including P.E.N. American Center at al. (PEN) and Broadcasters, argue that there is no proof that exposure to indecent broadcasts harms children. Broadcasters submit a study that con- cludes that few studies have been performed regarding harm resulting from indecency and that there is little evidence of harm to children.23 On the other hand, Salem Communications Corp. (Salem) and American Family Ass'n et al. (AFA) submit studies to support their argument that exposure to indecent broadcasting has the po- tential to harm children. For exampze4, AFA submitted findings from a clinical psychologist who concludes that children are harmed by.lpornography. 18. The debate over harm to children is not at issue here. Irrespective of the continuing social science debate, the courts have recognized Congress's authority, derived from the governmental interest in protecting its youth, to regulate access by children to indecent material. As a legal matter, it is well established that exposure of children to such material may be harmful, even if that effect has not been completely proven scientifically. See Pacifica, 438 US at 757-58 (Powell, J., concurring); Ginsberg, 390 US at 641-43. In proscribing the dissemina- tion of indecent material to minors, Congress has considered testimony that cites its harmful effects and has re- sponded not only with the statute and mandate before us in this particular case, but also with the passage of other statutes that limit the availability of indecent material to minors.25 For example, Congress has acted to 21. C&M Comments at 19 n. 28. C&M's reference to absorbing the "first blow" derives from Pacifica, 438 US at 749: 'To say that one may avoid further offense by turning off the radio when he hears indecent language is hie saying that the remedy for an accault is to run away after the first blow." See also n. 29, infra 22. There seems to have been some understandable confusion in the past as to the extent to which we relied on both of these two purposes — supporting parental supervision and promoting the well-being of youth — in serving the compelling interest of protecting children. Compare, e.g., Reconsideration Order, 3 FCC Rcd at 930 para. 3, with 3 FCC Rcd 931 para. 11. The Court inACT I understood the Commission's position as based solely on its interest in supporting parental authority. ACT I, 852 F2d at 1343. However, the Supreme Court in various cases, including Ginsberg, Pacifica and Sable, has recognized a broader governmental interest in protecting children which goes beyond merely supporting parental supervision, and Congress specifically referenced this broader interest in directing the adoption of the 24-hour prohibition on broadcast indecency. See 134 Cong. Rec. S9912 (daily ed. July 26, 1988) (statement of Sen. Helms). We take this occasion to state that, consistent with Congress's direction, the broader view more accurately reflects what we seek to accomplish — specifically, to support parental supervision and to promote generally the well-being of youth. 23. Broadcasters Comments at Appendix A. 24. AFA Reply Comments at Appendix 2. In defining pornography, Victor B. Cline, author of the study, noted that "something could be regarded as 'pornographic' but still not be legally obscene? Id. at 1. 25. See Telephone Decency Act of 1987, Hearing Before the Subcommittee on Telecommunications and Finance of the U.S. House of Representatives Committee on Energy and Commerce, 100th Cong., 1st Sess. (Serial No. 100-99, Sept. 30, 1987) at pp. 22-26, 27, 63-64, 96-97; Cable-Pom and 'Dial A-Pom"Control Act Hearing Before the Subcommittee on Criminal Law of the United States Senate Committee on the Judiciary, 99th Cong., 1st Sess. (July 31, 1985, Serial No. J-99-46) at pp. 103, 135-138. Page 1718 Report No. 43-37 (9/10/90) BROADCAST INDECENCY protect minors from indecent telephone messages,26 and the Supreme Court in Sable fully recognized Congress's authority to do so (although it held that Congress in that case had not sufficiently tailored its effort to serve this interest). See 109 S Ct at 2839. Similarly, in 1984, Congress required cable operators to make available to their customers a device to enable them to control reception of indecent programming to protect minors from inad- vertent access. See 47 USC §544(d)(2)(A). More broadly, the Supreme Court has upheld, in the face of a First Amendment challenge, a Congressional statute which protects the public, and particularly children, from un- wanted mail which the recipient considers offensively lewd. See 39 USC §§3008 and 3010 (1988); Rowan v. Post Office Dep't, 397 US 728 (1970). These statutes evidence findings by Congress that children deserve protection from harm that indecent material may inflict. It is significant that the 24-hour prohibition specifically has been mandated by the Congress, and although Congress is not the ultimate interpreter of the Constitution, its findings and purposes are due deference as those of a co -equal branch of government charged with providing for the general welfare of the United States. See Metro B/casting v. FCC, No. 89-453, 58 USLW 5053, 5061 [67 RR 2d 1353] (U.S. June 27, 1990). 19. Our concern with the harm to children caused by exposure to indecent broadcast material is particularly strong given the range of materials that could be included in the "indecent" programming category (and thus conceivably could be broadcast between 8 p.m. and 6 a.m., given the current restrictions on our enforcement authority). As Justice Scalia noted in his Sable concurrence, "the more narrow the understanding of what is `obscene,' and hence the more pornographic what is embraced within the residual category of `indecency' the more reasonable it becomes to insist upon greater assurance of insulation from minors." Sable, 109 S Ct at 2839 (Scalia, J., concurring). 20. It thus is significant that the courts have applied a very narrow definition of obscenity in ruling on porno- graphic films, holding that movies containing graphic depictions of sex acts, such as "Deep Throat" and "Debbie Does Dallas," are not legally obscene.27 We recognize that these cases have not involved the broadcast media and that most broadcasters are likely to exercise self-restraint and not air such movies unedited. Our own enforce- ment actions demonstrate, however, that some broadcasters have been willing to air patently offensive, sexually explicit material that would seem to tread close to the obscenity line.28 21. The broad range of sexually -oriented material that has been or could be considered indecent or "protected speech" -- but not obscene speech -- accordingly heightens our concerns for preventing harm to children. Spe- cifically, we find that Justice Scalia's statement in Sable is extremely relevant in the broadcast indecency context. It has become "more reasonable ... to insist upon greater assurance of insulation from minors" in light of the extremely pornographic nature of what may be encompassed within the category of broadcast indecency. 22. Although the Commission has focused on the government's interest in protecting children as a basis for reg- ulating broadcast indecency, preserving the privacy of the home provides an alternative basis for upholding the constitutionality of the 24-hour prohibition. In Pacifica, the Supreme Court's first stated rationale for sustaining the Commission's decision was the right of all members of the public to be free of indecent material in the pri- vacy of their homes. The Court found that "the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder." 438 US 726, 748, citing Rowan v. Post Office Dep't, 397 US 728 (1970); Id. at 759-60 (Powell, J., concurring in part).29 In Sable, the Supreme Court again referred to this residential privacy interest, noting the "unique" attributes of broadcasting, i.e., that it "can in- trude on the privacy of the home without prior warning as to program content." 109 S Ct at 2837.3° 26. See P.L. 98-214, 97 Stat 1469 (1983); amended by P.L. 100-297,102 Stat 424 (1988); further amended by P.L. 101-166, 103 Stat 1159, 1192-1194 (1989). 27. See United States v. Various Articles of Obscene Merchandise, Schedule No. 2102, 709 F2d 132 (2d Cir 1983). Other movies found not to be obscene included "Insatiable," "Star Virgin," 'The Opening of Misty Beethoven," and "Inside Desiree Cousteau." The Court described these movies as "examples of hard-core pornography, describing and depicting a wide range of scenes of explicit sex on the part of adults, singly and in groups, including detailed portrayals of genitalia, sexual intercourse, fellatio, and masturbation." 709 F2d at 134. See also Hennann v. United States, 259 A2d 347 (DC 1969), holding the movie 'Threes, Manage a Trois" not to be obscene. The movie was described by the Court as depicting "a succession of more or less disconnected scenes portraying or suggesting sexual activities including repetitive self -fondling of female nipples, lesbian -like stroking, some display of female genital areas and pubic hair, and poses suggestive of cunnilingus between a fully dressed man and a partly dressed woman." 259 A2d at 348. 28. Examples of the patently offensive indecent material broadcast by some stations are included in Appendix B. [Appendix B omitted. Cases cited may be located at: 66 RR 2d 1560, 62 RR 2d 1199, and 62 RR 2d 1191— Ed.]. 29. In his concurrence, Justice Powell noted that "broadcasting — unlike most other forms of communication — comes directly into the home, the one place where people ordinarily have the right not to be assaulted by uninvited and offensive sights and sounds.... Although the First Amendment may require unwilling adults to absorb the first blow of offensive but protected speech when they are in public before they tum away, ... a different order of values obtains in the home.' 438 US at 759 (Powell, J., concurring in part) (citation omitted). 30. The Court has recognized the government's substantial interest in protecting the privacy of the home in non -broadcast contexts as well. See, e.g., Frisby v. Schultz, 487 US 474, 484 (1988) (upholding a narrowly -tailored ban on picketing a specific residence and stating that "we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom"); Carey v. Brown, 447 US 455, 471 (1980) ('The State's interest in protecting the well-being, tranquility and privacy of the home is certainly of the highest order in a free and civilized society"); Bolger v. Young Drug Products Corp., 463 US 60, 77-78 (1983) (Rehnquist, J., concurring) ("We have often recotized that individuals have a legitimate 'right to be left alone' in the privacy of the home ... the one place where people ordinarily have the nght not to be assaulted by uninvited and offensive sights and sounds"). Copyright 1990, Pike & 'Fischer, Inc. 67 RR 2d Page 1719 r 67 RR 2d CASES 23. The government's interest in preserving the privacy of the home reinforces its interest in protecting chil- dren. As D.C. Circuit Judge Leventhal noted in his dissenting opinion in Pacifica, "[wjith the pervasiveness of TV -radio and its reach into the home the choice made by broadcasters precludes an effective choice by the family. Because of the unique interest in home life, especially strong in homes where children are being raised, it is bootless to quote from cases that reflect a more permissive attitude to speech in public streets and places, without attention to the difference.... The reality of broadcasting's special access to the home conjoins with the passivity of TV -radio reception -- a mere click, without current purchase." 556 F2d at 33 (Leventhal, J., dissenting). While the record demonstrates that a 24-hour prohibition on broadcast indecency is needed to ad- vance our primary interest in controlling children's access to indecent materials, it also supports this alternative residential privacy interest, particularly the evidence concerning the pervasiveness of the broadcast media, the prevalence of random tuning and remote control devices, and the ineffectiveness of prior warnings. See infra at pp. 1722 and 1729-1730. C. Operative Definitions I. Definition of Indecency 24. In carrying out its statutory responsibility to enforce Section 1464, the Commission consistently has defined indecency as "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." Pacifica Foundation, 56 FCC 2d at 98, 100 (1975), aff'd, FCC v. Pacifica Foundation, 438 US 726 (1978); .Reconsideration Order, 3 FCC Rcd at 930 ¶2 (1987), rev'd on other grounds, ACT I, 852 F2d at 1338-3931 We continue to believe that this definition is sufficiently narrow to continue to pass muster under the First Amendment. Indeed, we note that the U.S. Court of Appeals for the D.C. Circuit, relying upon the Supreme Court's opinion in Pacifica, explicitly affirmed this definition recently in ACT I, 852 F2d at 1340. 25. Many commenters agree that the Commission's generic definition of indecency retains its validity because it is sufficiently narrow and has survived Supreme Court scrutiny.32 Others, however, claim that the definition is unconstitutionally vague,33 and that vagueness could suppress broadcast material with serious literacy, artistic, social, and cultural value, as well as discussions on a range of subjects 34 Several parties arerue that the Com- mission should adopt a rule that defers to the reasonable, good faith judgments of licensees. Finally, Broad- casters argue that a licensee should have a right to a trial de novo whenever the Commission applies the defini- tion to specific circumstances.36 26. We do not believe that application of our definition of indecency will lead to unconstitutional censorship. We have emphasized that "subject matter alone does not render material indecent. Only when that matter is presented in a manner that is patently offensive will it be considered indecent." Reconsideration Order, 3 FCC Rcd at 932 (emphasis in original).37 27. Furthermore, we will continue to give weight to reasonable licensee judgments when deciding to impose sanctions in specific cases. We cannot, however, abrogate our statutory duty to enforce Section 1464 by defer- ring absolutely to broadcasters' judgments. See ACT I at 1340 n. 14. Finally, in response to the suggestion by Broadcasters that a trial de novo be available, we note that under the procedure we have utilized for indecency enforcement actions, issuance of notices of apparent liability, a trial de novo is in fact available to any station. that challenges the Commission's determination by not paying its forfeiture. See 47 USC §504. 2. Definition of Children 28. We find that for the purpose of enforcing Section 1464,38 children ages 17 and under constitute the category of persons that should be defined as "children." This conclusion is supported by the legislative history of the statutory 24-hour prohibition against indecent broadcasts, Supreme Court decisions addressing the regulation of 31. Our initial definition of indecency included the language 'when there is a reasonable risk that children may be in the audience." Pacifica, 56 FCC 2d at 98. Starting with our 1987 decisions, however, we have treated the nature of the material involved and the presence of children in the audience as separate issues because the question whether there is a reasonable risk of children in the audience is "more pertinent to ... whether a broadcast is 'actionable' under 18 USC §1464 than to whether it is indecent." Reconsideration Order, 3 FCC Rcd at 936 n. 6. See supra, n. 8. 32. See, e.g., MIM Reply Comments at 22-25; Salem Reply Comments at 10-21; and AFA Reply Comments at 3-7. 33. See, e.g., Broadcasters Comments at 35-40; PEN Comments at 11-16; Post -Newsweek Stations (Post) Comments at 1-2; ABC Comments at 19-21; C&M Comments at 7-16; and Cox Comments at 9-15. 34. PEN Comments at 16-20; Pacifica Comments at 13-20; Post Comments at 2-5; and KDVS Comments at 11-14. 35. Broadcasters Comments at 40; ABC Comments at 36-41; and Arizona Board of Regents et at. (Joint Parties) Comments at 22-23. 36. Broadcasters Comments at 44. 37. We also note that the courts already have determined that our definition of indecency is not unconstitutionally vague. See ACT I at 1338-1339. 38. Section 1464 states that "Whoever utters any obscene, indecent, or profane Language by means of radio communication shall be fined not more than S10,000 or imprisoned not more than two years, or both." 18 USC §1464. Page 1720 Report No. 43-37 (9/10/90) BROADCAST INDECENCY other sexually explicit indecent materials, and other statutes governing the availability of indecent materials to children. 29. In the NOI, we noted that our 1987 enforcement rulings indicated that children 17 and under should be protected from indecent broadcasts, and sought comment on whether we should continue to so define children. Arguing generally that including all minors would be consistent with state laws protecting minors from other sexually explicit speech, some parties agree that "children" should include persons 17 years old and under.39 However, opposing parties argue that even though states may protect children from obscenity, they do not pro- tect children from indecency,40 and that in any event there is no evidence that exposure to indecent speech harms children.41 30. Defining children to be protected from indecent broadcasts as those 17 years old and under is consistent with the legislative history of the statutory provision requiring the Commission to enforce Section 1464 twenty four hours a day. That history reveals that the statute's author intended to encompass children 12 to 17, as well as those under 12, within the class of persons to be protected by the 24-hour prohibition.42 Since the statutory provision originated as an amendment introduced on the Senate floor, no committee reports exist for reference. The author's explanation, delivered immediately before the measure was adopted, therefore must be accorded substantial weight in interpreting the provision. 3 31. In addition, defining children as those 17 and under is consistent with other laws regulating the availability of sexually explicit indecent materials to children. One such statute is the "dial -a -porn" prohibition, 47 USCA §223(b)(3) (Supp. 1990), enacted in 1989, which prohibits indecent telephone communications to persons under the age of 18. This provision is strong evidence that Congress has found that persons 17 and under should be protected from indecent materials. In addition, contrary to the comments cited above, the NOI at Appendix A lists statutes from 48 states that penalize persons for disseminating to minors materials that are sexually explicit, and not necessarily obscene by adult standards. Most of these state laws protect children ages 17 and under. 32. The government's interest in protecting children 17 and under from exposure to indecent materials also has been recognized by the courts. For example, when discussing an earlier version of the "dial -a -porn" statute, the Supreme Court in Sable explicitly recognized the government's "compelling interest in preventing minors from being exposed to indecent telephone messages," and tacitly approved Congress's decision to apply the statute to children ages 17 and under. 109 S Ct at 2839. Similarly, in Ginsberg, 390 US at 631, and Bethel School District No. 403 v. Fraser, 478 US 675, the Supreme Court found a compelling governmental interest in controlling the availability of indecent matter to persons in the 12-17 age group. These precedents make clear that the govern- ment has a legitimate interest in protecting persons 17 and under from exposure to indecent broadcast materials. 33. We recognize that the Court in ACT I criticized the Commission for not clearly defining "children" for pur- poses of applying Section 1464 and for failing to justify its application to the 12-17 age group.44 In this report we clarify that all children 17 and under will be included in the protected age group. We find sufficient justi- fication for adopting this definition in analogous federal and state statutes, Supreme Court precedent, and in the legislative history of the 24-hour statutory prohibition against indecent broadcasts. Accordingly, for purposes of protecting children from exposure to indecent broadcast materials, we will consider "children" to be persons age 17 and under. 39. See, e.g., AFA Comments at 13; Bonneville Int'l Corp. (Bonneville) Comments at 5; and Salem Reply Comments at 21-24. 40. See Broadcasters Comments at 26-29_ See also Cox Enterprises (Cox) Comments at 26-28 and PEN Comments at 20-23. 41. Broadcasters Comments at 13-17 and Appendix A; Broadcasters Reply Comments at 10-12; Pacifica Comments at 30-31; and ABC Comments at 23-28. 42. In enacting the 24-hour prohibition, Senator Helms, the author of the legislation, relied upon data regarding children 12 to 17 in arguing for enactment of the prohibition and, therefore, intended for it to apply to this age category. 134 Cong. Rec. S9912 (daily ed. July 26, 1988) (statement of Sen. Helms). 43. See North Haven Board of Education v. Bell, 456 US 512, 526-527 (1982); Steiner v. Mitchell, 350 US 247, 254 (1956) (remarks of legislation's sponsor is an authoritative guide to statute's construction and deserves to be accorded substantial weight). See also National Woodwork Manufacturers Ass'n v. NLRB, 386 US 612, 640 (1967) ("It is the sponsors that we look to when the meaning of the statutory words is in doubt."). 44. The Court inACT I noted that the Commission in a 1976 legislative proposal had recommended that the regulation of broadcast indecency be directed to protecting children under 12. See 852 F2d at 1342, citing 122 Cong. Rec. at 33,367 n. 119. At the time, we made this recommendation for two reasons. First, we proposed that broadcasters could defend against an indecency complaint by showing that they had made efforts to minimize the risk of exposure to children. Including 18 -year olds in the definition of children, we feared, would deprive broadcasters of this defense because of the difficulties inherent in effectively shielding 18 -year olds from indecent programming. Second, we observed that age 12 "is the accepted upper limit for children's programming in the industry and at the Commission' 122 Cong. Rec. at 33,367 n. 119; see 122 Cong. Rec. at 33,364 (Sept. 29, 1976). However, now outside the confines of that debate and on further examination, we conclude that the appropriate 'upper limit for children's programming" differs from the appropriate upper limit for protecting children from exposure to indecent material. To the extent the public interest requires broadcasters to offer age-specific or other special programming for children, that interest subsides when the child reaches an age, such as 12 years old, when general interest programming serves his or her needs. In contrast, the wide usage of the age of 17 and under in other federal and state laws intended to protect children from access to sexually explicit material demonstrates the general acceptance of the need to protect children older than 12 from exposure to such material. Moreover, our recommendation to Congess in 1976 simply struck a different balance between the need to protect children and the rights of adults to see or hear indecent matter from that struck by Congress in 1988 when it directed the Commission to enforce the prohibition on indecent broadcasting 24 hours a day. Copyright 1990, Pike & Fischer, Inc. 67 RR 2d Page 1721 67 RR 2d CASES D. Narrowly Tailored Means 1. Accessibility 10 Children 34. As did the Supreme Court in Pacifica, we find that the broadcast medium is uniquely pervasive and acces- sible to minors, and that these characteristics further justify prudent regulation of indecent broadcast programs. The Supreme Court has recognized that "each medium of expression presents special First Amendment prob- lems." Pacifica, 438 US at 748. Broadcasting has specific characteristics that support regulation of indecency that would not necessarily be permissible if applied to other media. In particular, for purposes of regulating in- decent broadcasting. the Court has noted "that broadcasting is 'uniquely pervasive,' can intrude on the privacy of the home without prior warning as to program content, and, is 'uniquely accessible to children, even those too young to read.' " Sable, 109 S Ct at 2837, quoting Pacifica. 438 US at 748-4945 35. Notably, the Supreme Court in Sable distinguished indecent telephone services from broadcasting, observing that the caller to a "dial -a -porn" service must "take affirmative steps to receive the communication," 109 S Ct at 2837. In contrast, "[blecause the broadcast audience is constantly tuning in and out, prior warnings cannot com- pletely protect the listener or viewer from unexpected program content." Pacifica, 438 US at 748. Thus, "[p]lacing a telephone call is not the same as turning on a radio and being taken by surprise by an indecent message." 109 S Ct at 2837. 36. The Sable decision strongly suggests that a 24-hour broadcast indecency prohibition is constitutional if it is the most narrowly tailored means of protecting children from exposure to indecent materials. The reversal of the "dial -a -porn" prohibition in Sable rested not on the failure to channel such communication, but on the gov- ernment's failure to show that a complete prohibition on indecent "dial -a -porn" was necessary to meet the gov- ernment's interest in protecting children from the indecent material. The emphasis the Court placed on the inadequacy of the record in Sable thus supports a conclusion that a total prohibition on indecency would be up- held if the record demonstrates that no alternative would effectively serve the compelling interest at stake. 37. The record in this proceeding confirms the general pervasiveness and accessibility of broadcasts to children. TV, available in virtually every household, is viewed an average of 26 hours per week by children ages 2 to 17 years old.46 Between 25% and almost 50% of children have a TV set for their personal use 47 Radio is even more pervasive. with each household having an average of over five radios. Over 99% of children age 12 to 17 listen to radio at least once a week.48 Moreover, as described in detail infra, children do not just have general access to the broadcast media, but they in fact tune in to their radio and television sets without meaningful su- pervision at all times of the day and night. 2. Children's Listening and Viewing Habits 38. The record indicates that there are children in the radio and television audience at all hours of the day and night. The data further shows that a significant number of these children are not subject to active parental su- pervision, even during the late evening and early morning hours. a. Radio 39. The data s:ibrnit;3d in response to the NOI indicate that there are children in the radio listening audience at all times of day, with an average of nearly three-quarters of a million children listening to radio between mid- night and 6 a.m. From this data we conclude that there is no time during which indecent material could be broadcast on radio without a reasonable risk that significant numbers of children will be listening to it. 40. The Commission's initial review of radio ratings and surveys revealed little quantitative information about the radio listening habits of children under 12 years of age, although listening data for children ages 12-17 were available. These data indicated that, in all time frames measured, including midnight to 6 a.m., a higher per- centage of all children ages 12-17 listened to radio than the percentage of all adults 18 and over listening to ra- dio. Furthermore, post -midnight listening for children ages 12-17 averaged 2-3/4 hours per week.49 41. The NOI indicated that the national listening audience for children ages 12-17 between midnight and 6 a.m. peaked at 1.471.000 between 12:00 and 12:15 a.m., decreased gradually to a low of 309,000 between 3:45 and 4:00 a.m., and then increased to 1,429,000 between 5:45 and 6:00 a.m. The average quarter-hour audience for the entire six hour block of midnight to 6 a.m. was 716,000 children ages 12-17. The average one day cume 45. Similarly, in enacting the 24-hour prohibition on broadcast indecency, the statute's author expressed concern regarding the pervasiveness and accessibility of the broadcast medium. 134 Cong. Rec. S9912 (daily ed. July 26, 1988) (statement of Sen. Helms). 46. NOI at 8361. 47. Id. Additional data submitted by AFA illustrates the pervasive nature of television, using the Chicago television market as an example. Chicago has 5 VHF and 3 UHF TV stations, of which most broadcast at least 20 hours a day, 7 days a week. As a result, for over 80% of all hours in a week, day or night, there are at least 8 different programs being broadcast simultaneously. In a typical 168 hour broadcast week, there are over 1,120 hours of programs broadcast. AFA Comments at 41-42. 48. Id. 49. Id. at 8361. Page 1722 Report No. 43-37 (9/10/90) C BROADCAST INDECENCY (the estimated number of different persons who listen to radio for a minimum of five minutes within a specified time frame) for between midnight and 6 a.m. was 3,533,000 children ages 12-17. That is, during any given midnight to 6:00 a.m. time frame on any given day, 3,533,000 different children ages 12-17 in the United States listened to the radio for at Least five minutes. The weekly cume for listening between midnight and 6 a.m. was 10,896,000 children ages 12-17. These listeners constituted 10 to 12 percent of the post -midnight total listening audience and this proportion was generally consistent for daytime listening as wel1.5u We requested comment on these data and asked commenters to submit any other data or studies regarding listening habits of children and adults. 42. Commenters supporting the 24-hour prohibition submit that children ages 12-17 make up a substantial por- tion of the radio audience. MIM submits radio listening data for children ages 12-17 for New York, Chicago and Los Angeles collected by Arbitron for the summer of 1989.b1 MIM combines the data for the three markets and makes a national projection of post -midnight listening by children ages 12-17 that is remarkably close to the national data presented in the NOI.52 MIM estimates that from 12 to 1:00 a.m. the average quarter hour au- dience for this age group nationally is 1,334,557, which is very close to the Commission's estimate of 1,429,000 for 12 to 12:15 a.m. MIM's estimated low in listening among children ages 12-17 occurs at 4-5 a.m. with 220,067 in the audience, whereas the Commission estimated 309,000 in the audience from 3:45 to 4:00 a.m. 43. Bonneville Int'l Corp. (Bonneville) reviewed data on audiences for several of its radio stations that it classi- fies as having "some teen appeal," and found that children ages 12-17 are in the audience post -midnight. Bon- neville also reviewed data for non -Bonneville stations in markets in which Bonneville has stations and, similarly, found stations with greater post -midnight listening by children ages 12-17 than any other demographic group. Salem submits a Bakersfield, CA, radio study showing that 28% of children ages 12-17 in that market listen to radio between midnight and 6 a.m.54 National Religious B/casters (NRB) also submits radio data for Detroit and Tampa showing large numbers of 12 to 17 years old listening to radio at all times of the day and night.55 44. Broadcasters claim that the audience for certain programming that the Commission is reviewing as (or has deemed to be) indecent contains few children, referring to a Gallup survey of New York area households with children ages 6-11 commissioned by Infinity B/casting indicating that in 99.6% of households surveyed, no chil- dren in that age group listen to the Howard Stern morning radio show.56 In the sole household that reported a child listening to that show, it was reported that the child was supervised by an adult.57 MIM responds that al- though Broadcasters assert that few children ages 6 to 11 listen to the Howard Stern show, there are older chil- dren in the audience. As reported in Arbitron's Summer 1989 "Radio Market Report" for New York, only 5 of the 48 stations listed for the New York market have a greater audience of children ages 12-17 than WXRK-FM Monday through Friday, 7-8 a.m., when a portion of the Howard Stern show is broadcast. MIM further states that Arbitron reports an estimated 10,600 children ages 12-17 listened to the Stern show for at least 5 minutes. during any quarter hour from 7-8 a.m. Monday through Friday in the summer of 1989.58 45. Other .commenters opposing the 24-hour prohibition dispute the Commission's initial findings and submit radio listening data in support of their position. KDVS-FM (KDVS) urges that channeling be used to 'enhance parental responsibility, and states that Arbitron and other radio surveys suggest that the number of young chil- dren in the audience during school hours is only between 3 and 5% of the potential audience of children ages 12-17. This group comprises only 1-4% of the total audience during these broadcast hours. Both of these fig- ures are far lower then even those seen in the 11 p.m. -midnight sampling, and approximate the post -midnight sampling. KDVS claims that these statistics suggest two appropriate times for channeling -- during the school day and the late evening hours. KDVS also states that the same survey (Arbitron Fall 1983) reported that, dur- ing Monday through Friday, 7 p.m. to midnight, only 10% of the total audience of children ages 12-17 listened to radio outside the home at those hours. Therefore, argues KDVS, most of the children in the radio audience would be subject to adult supervision.59 46. KDVS also states that children ages 12-17 make up only 10% of a very small midnight to 6 a.m. listening audience. KDVS maintains that nationally, only about 3.5% of children ages 12-17 are present in any quarter 50. Id. 51. MIM Comments at 42-62. 52. NOIat8361. 53. Bonneville Comments at 6-7. Bonneville's statistics are from Spring 1989 Arbitron Radio Ratings (Metro AQH M -F midnight -1:00 a.m.). 54. Salem Reply Comments at Exhibit 1. 55. NRB Reply Comments at Exhibit 2. 56. Mr. Stern's morning radio show was the subject of one of the Commission's 1987 indecency decisions. See Infinity B/costing Corp. of PA, 2 FCC Rcd 2705 [62 RR 2d 12021 (1987). 57. Broadcasters Comments at 26 n. 65, citing a poll up by Gallup Organization, WXRK Radio, Special Listenership Study (December 1989). 58. MIM Reply Comments at 20. 59. KDVS Comments at 7-9. Copyright 1990, Pike & Fischer. Inc. 67 RR 2d Page 1723 67 RR 2d CASES hour post -midnight time frame for all stations. KDVS estimates that if this age group comprises 10% of the population, then the 3.5% of all children ages 12-17 listening to radio post -midnight represents only 0.35% of the entire population.60 Finally, KDVS states that the Commission, in the NOI, did not identify estimates of the sampling error or relative standard error involved in the ratings.61 47. Pacifica Foundation ei al. (Pacifica) also claims that listening statistics regarding children ages 12-17 are flawed in their application. Pacifica states that the Commission gives the impression that a significant number of children in this age group listen to radio generally. Pacifica, like KDVS, claims that the percentage of chil- dren ages 12-17 of the total listening population (the largest possible representation of these data) does not re- flect the percentage of these children in the actual total population. Pacifica states that the 12-17 year old lis- tening population should be divided by the total population to obtain a more realistic representation of this group's listening. 48. Pacifica further observes that such data do not reflect children's listening to public radio stations. Pacifica relies on data from Arbitron, Spring 1989, to conclude that children ages 12-17 listening to public radio stations account for a mere 0.2% share of this group's listening to radio and no [0] share of total radio listening. Only 1.5% of the population of children ages 12-17 tuned into public radio for 5 minutes during an average week from this survey.62 Broadcasters also refer to the minimal audience of children ages 12-17 that National Public Radio (NPR) attracts. Broadcasters submit that, according to the Arbitron National Report (Spring 1989), mem- ber stations carrying NPR programming have no measurable audience in this age group from 6 to 10 a.m. and 6 p.m. to 6 a.m.63 49. The submitted data confirm our initial determination that there are a significant number of children in the listening audience at all times of day and night. MIM, Salem and NRB have submitted data illustrating that the listening patterns of children ages 12-17 are similar to those described in the NOI,fi4 which indicated that the percentage of children in this age group listening to radio during all time frames was higher than the percentage of adults age 18 and over listening to radio.65 These 12 to 17 year olds represent over 10% of the 6.9 million total average quarter-hour listening audience from midnight to 6 a.m.66 Although KDVS maintains that there are few children ages 12-17 in the listening audience during the day, even low numbers of children (KDVS' submission indicates that 1-4% of the total audience is children ages 12-17) confirm that there are significant numbers of children listening to radio during school hours. Similarly, although KDVS maintains that 12 to 17 year olds listening between midnight and 6 a.m. during any quarter hour make up only 0.35% of the total popu- lation, this figure represents 3.5% of all children in this age group in the U.S., or 716,000 children ages 12-17.67 b. Television 50. Our initial data, and data supplied by several commenters, validate the Commission's concerns regarding children's viewing, especially late night viewing, of television. These data demonstrate that there is a reasonable risk that a significant number of children are present in the nationwide television viewing audience at all times. 51. The NOI stated that, based on ratings data, children are in the television audience throughout the day. Un- like radio, there are no reported data reflecting television viewing by age between 2:00 and 6:00 a.m. That which is available, however, demonstrates that children, particularly those ages 12-17, remain in the viewing audience throughout the last reported time period ending at 2:00 a.m. The data also indicate that between 3% (for ages 2 to 5) and 8% (for ages 12-17) of children's weekly viewing occurs between 11:00 p.m. and 1:00 a.m. The NOI also analyzed Arbitron data depicting the percentage of persons by age group that watch TV from 6:00 p.m. to 1:45 a.m. in four selected markets. These data show that percentage -wise, as many children ages 12-17 as adults watch television during the late evening hours, and that a higher percentage of 12 to 17 year olds than adults may watch television during these hours in some markets during the summer months ss We requested comment on these data and solicited additional studies or data regarding children's viewing. 52. The United States Catholic Conference (USCC) submits results of a radio listening and television viewing survey of almost 8100 children attending Catholic diocesan schools (5,726 age 12 and under and 2,346 age 13- 18). The USCC survey indicated that children 12 and under watch an average of 3.5 hours of television per 60. KDVS Reply Comments at 3-4. 61. Id. at 5-6. 62. Pacifica Comments at 23-2.5 and Attachment 4. 63. Broadcasters Comments at 26. 64. NO/ at 8361 and Appendix B, Tables 3 and 4. 65. NOI Appendix B, Table 3. 66. With regard to KDVS' concern that the Commission omitted estimates of the sampling error or relative standard error in the data presented in the NOI, the Commission does not attach the rating companies' descriptions of methodology with error and reliability estimates for their data. However, these descriptions are readily available in ratings reports, and do not suggest that this information is systematically skewed. 67. NOI at Appendix B, Table 4. 68. NOI at 8362 and Appendix C. Page 1724 Report No. 43-37 (9/10/90) BROADCAST INDECENCY day, mostly from 3-9 p.m. Monday through Friday, and an average of 6 hours per day on the weekend, mostly from 8-11 a.m. and 7-11 p.m. USCC also reported that children age 13-18 watch an average of 3.5 hours per day, mostly from 4-11 p.m. Monday through Friday, and an average of 6 hours per day on the weekend, mostly from 7-9 a.m. and 2-11 p.m.69 USCC concludes that if a reasonably clear distinction between times when chil- dren are and are not in the audience can be discerned, then time of day restrictions for the broadcast of inde- cent material could be established. 53. KDVS takes issue with the Commission's graphic representation of Arbitron television viewing data for the four markets that appear in Appendix C of the NO!. It asserts that the post -10:30 p.m. periods are measured in fifteen -minute intervals, whereas pre -10:30 p.m. time periods are measured in thirty -minute intervals, thus de- picting the rate •of audience decline after 10:30 p.m. as slower than it is in reality. KDVS. further states that the Commission has implied incorrectly that the proportion of age groups represented on the charts is indicative that each group is similar in size.70 54. Several commenters have filed evidence indicating that children comprise a significant portion of the late night audience. Salem and NRB submit data showing that, in five metropolitan areas, the number of children in the viewing audience late at, night is substantial.71 For example, in the Washington, DC market, for July 1989, seven percent of children ages 12-17 and four percent of children ages 2-11 are in the viewing audience from 1:45 to 2:00 a.m., Monday through Friday. Salem averages the data for the five markets and projects the na- tional television audience for various post -11:00 p.m. time frames. For the 1:45-2:00 a.m. period, Salem projects that, nationally, 4.8% of children ages 12-17 watch television. This translates to over 970,000 12 to 17 year olds in the television audience at that hour." 55. These data and bur initial ,data confirm our belief that there is a reasonable risk that significant numbers of children are watching te16vision at all times, including late at night. USCC's suggestion that distinctions can be made as to when children are or are not in the viewing audience is unpersuasive. Its survey indicates only that children watch TV mostly in certain time frames, but these time frames are not all-inclusive of children's view- ing. In addition, we note that 66.9% of U.S. television households have videotape recorders (VCRs).73 Through VCRs, children can record late night programming for viewing during daytime, thus obtaining access to pro- grams even if they are not in the audience when the programs are initially aired. 56. KDVS' arguments regarding the 'data presented in the NOI also are unpersuasive. Depicting audience in 15 minute intervals as opposed to 30 minute intervals 'from 10:30 p.m. to 1:45 a.m. achieves a greater level of ac- curacy in the measurement of late night TV audiences. Using 30 minute increments does not alter the percent- age of each age group that is watching TV at those times. We agree with KDVS that the rate of decline for all audience segments is relatively steep late at night. This does not change the evidence indicating that children remain in the viewing audience late at night. With regard to KDVS' contention that the Commission implied that each age group in the four markets charted in Appendix C of the NOI is similar in size, such an implica- tion was not made. The NOI states that the percentage of each demographic group is represented on the chart. While the percentages of each group are, in some cases, equal, the actual numbers of each group are not. Nev- ertheless, there appears to be a reasonable risk that significant numbers of children are in the television viewing audience at all times. c. Supervision 57. As previously noted, the government has a clearly established compelling interest in protecting children from exposure to indecent broadcast materials, both to facilitate parental supervision of their children and to generally promote the well-being of youth. In, order to compile a record with respect to supporting parental su- pervision, the NCI requested comment on parents' ability to supervise children's listening and viewing, whether parents in fact supervise listening and viewing, and whether parents are concerned about their children's expo- sure to indecent broadcasts. Our preliminary finding was that there is significant unsupervised television view- ing by children on a daily basis. In addition, while there are fewer data available to measure unsupervised radio listening among children, we preliminarily concluded that, because of the number of radios per household, a significant number of children have the opportunity for, and actually engage in, unsupervised listening.74 Our review of the record in this proceeding confirms the validity of these preliminary findings, and demonstrates that unsupervised children are watching and listening to television and radio at all times of day and night. 69. USCC Comments at 5. We note that USCC admits that the results of its survey are not conclusive, and that it was unable to receive a full response to its survey. Id. at 5-6. 70. KDVS Reply Comments at 4. 71. Salem Reply Comments at Exhibit 2 and NRB Reply Comments at Exhibit 1, citing data from Arbitron Television Market Reports for the five markets for July 1989. 72. Salem multiplies the 20,254,000 total population of 12 to 17 year olds cited in the NOI by 4.8% to arrive at 972,192 children in this age range. Salem Reply Comments at 65. 73. 1990 Nielsen Report on Television at 1. 74. NOI at 8363. • Copyright 1990. Pike & Fischer, Inc. 67 RR 2d Page 1725 67 RR 2d CASES 58. Broadcasters dispute the NOf's assumption that in order to supervise their children, parents must co -view or co -listen with them or have specific knowledge of their viewing or listening. Broadcasters argue that as long as parents or other adults are present, they have the opportunity to supervise their children's viewing and listening. Broadcasters maintain that examining the presence of adults as the key to whether children are subject to adult supervision is analogous to the methods used by courts to examine the regulation of indecent material by cable and telephone. Rather than examining the actual use of technical devices to block reception of indecent mate- rial transmitted by cable or telephone, or examining parental supervision, Broadcasters state that courts instead analyze the opportunity to use these methods to block reception. 59. Broadcasters commissioned a survey of 1,000 homes with children 17 and under to determine opportunities for parental and adult supervision. According to the survey, over 88% of children were under parental supervi- sion and 98% were under adult supervision between the hours of 8:00 p.m. and 6:00 a.m. During the 10:00 p.m. to 6:00 a.m. period, over 93% of children were under parental supervision and 99% were under adult supervi- sion. Between midnight and 6:00 a.m., over 98% of children were under parental supervision and 99% were un- der adult supervision.`5 Broadcasters claim these data demonstrate that parents or other adults have the oppor- tunity to supervise their children's viewing and listening during these hours. 60. MIM disputes Broadcasters' study, arguing that under the "opportunity for supervision" theory advanced by Broadcasters, the study equates presence with supervision, assumes that a child will not watch television or listen to the radio after his or her bedtime, and assumes that supervision by anyone over the age of 18 is the equiva- lent of parental supervision.76 AFA argues that even if a child is in the presence of an adult, that adult may not supervise a child as a parent would.77 Even when parents are home, AFA argues, there is limited parent child co -viewing of television. AFA submits the results of a 1989 study of co -viewing habits of parents and children that concludes that parents generally do not view family series with their children. The study found that, on average, parents and second graders co -viewed 5.6 prime time and 1.96 syndicated series in the last year. Parents and sixth graders co -viewed 7.21 prime time and 2.05 syndicated series, while parents and tenth graders co -viewed 7.63 prime time and 2.8 syndicated series. The study determined that for all series and for prime time series only, the mean co -viewing frequency was between something less than "just a few times this year" and "have watched [together], but not in the last year.n78 The authors of this study claim that "parents co - view with children, particularly when their viewing preferences coincide, and that co -viewing is associated with generally positive parental attitudes toward television and specific beliefs in encouragement for children learning from television. [The data] do not, however, suggest that co -viewing is very much motivated by an active de- termination to mediate children's television experiences.n79 On the other hand, USCC submits a survey of over 8,000 parochial school students showing that 81% of the respondents ages 12 and under, and 70% between the ages of 13 and 18, watch television with an adult at night. The study also shows that 72% of the respondents ages 12 and under, and 90% between the ages of 13 and 18, sometimes or almost never listen to radio with an adult.8o 61. The record before us demonstrates that the pervasiveness and accessability of television and radio, coupled with the lack of effective parental control mechanisms, discussed infra, make effective parental supervision ex- ceedingly difficult if not impossible for the average parent. We noted in the NOl that 63% of television house- holds have more than one television set, and of the ninety-nine percent of households with radios, each house- holds has, on average, over five.81 The number of televisions and radios in households can easily prevent a parent from actively supervising a child's viewing and listening habits. In a household with more than one tele- vision, a child may watch a program without parental knowledge. VCRs permit a child to tape a television pro- gram for later viewing without parental knowledge. The ability to listen to radio without parental knowledge is even greater, given the number of radios in the average household, their portability, and the widespread use of headphones. 62. We note, moreover, that parents' control of children's television viewing and radio listening differs from parental control of cable viewing and telephone calls. Technical means are readily available to block children's access to indecent cable programs and indecent telephone calls. Upon request, cable operators must provide a device such as a "lock -box" or "parental key" that permits a subscriber to restrict access to selected program- ming,82 and access codes and scrambling are among the methods which can restrict children's access to "dial -a - porn" services.83 In both instances, these methods can restrict access by children whether or not parents are 75. Id. at 32-34, Appendix C. 76. MIM Reply Comments at 18-19. 77. AFA Reply Comments at 8. 78. AFA Comments at 38-39. 79. Id. at n. 55. 80. USCC Comments at 5-6. 81. NO1 at 8361. 82. Cable Communications Policy Act of 1984 Section 624(d)(2), 47 USC §544(d)(2). 83. See 47 USCA §223 as amended by P.L. 101-66, 103 Stat. 1159, 1192-1194 (1989); Regulations Concerning Indecent Communications by Telephone (Report and Order), FCC No. 90-230, adopted June 14, 1990. Page 1726 Report No. 43-37 (9/10/90) • er BROADCAST INDECENCY physically present and actively supervise. In the case of television and radio, however, there is no comparable means that is readily available upon which parents may rely to prevent children from watching indecent off - the -air broadcast television programs or listening to indecent radio programs. Most television receivers do not permit blocking of specific channels,84 and channel blocking devices are not available for radios. There is no evidence in the record that a lock -box type of device is available for attachment to televisions and radios to prevent access to specific channels. Therefore, because parents cannot rely on technical devices to prevent chil- dren from viewing indecent programs, parents can effectively supervise their children only by co -viewing or co -listening, or, at a minimum, by remaining actively aware of what their children are watching at all times. As many concerned parents filing comments in this proceeding emphasized, however, it is not practical for par- ents to exercise this type of control. The letter of Elizabeth Urquhart of Houston, Tx, addressed to Commis- sioner Duggan, succinctly sums up the point made in a large number of other letters submitted in this proceed- ing in stating that "[I]t is not a matter of my responsibility to monitor. A person (parent would have to be super human to monitor every program a child might watch -- in and out of our home [sic]."56 63. We do not believe that Broadcasters' study demonstrates that parental presence alone can adequately protect children from indecent broadcast programming. Broadcasters' data show that at no time during the day are all children under parental supervision. Even during the period of time from 1:00 a.m. to 6:00 a.m., the survey found that 1.2% of the children were neither with a parent nor asleep.86 Since children are in the broadcast au- dience during this period, it is not unlikely that some of these children could watch indecent programming broadcast late at night. In addition, although the survey asked parents if the child in question was "in the presence of at least one parent, stepparent, or legal guardian," the term "presence" was apparently undefined. A respondent may have answered that the child was in the "presence" of a parent even if the child was awake in another part of the home and the parent asleep. Nor did the survey ask what parents were doing during the hours that they were in the presence of children. Because there is no technical means to prevent children from viewing or listening to particular programs, supervision requires parents either to co -view or co -listen, or to re- main actively aware of a child's viewing or listening at all times. As a practical matter, mere "presence" in the same house as a child does not necessarily translate into supervision. 64. Commenters have not disputed our estimates of the amount of unsupervised television viewing by children. Our analysis, based on a 1980 study of 817 American households with children between the ages of 6 and 17, estimated that the maximum amount of unsupervised children's daily viewing ranges from 212 to 222 minutes and the minimum ranges from 40 to 54 minutes.87 We also estimated that among children in certain age groups the maximum amount of unsupervised children's daily viewing could range from 357 to 375 minutes, if we as- sume that all of a child's viewing in two -television households occurs on a separate set from the parents'.88 The NOI also suggested that the number of radios in households made a substantial amount of unsupervised radio listening by children likely. The data submitted by the parties to this proceeding do not refute these estimates. In any event, the record demonstrates that parents cannot always provide meaningful supervision, even when they are present at home. Accordingly, we conclude that there is a substantial amount of unsupervised viewing and listening by children, and that as a practical matter, the pervasiveness and technology of broadcasting serve to deny parents the means necessary to exercise effective control over these activities. d. Conclusions 65. The above evidence indicates that there is a reasonable risk that significant numbers of children are in the audience for radio and television broadcasts at all times of the day and night. The number of children present, moreover, clearly is more than "a few of the most enterprising and disobedient young people." Sable, 109 S Ct at 2838. For example, evidence submitted by the commenters indicates that, in all time frames measured, a 84. In reply comments, Broadcasters submit a list compiled by the Consumers Union of selected television models currently sold in the United States. Broadcasters claim that over 120 models are equipped with a channel blocking feature that prevents unauthorized access to channels. Broadcasters Reply Comments at p. 14, Appendix 5. Virtually all of the televisions on this list have at least a twenty -inch screen and, judging by the list price, appear to be color televisions. Broadcasters provide no data showing the market share held by these models. No commenters submitted evidence as to whether channel blocking devices for attachment to existing television sets are available. Furthermore, Broadcasters offer no information as to how channel blocking works, particularly whether a channel blocking feature completely prevents access to a particular channel or whether it may easily be circumvented. Moreover, most television sets used in homes today do not have any blocking mechanism. Finally, no party has submitted evidence regarding the feasibility of using televisions with channel blocking in this context, or of the market penetration of these televisions. 85. Many letters submitted in this proceeding emphasized the impossibility of close supervision. Representative of these are the following five. Mrs. Barbara Gigous of Warsaw, IN, wrote: "I have two teenage boys who have their own wa]kmans and tape recorders. There is no way that I can know what they are listening to all the time." Donald and Sandra Lee of Irving, TX stated: "As working parents, our children have access to television at times when neither my husband nor myself are available to screen their viewing. The radio is available everywhere they go and it is equally offensive...." Yvonne Thomas of Boonsboro, MD. a public school teacher, wrote "Many children live alone with a television as both parents are working." Another teacher, Ann Davis of Shrewury, PA, wrote: "I tuned in the radio about 6 a.m. to see if any of the schools had been delayed [due to inclement weather]. This was the station suggested at school to listen to. I heard the most foul language and sexual innuendos I'd ever heard in public.... I had to ask [my son] to leave the room saying that I would let him know when the announcement was made." Cheryl Mayer of Bronson, M1, reported: "As I was driving my four children to school one morning, around 7:30, I was appalled at what I heard on a radio station ... two DJ.'s were being very crude." 86. Broadcasters Comments, Appendix C, Table 2. 87. NOI at 8363 and Appendix B, Table 5 at 8376. 88. Id. Copyright 1990, Pike & Fischer, Inc. 67 RR 2d Page 1727 67 RR 2d CASES higher percentage of all children between the ages of 12 and 17 listen to radio than the percentage of all adults age 18 and over, even between midnight and 6 a.m.89 Although some commenters claim that 12 to 17 year olds listening between midnight and 6 a.m. during any quarter hour make up only 0.35% of the total population,90 this figure represents a full 716,000 children between the ages of 12 and 17.91 66. Similarly, the record demonstrates that there is a reasonable risk that a significant number of children are in the television audience throughout the broadcast day and night. As previously noted, available data show that children, particularly those between the ages of 12 and 17, are in the viewing audience until the last time period reported for television ratings. The data furthershowthat as high a percentage of children ages 12 to 17 as adults watch television during the late evening hours. Indeed, for the 1:45 to 2:00 a.m. time period, one com- menter has estimated that there are over 970,000 12 to 17 year olds in the television audience. 2 These figures, of course, do not take into consideration the number of children who may be using VCRs between midnight to 6 a.m. to record television programs for viewing at a later time. 67. The data further show that a significant number of children in the broadcast audience are not subject to active parental supervision, even during the late evening and early morning hours. Although Broadcasters have submitted a study alleging that many children are under "parental supervision" at all times of the broadcast day, the study does not establish that parents in fact actively supervise their children's viewing and listening of radio and television; rather, it shows only that most children are usually in the "presence" of an adult, an undefined term that leaves open the possibility that children may be watching or listening to a television or radio while their parents (or other adults) are in other parts of the house or are asleep. The record, moreover, indicates that children engage in unsupervised viewing and listening throughout the day and night not because of a lack of concern by parents, but because of the impracticality of total supervision that derives from a combination of the technology involved and the lack of available and effective parental control devices. 68. In sum, the evidence establishes that, given the pervasiveness and accessibility of radio and television, un- supervised children in pursuit of entertainment need be neither "enterprising" nor "disobedient" to turn on a television or radio, or to record a program on a VCR, at any time of day or night. Accordingly, we conclude that there exists a reasonable risk that a sufficient number of children are in the broadcast audience at all times to warrant narrowly -tailored government regulation of indecent broadcasting aimed both at facilitating parental supervision and promoting the well-being of youth. Such regulation is particularly necessary since, as previously discussed, a wide range of sexually explicit and patently offensive material may be encompassed within the definition of "indecency."93 E. Alternatives to 24 -Hour Prohibition 69. The NOI solicited comment on alternatives to a 24-hour prohibition, including (1) channeling indecent broadcasts to a time of day when children most likely will not be exposed to them; (2) using program rating codes or pre -broadcast warnings to protect children; and (3) relying upon broadcast technologies to limit chil- dren's access. After careful consideration of the record, we conclude that none of these options can effectively advance our interest in protecting children from indecency and, accordingly, that a 24-hour prohibition is the most narrowly tailored means of serving this compelling government interest. 1. Time Channeling 70. Time channeling would establish a specific time period during which non -obscene, but indecent adult- oriented programming could be aired. The feasibility of this alternative depends on whether indecent broadcasts could be channeled to hours when it is unlikely that children would be in the audience. We conclude that, based on the data indicating that there is a reasonable risk that children are present in the viewing and listening audience at all times, there is no time when the reasonable risk of children in the audience is sufficiently low to make their exposure to indecent programs unlikely. Accordingly,we conclude that it would not be possible for broadcast stations, as a general matter, to channel indecent materials to certain times of the broadcast day with- out risk that a significant number of children will be watching or listening without meaningful parental super- vision. 71. Broadcasters argue that channeling broadcasts to times of day when parents have an opportunity to super- vise their children gives parents a meaningful opportunity to prevent children's access to indecent programs" A 24-hour prohibition, argue Broadcasters, places government in the position of deciding what children should 89. MIM Comments at 42-62; Salem Reply Comments at Exhibit 1; NRB Reply Comments at Exhibit 2; see also NOI at 8361 and Appendix B, Tables 3 and 4. 90. ICDVS Reply Comments at 3-4. 91. NOI at Appendix B, Table 4. 92. Salem Reply Comments at 65. 93. See paras. 19-21, supra. 94. Broadcasters Comments at 21. Page 1728 Report No. 43-37 (9/10/90) BROADCAST INDECENCY see and hear.95 KDVS suggests that the Commission implement time channeling during school days, when there is a reduced risk that children would be in the broadcast audience ss Other parties, however, note that a num- ber of children are alone during various times of the da 97 In this regard, we note that ACT I affirmed the Commission's regulation of a daytime indecent broadcast. 72. Finally, AFA argues that the effectiveness of a time channeling approach is diminished by the proliferation of VCRs, claiming that an estimated seventy-five to eighty percent of households with children have VCRs.99 KDVS counters AFA's claim, urging that most VCRs are purchased by parents, frequently for the personal use of their children, and that parents therefore must be aware of the possibility that their children may use VCRs o to tape broadcast programming. 73. After further consideration of time channeling, we conclude that we cannot identify a time when the rea- sonable risk of children in the audience is sufficiently low to make their unsupervised viewing of indecent pro- grams unlikely .tot We have determined that at all times there is a reasonable risk that significant numbers of children are in the broadcast audience for television and radio. The proliferation of VCRs further undermines a channeling approach for television, for, as AFA noted, a majority of households with children have VCRs that children may operate to tape a program. Clearly, many teens and even younger children know how to use the recording and playback functions of a VCR. As a result, delayed viewing on a VCR provides children with access to programs broadcast at a time when their live viewing is least likely. 74. Broadcasters' argument that stations should be permitted to channel indecent programming to times of day when parents have an opportunity to supervise their children, moreover, fails to address the impracticality of parents supervising their children's listening and viewing 24 hours a day.102 The record in this case includes thousands of letters from parents addressing this issue and convinces us that parents who wish to exercise such supervision do not have the tools or time available to do so because of the pervasiveness of the broadcast media and the lack of effective parental control devices.103 Although Broadcasters' study attempts to show that op- portunities for parental supervision are extensive, it fails to demonstrate that meaningful parental supervision is possible as a practical matter.104 Indeed, in view of the substantial amount of unsupervised viewing and listen- ing by children, the number of children who are without parental supervision and the factors interfering with parental ability to supervise children's viewing and listening effectively, we must conclude that time channeling would be an ineffective means of protecting children from broadcast indecency. 75. Several commenters also argue that, because the Commission's definition of indecency and its indecency enforcement policies are allegedly vague, unless a time channeling approach is adopted in lieu of a 24-hour pro- hibition, the threat of sanctions could deter some broadcasters from presenting programs that are not actually indecent.105 C&M maintains that time channeling recognizes the rights of broadcasters to transmit constitution- ally protected indecent speech and the rights of listeners to receive indecent programming.106 This request for a "safe harbor" to present indecent programming reflects a belief that a broadcaster cannot determine with any de- gree of certainty whether a specific program violates the guidelines adopted in this proceeding. This is incor- rect. Our definition of indecency, read in conjunction with our decisions in enforcement actions, provides li- censees sufficient guidance to decide whether a program would be indecent. 2. Ratings and Warning Devices 76. Another alternative to a 24-hour prohibition of broadcast indecency is the use of a voluntary industry rat- ings code for television and radio broadcasts. The ratings, which would be published in television and radio guides and announced prior to each program, would alert the viewer or listener to the content of the program. We conclude that ratings and warnings would not effectively limit children's exposure to indecent programming, 95. Id. at 23. 96. KDVS Comments at 7-8. KDVS submits data from a 1983 Arbitron survey of the San Francisco metropolitan area showing that teens comprise one to four percent of the total television broadcast audience during the day. 97. AFA Comments at 36-37; Lynda Beams (Beams) Reply Comments at 8-9 and Exhibit G; Bonneville Comments at 8. 98. ACT', 852 F2d at 1341. 99. AFA Comments at 29. See also Salem Reply Comments at 63, n. 92, in which Salem cites a 1990 Nielsen study showing that over 14% of VCR taping is done from 11:00 p.m. to 6:00 a.m., and over 50% of VCR recordings are made when the television is turned off. 100. KDVS Reply Comments at 6. 101. For this reason, we overrule the conclusion reached in the Reconsideration Order, 3 FCC Rcd 930 (1987), that time channeling is an effective means of controlling children's access to indecent broadcasting. 102. Indeed, it appears that the most effective means for parents to actively supervise their children's listening and viewing activities is to remove all televisions and radios. This result not only is highly impractical, but also would deprive families of the many benefits of the broadcast media. 103. See n. 85, supra. 104. See paras. 57-64, supra. 105. See Post Comments at 1-2; Cox Comments at 24-25. 106. C&M Comments at 28-30. Copyright 1990. Pike & Fischer, Inc. 67 RR 2d Page 1729 67 RR 2d CASES since this method would require parents to actively supervise their children's listening and viewing at all hours and in all locations. The effectiveness of ratings and warnings is further reduced by random tuning behavior known as "grazing," in which viewers use television remote control or radio scanning devices to rapidly tune through the entire channel menu until they find something interesting enough to hold their attention. 77. The NOI requested comment regarding the use of a voluntary industry ratings code for television and radio broadcasts. However, the NOI expressed doubt that ratings and warnings would prevent minors from viewing or listening to indecent programming because the broadcast audience is constantly tuning in and out of programs, and suggested that random tuning behavior may be even more prevalent today than when Pacifica was decided in 1978.107 The NOI suggested that children could be exposed to different programming in rapid succession without warning as to content either because they graze or because they are co -viewing with others who are grazing. 78. Several commenters address the possible use of ratings and warning devices. USCC and KDVS suggest that a combined time channeling and ratings system could be effective.108 However, AFA and Salem suggest that ratings require parental supervision in order to be effective.109 Other commenters fear that an indecency warn- ing could attract children to a particular broadcast110 or that a warning could serve to "license" an indecent broadcast by warning the viewer of content." Several commenters also specifically responded to the Commis- sion's discussion of grazing. Broadcasters submits a study conducted by Arbitron and NAB of 13,000 radio lis- teners aged 12 and over showing that this group listened to an average of 2.99 radio stations per week.112 Broadcasters concludes that this study indicates that neither adults nor children engage in significant random tuning for radio. Pacifica claims that radio listeners, especially those who listen to noncommercial radio sta- tions, do not engage in grazing.113 On the other hand, others contend that grazing is prevalent.114 79. We conclude that ratings and warnings would not effectively limit children's exposure to indecent program- ming. Currently there is no device which would permit a parent to "lock out" programming. Unless it were practical for parents to supervise viewing at all times, a child may ignore a warning and view or listen to inde- cent programming. Indeed, a warning may attract a child's attention and lead the child to view or listen to the program. This is of particular concern because of the significant amounts of unsupervised viewing and listening by children. We also believe that grazing is sufficiently common to reduce the effectiveness of ratings, even if a child is supervised. Grazing and channel changing by either a parent or a child may cause the viewer or lis- tener to miss a content warning.115 We believe the study cited by Broadcasters indicating the average number of radio stations listened to per week is not relevant in determining whether grazing occurs. Grazing involves turning to a number of channels in a short period of time, and such rapid switching may not be reflected in rat- ings. Broadcasters do not state whether the study asked listeners if they engaged in grazing to find those chan- nels, or if they ever engaged in grazing. Therefore, we conclude that lack of parental supervision, coupled with the proclivity of viewers and listeners to graze, would undermine the efficacy of a system of ratings and warnings. 3. Broadcast Technologies 80. The NOI requested comment on whether there are feasible broadcast technologies that could restrict chil- dren's access to indecent broadcasts. We conclude that although such technology may be feasible, no such tech- nologies are currently available to the public for this purpose. 81. The NOI suggested that the FM or television aural subcarrier could be used for the broadcast of audio in- decency. The subcarrier signal would be receivable only by special decoders. Salem supports the NOI's assess- ment that subcarriers could be used to provide audio indecency. Salem maintains that an FM station could in- stall a subcarrier signal generator at minimal expense, and that decoders for home use currently cost approxi- mately $60, but could be expected to fall in price if produced in large quantities.116 John W. Olivo, Jr., suggests use of a signal that would permit electronic blocking of programs by home receivers. KDVS, however, 107. NOI at 8363 and n. 44. The Pacifica Court noted, "Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content.' 438 US at 738. 108. USCC Comments at 6; KDVS Comments at 1. 109. AFA Comments at 46; Salem Reply at Comments at 72. 110. Beams Reply Comments at 10; Salem Reply Comments at 72; AFA Comments at 46. 111. MIM Reply Comments at 30. 112. Broadcasters Reply Comments at 9, n. 17. 113. Pacifica Comments at 21-23. 114. AFA Comments at 44-46, n. 65; Salem Reply Comments at 72, n. 105; MIM Reply Comments at 35-36. 115. We note that the broadcast in question in Pacifica was heard by a man while driving with his young son, and that the parent apparently missed the warning aired before the broadcast. Pacifica, 438 US at 730. 116. Salem Reply Comments at Appendix 18. Page 1730 Report No. 43-37 (9/10/90) BROADCAST INDECENCY suggests that alternative broadcast technologies may not be financially feasible for many broadcasters, particu- larly noncommercial stations.117 82. As another alternative, NRB suggests that the Commission permit the broadcast of scrambled indecent ma- terial at any hour.118 Kennedy B/casting ("Kennedy") similarly suggests that low power television (LPTV) sta- tions be permitted to offer adult-oriented programming if scrambled. NRB and Kennedy argue that the decoder necessary to view scrambled programming would protect children from indecent material in much the same way as a cable lock -box or parental key. Kennedy also asks the Commission to state whether indecency standards will be applied to subscription television. 83. With respect to scrambling, we note our previous statements that we do not impose regulations regarding in- decency on encrypted services, such as subscription television, that lack "the indiscriminate access to children that characterizes broadcasting." Yideo 44, 33 FCC Rcd 757, 760 [64 RR 2d 378] n. 2 (1988), rev. on other grounds sub nom. Monroe Communications Corp. v. FCC, 900 F2d 351 [67 RR 2d 843] (DC Cir 1990). While signal blocking and subcarrier use appear to be technologically feasible to prevent reception by individuals not wishing to receive certain signals, neither is available today, so we cannot rely on these technologies either to protect children from exposure to indecent broadcasts or to assist parents in supervising their children's viewing and listening. Use of a signal as suggested by Olivo also is not available today nor expected to be available in the foreseeable future, and may or may not prove practical. However, we encourage interested parties to con- tinue to bring to our attention technologies or other means capable of restricting access by children to indecent broadcast programs. F. Non -Broadcast Alternative Programming Sources 84. We recognize that we must be sensitive to the concern of the Supreme Court that the adult population not be reduced to seeing or hearing only what is fit for children.119 In Pacifica, the Supreme Court recognized that non -broadcast alternatives to broadcast indecency are available to adults, including tapes, records, theaters and nightclubs. The NOI requested comment on whether these non -broadcast alternatives and additional non - broadcast alternatives, including cable with a lock -box capacity, videocassettes, audiocassettes, and motion pic- tures, provide adults with access to visual and audio programs functionally equivalent to those that would be proscribed from broadcast. We noted that cable television, a non -broadcast alternative not mentioned by the Pacifica Court, provides adults with access to programming designed for mature audiences yet incorporates equipment that facilitates parental control over the viewing of their children. Several commenters agree with the Commission's assessment that adults have many alternative sources of indecent material.120 AFA submits an analysis of the MPAA ratings for 1,309 movies shown on premium cable services from Dec. 26, 1987, through Jan. 12, 1990, and claims that 663, or 51%, were R-rated.12 85. In response, Broadcasters argues that total suppression of indecent material in the broadcast medium would deprive adults of their ability to receive protected material, and thereby would violate their First Amendment rights,122 because much material that might be indecent either is not available elsewhere or could be found only with time or effort. Broadcasters also claims that live radio and television talk shows, special news reports, public affairs programs, and many made -for -television entertainment programs are not available elsewhere. Broadcasters maintains that at least seven of the broadcast programs that triggered Commission action in 1989 contained material that was unavailable in any other medium.12 Even if some material is available, Broadcast- ers asserts, many adults will be deterred from obtaining the material because they will have to determine if the material is available and then purchase it. Furthermore, the timeliness of the material will be lost and, with it, a large measure of at least some of the programs' value.124 Broadcasters also argues that adults' ability to pur- chase indecent material is irrelevant constitutionally because the Suprenie Court has "made clear that free speech may not be `abridged on the plea that it may be exercised in some other place.' "125 Broadcasters also claims 117. "(DVS Reply Comments at 7. 118. NRB Reply Comments at 13. 119. Butler v. Michigan, 352 US 380, 383 (1957). In stroking down a state statute that prohibited the sale to adults as well as to children of books "tending to the corruption of the morals of youth," the Court held that the statute was not reasonably tailored to its expressed purpose. In this case, a book arguably within the prohibited category was sold to an adult, and the Court stated that the efect,of the statute was to reduce adults to reading only what is fit for children. 120. See Bonneville Comments at 8-9; AFA Comments at 49-52; AFA Reply Comments at 34-36. 121. AFA Comments at Appendices 4 and 5. In addition, Appendix 3 lists over 200 titles of videotapes available through sexually - oriented magazines. 122. Broadcasters Comments at 6. See also Pit Comments at 8-9. 123. Broadcasters Reply at Comments at 3. Six of the broadcasts mentioned by Broadcasters consisted of radio talk shows, and the seventh included a live telephone conversation. 124. Broadcasters Comments at 8-9. 125. Broadcasters Comments at 9, citing Schneider v. State, 308 US 147 (1939). Copyright 1990, Pike & Fischer. Inc. 67 RR 2d Page 1731 67 RR 2d CASES that "every decision cited in the long history of this proceeding, whether in broadcasting, cable, telephone, or print, unhesitatingly concluded that blanket bans on indecency violate the First Amendment "126 86. We conclude that a 24-hour prohibition on broadcast indecency will not, in the words of the Pacifica Court, "reduce adults to hearing [or seeing] only what is fit for children.n127 The Court specifically referenced Butler in affirming the Commission's action in Pacifica, noting that "[a]dults who feel the need may purchase tapes and records or go to theaters and nightclubs to hear these words." 438 US at 750 n. 28. See also 438 US at 760 (Powell, J., concurring). Thus, the Court has recognized that the opportunity to obtain access to indecent material through other outlets is sufficient even if those outlets are not absolutely fungible with broadcasting. 87. In addition, indecent material is available on media that are largely indistinguishable, from the viewer's perspective, from broadcast television, although their characteristics facilitate restricting access to adults. Parties do not question that adults can obtain indecent material through cable television, wireless cable,128 home satellite dishes,1 9 or satellite master antenna television systems (SMATV)13° and, soon in the future, DBS.131 We note, for example, that as of July, 1990, 53.9 million households, or 58.6% of the total television households, sub- scribed to cable, and 71.3 million television households were passed by cable.132 The individuals who seeks in- decent material via cable television need not leave his or her home to obtain the material. Furthermore, through the use of a lock -box or parental key, parents can control children's viewing, even permitting children to view indecent material if parents believe that doing so is in a child's best interest. AFA in its comments demonstrates that a significant number of R-rated movies are shown on cable. Accordingly, imposition of a 24-hour prohi- bition on broadcast indecency will not significantly interfere with the ability of adults to view or listen to in- decent programming. 88. Moreover, Butler does not address the situation presented here, in which there is no feasible way to offer adults access to the medium without offering access to children. Butler concerned the sale to adults of books "tending to incite minors to violent or depraved or immoral acts manifestly tending to the corruption of the morals of youth." 352 US at 381. Distributors of books or other media such as magazines, movies, and video and audio cassettes, with a salesperson behind the counter, have the means to control access by children at their point of sale or access. Thus, in the words of Justice Powell, dissemination of this kind of speech to children may be limited without also limiting willing adults' access to it." Pacifica, 438 US at 758 (Powell, J., concur- ring). Broadcasting, however, has no salesperson behind the counter or lockbox which parents may use to con- trol access. Unlike other media, broadcasting is delivered directly into the privacy of the home and does not distinguish among recipients. Accordingly, "such a physical separation of the audience cannot be accomplished in the broadcast media.... [T]he broadcaster cannot reach willing adults without also reaching children." Id. at 758-759. Butler simply does not address the conflict between adults' right to obtain indecent material and the need to protect children from exposure to such material in the broadcast medium. We believe, however, that the established compelling interest in protecting children, coupled with the impossibility of separating children from adults in the broadcast audience, must outweigh the right of adults to view or to hear broadcast indecency, es- pecially when adults can readily see or hear such material on widely available and readily accessible media which can separate children and adults. As Justice Powell said, Butler's attentiveness to adults' rights "is not sufficiently strong, to leave the Commission powerless to act" to control broadcast indecency. Pacifica, 438 US at 760 (Powell, J., concurring). G. Enforcement 89. The foregoing demonstrates that only a 24-hour prohibition would effectively serve to protect children from broadcast indecency. Nonetheless, although audience surveys and data demonstrate the likelihood that signifi- cant numbers of children may be found in broadcast audiences at all times of the day and night, in the future we will consider, on a case-by-case basis, evidence from a station charged with indecent broadcasting that the data concerning children's viewing or listening are not applicable in its specific market. In other words, we will permit the broadcaster to submit evidence illustrating that only "a few of the most enterprising and disobedient young people" are in the broadcast audience in the station's market at the time of the broadcast in question. In this regard, stations will not be required to show that children were not in the market audience on the specific date and at the specific time that the allegedly indecent program was aired (e.g., Thursday, July 12, 1990 at 11:30 p.m.). Rather, stations will be permitted to demonstrate through ratings data or other probative evidence that children typically are not in the audience on the day and at the time in question (e.g., Thursday nights at 126. Broadcasters Comments at 9-10. 127. Pacifica, 438 US at 750 n. 28. 128. "Wireless cable" is a relatively new service that provides multiple channels of video entertainment and informational programming using microwave frequencies and special reception equipment. Currently there are 50 or more systems operating in the United States, and numerous additional systems are planned. See Competition, Rate Deregulation and the Commission's Policies Relating to the Provision of Cable Television Service, Report, MM Docket 89-600 at 53 (released July 31, 1990, FCC 90-276). 129. An estimated 2.8 million home satellite dishes are in use. Id. at 55. 130. Approximately 500,000 viewers subscribe to SMATV service. Id. at 57. 131. See id. at 56. 132. See BROADCASTING, July 16, 1990, at 94. Page 1732 Report No. 43-37 (9/10/90) BROADCAST INDECENCY 11:30 p.m.). This policy will ensure that enforcement of the broadcast indecency statute will be narrowly tai- lored to situations in which there is in fact a risk that children are in the audience. We do not believe this re- quirement is unduly burdensome for a licensee.133 90. We note that in several prior instances, parties have responded to Letters of Inquiry or Notices of Apparent Violations with data which, they argue, demonstrate that few or no children were likely to have been listening to their particular station when the alleged indecent language was aired. Listeners and viewers, however, often switch indiscriminately from station to station and, particularly in the case of radio, "tune into a station gener- ally without the benefit of a schedule of programs or warning as to potentially offensive content." In re Paci- fica, 2 FCC rcd at 2701, citing Pacifica, 438 US at 760 n. 2 (Powell, J., concurring). As a result, if children in a given market are in the broadcast audience, they may well tune into a particular station when "grazing" through different channels on their radio or TV set. Accordingly, to ensure that children are not exposed to in- decent programming, we will require a station defending against a broadcast indecency complaint to demonstrate that children in fact are not in the broadcast audience for the entire market, not just the particular station, at the time it aired the allegedly indecent material. IV. Conclusion 91. Based upon the information contained in the record and discussed in this Report, and our analysis of the applicable constitutional law as recently set forth by the Supreme Court in Sable, we conclude that the 24-hour prohibition on broadcast indecency is the most narrowly tailored means of protecting children from indecent material. In 1988 Congress, concerned with children's access to indecent material through broadcast stations, statutorily required this Commission to enforce the prohibition against indecent material on a 24 -hour -a -day basis. In response to the Court remand of the record in ACT II, in which the validity of the statute and the Commission's implementation of it was put at issue, we have conducted a full and fair proceeding to assess the validity of the 24-hour prohibition. In the NOI, we invited comment on a broad range of relevant issues and received comment on these and additional issues that responding parties wished to address. Over 92,500 com- ments have been received in response to this NOI, the vast majority of which favor the 24-hour prohibition. 92. Congress and the courts have determined that indecent material is potentially harmful to children. The Commission's definition of indecency has been affirmed by the Supreme Court, and permits broadcasters to identify material that is indecent. Because data gathered in this proceeding establish that children are in the broadcast audience at all times of the day and night, we do not believe that a channeling mechanism will ac- complish the compelling governmental purpose of protecting children. Adults, on the other hand, have other means to access such material should they so desire. 93. To comply with Sable's requirement that the means to accomplish the governmental interest be tailored as narrowly as possible, we have decided, when enforcing the 24-hour prohibition, to consider on a case-by-case basis any information -that children are not in the broadcast audience in the market of the station accused of airing indecent material. This policy, we believe, will ensure that enforcement actions are taken only against those stations that broadcast indecent material when children are in the audience. V. Ordering Clauses 94. Accordingly, it is ordered, that the late filed reply comments of AFA are accepted. 95. It is further ordered, that upon release, the General Counsel is instructed to submit this Report to the U.S. Court of Appeals for the District of Columbia Circuit in response to the remand of the record in Action for Children's Television v. FCC, No. 88-1916. 96. It is further ordered, that this proceeding is terminated. CONCURRING STATEMENT OF COMMISSIONER JAMES H. QUELLO I concur in this Report because Congress unequivocally declared that the Commission "shall promulgate regula- tions ... to enforce the provisions of [Section 1464] on a 24-hour per day basis."' I agree completely with the Report's conclusion that our interest in helping parents control their childrens' me- dia viewing habits is paramount. The courts have recognized that protecting the physical and psychological well-being of children is a compelling interest. See, e.g., Sable Communications of California, Inc. v. FCC, 109 S Ct 2829, 2836 (1989). 133. We note that broadcast licensees are obligated to know and to serve the special needs of children, see Children's Television Programming, 55 RR 2d 199, 214 (1984), and as a result, they appear to be uniquely able to demonstrate that children are not present in the listening or viewing audience. 1. Making Appropriations for the Department of Commerce, Justice, and State, the Judiciary, and Related Agencies for the Fiscal Year Ending Sept. 30, 1989, and for Other Purposes, P.L. No. 100-459, Section 608,102 Stat 2186, 2228 (1988). Copyright 1990. Pike & Fischer, Inc. 67 RR 2d Page 1733 67 RR 2d CASES Given the vital nature of this interest, it is important to keep in mind that this Report will be subject to imme- diate judicial scrutiny as the pending litigation regarding the 24-hour ban resumes.2 Thus far, the courts have never upheld a band on indecent material for any medium, and have struck down regulations deemed to be ex- cessively burdensome.3 Perhaps for that reason, we might have gone farther in this Report to obtain empirical evidence of the viewing habits of children 12 and under. Ever since I came to the Commission some 16 years ago, I unhesitatingly have pointed out the need to enforce our Rules against those few licensees who go too far. At times in the past I felt like the only Commissioner who favored this policy. Nevertheless, I think it is important to give credit where it is due to the broadcast industry. Thus, while it may be true, as the Report points out, that theatrical presentations of certain films such as "Deep Throat" or "Debbie Does Dallas" have not been held to be obscene, it is also a fact that there has never been a threat that movies of this type would show up on free -over -the -air television. Citing such hard core films, the Report strays far afield from the legitimate concern with broadcast indecency and runs the risk of tarring broadcasters with too broad a brush.4 No licensee in America has ever aired the type films listed in the Report, and, to my knowledge, no licensee has ever considered doing so. Even on cable television, where courts have found a greater right to transmit such material, operators have steered clear of hard core fare except in a very few instances.s Indeed, broadcasters have exhibited commendable sensitivity to issues of indecency, as befits their status as public trustees. In this regard, the Board of Directors of the National Ass'n of B/casters in June issued a State- ment of Principles for radio and television broadcasting. The Statement addressed various areas of programming content in order to "reflect what [the NAB] believes to be the generally accepted standards of America's radio and television broadcasters." With respect to sexually oriented material, the Statement provided, in relevant part "Programming that purely panders to prurient or morbid interests should be avoided. Where significant child audiences can be expected, particular care should be exercised when ad- dressing sexual themes. Obscenity is not constitutionally protected speech and is at all times unacceptable for broadcast. All programming decisions should take into account current federal requirements limiting the broadcast of indecent matter." Although the Statement of Principles is advisory only,6 such efforts by broadcasters should be recognized and appreciated. Finally, I agree with the Report that adults who wish to view indecent material have access to such program- ming from other media. But I hesitate to conclude that the other sources are "largely indistinguishable" from, or "functionally equivalent" to broadcasting. Report paras. 84, 87. Such a characterization tends to undermine 2. Action for Children's Television v. FCC, No. 88-1916 (DC Cir Sept. 13, 1989) (remanding issue of 24-hour ban to the Commission for "a full and fair hearing on ... the propriety of indecent broadcasting"). 3. E.g., Sable Communications of California, Inc., 109 S Cr at 2836-39; Wilkinson v. Jones, 480 US 926 (1987) (mem.), affng, ng, 800 F2d 989 (10th Cir 1986), affng sub nom. Community Television of Utah, Inc. v. Wilkinson, 611 F Supp 1099 (D UT 1985); Bolger v. Young Drug Prods. Corp., 463 US 60 (1983); Sable Communications of California, Inc. v. Pacific Telephone & Telegraph Co., 890 F2d 183 67 RR 2d 151 (9th Cir 1989); Action for Children's Television v. FCC, 852 F2d 1332 (DC Cir 1988); Catlin Communications, Inc. v. FCC, 837 F2d 546 [64 RR 2d 762] (2d Cir 1987), cert. denied, 109 S Ct 305 (1988) ("Carlin III'); Carlin Communications, Inc. v. FCC, 787 F2d 846 [60 RR 2d 230 (2d Cir 1986) ("Carlin II"); Cruz v. Ferre, 755 F2d 1415 [57 RR 2d 1452] (11th Cir 1985); Carlin Communications, Inc. v. FCC, 749 F2d 113 [57 RR 2d 163] (2d Cir 1984). ("Carlin I'); Fabulous Associates, Inc. v. Pennsylvania Public Utility Comm n, 693 F Supp 332 (ED PA 1988). I think we make a case that broadcasting is a more pervasive medium than those involved in previous cases. However, Congressional sponsors of the ban on indecent "dial -a -porn" legislation stated that "[t]elephones are precisely like radio and television because of their easy accessibility to children and the virtual impossibility for parents to monitor their use," and asked, "[ijs there really a medium more 'pervasive' than the telephone?" 134 Cong. Rec. H1694 (April 19, 1988) (remarks of Rep. Bliley). 4. As originally drafted, the Report even cited sex magazines, sex manuals and pornographic playing cards as examples of indecent but non -obscene materials. Such examples are irrelevant to broadcasting and wisely have been deleted from the fmal Report. 5. While I understand that examples of hard core pornography were identified to illustrate the "broad range of material that ... could be considered indecent," Report of the Commission at para. 21, it would be well for us to remember that this "broad range encompasses programming of real merit. See, e.g., Hickey, Four Letters Spell Dilemma on TV News, WASHINGTON TIMES, June 29, 1990 at B6 (detailing ways in which television stations modified their news coverage of the Vista Hotel sting operation in the Marion Barry drug and perjury trial). 6. Unlike the NAB's Television Code, which for thirty years provided broadcasters with guidelines for meeting their statutory obligation to serve the public interest, the Statement of Principles provides no means of enforcement. The NAB unfortunately is barred from doing more by a judicial holding that the Television Code violates antitrust laws. See United Stares v. National Assn of B/casters, 536 F Supp 149 [51 RR 2d 175] (D DC 1982). This decision was a disservice to the American public that 1 hope will be overturned by Congressional action. See, e.g., TV Violence Act, S. 593, which would grant antitrust immunity to allow the industry- to adopt voluntary guidelines to help control depictions of violence, sexually explicit material and use of illegal drugs. 7. Adult programming is widely available on audio and video casettes, cable television and in theatres. But as the Commission recently concluded in our report to Congress on cable television, MMDS is currently available to only 300,000 subscribers nationwide and DBS does not yet exist. See Competition, Rate Deregulation and the Commission's Policies Relating to the Provision of Cable Television Service, MM Docket No. 89-600 (adopted July 26, 1990) at paras. 100, 104. Even cable is unavailable to some ten percent of television households, and approximately 43 percent to homes passed do not subscribe. Id. para. 3. Page 1734 Report No. 43-37 (9/10/90) BROADCAST INDECENCY the public interest standard that makes broadcasting unique. For if we must consider the overall media envi- ronment to gauge whether or not the public has adequate access to information, it weakens the rationale for im- posing special information obligations on Commission licensees. Suffice it to say that if adults wish to go the extra trouble of obtaining indecent programming, nothing we do today prevents them from doing so. APPENDIX A The following parties filed formal comments: 1. Action for Children's Television, American Civil Liberties Union, Association of Independent Television Stations, Inc., Capital Cities/ABC, Inc., CBC, Inc., Infinity B/casting Corp., Motion Picture Ass'n of America, Inc., National Ass'n of B/casters, National B/casting Co., Inc., National Public Radio, People of the American Way, Post -Newsweek Stations, Inc., Public B/casting Services, Radio -Television News Directors Ass'n, Recording Industry Ass'n of America, The Reporters Committee for Freedom of the Press, and Society of Professional Journalists (Broadcasters) 2. American Family Ass'n, Inc. and Children's Legal Foundation, Inc., submitted on behalf of American Family Ass'n, Advent Christian General Conference, Baptist General Conference, Catholic Center, Christian Standard, Conservative Congregational Christian Conference, Children's Legal Foundation, Assembly of God, Associate Reformed Presbyterian, Central Presbyterian Church, Conservative Baptist Ass'n, Diocese of Eau Claire, Evangelical Free Church of America, General Ass'n of General Baptists, International Pentecostal Church of Christ, North American Christian Convention, Wesleyan Church, General Ass'n of General Baptists, General Conference Mennonite Church, Missionary Church and Open Bible Standard Churches (AFA) 3. Arizona Board of Regents for Benefit of the University of Arizona, Arkansas Educational Television Comm'n, Board of Regents of the University of Houston System, Board of Trustees of the University of Illinois, Council for Public Television, Channel 6, Inc., Greater Dayton Public Television, Inc., Maryland Public Television, Milwaukee Area District Board of Vocational, Technical and Adult Educa- tion, Nebraska Educational Telecommunications Comm'n, The Ohio State University, Public Television 19, Inc., The Regents of the University of New Mexico and the Board of Education of the City of Al- buquerque, NM, St. Louis Regional Educational and Public Television Comm'n, The University of Ne- braska, WITF, Inc., and WSKG Public Telecommunications Council, in a pleading entitled "Joint Com- ments of Noncommercial Parties" (Joint Parties) 4. Bonneville Int'l Corp. (Bonneville) 5. Capital Cities/ABC, Inc. (ABC) 6. Cohn and Marks Law Firm (C&M) 7. Cox Enterprises, Inc. (Cox) 8. Marc Dyer (Dyer) 9. Evangelical Free Church of America (Evangelical) 10. Gospel Opportunities, Inc. (Gospel) 11. Kennedy B/casting, Inc. (Kennedy) 12. Morality in Media, Inc. (MIM) 13. John W. Olivo, Jr. (Olivo) 14. Pacifica Foundation, the National Federation of Community B/casters, P.E.N. American Center, and Allen Ginsberg (Pacifica) 15. P.E.N. American Center, William S. Burroughs, Allen Ginsberg and Michael McClure (PEN) 16. Post -Newsweek Stations, Inc. (Post) 17. United States Catholic Conference (USCC) 18. University of California Radio Network and Station KDVS-FM (KDVS) The following parties filed formal reply comments 1. Broadcasters 2. AFA 3. American Academy and Institute of Arts and Letters statement 4. Lynda Beams (Beams) 5. Central Communications and Electronics, Inc. (Central) 6. City Lights Booksellers & Publishers, Sandra Lee Golvin, David H. Halperin, Eileen Myles, Ron Padgett and Patrick Zale (City Lights) 7. Allen Ginsberg 8. Barbara M. Hattemer (Hattemer) 9. Kenneth C. Hill 10. KDVS 11. MIM1 12. National Religious B/casters (NRB) 13. PEN 14. Salem Communications Corp. and Focus on the Family (Salem) 1. MIM also filed further reply comments. Copyright 1990. Pike & Fischer, Inc. 67 RR 2d Page 1735 FCC 88-416 37572 53 FR 52425 In the Matter of ENFORCEMENT OF PROHIBITIONS AGAINST BROADCAST OBSCENITY AND INDECENCY IN 18 USC §1464 Adopted: December 19, 1988 Released! December 21, 1988 15324(RX23), 533999J Indecency policy: elimination of "safe harbor.' Thc indecency restrictions of 18 USC $1464 will now be enforced twenty-four hours a day under a new Rule, $73.3999, which has been promulgated in compliance with a statutory directive contained in P.1.. No. 100-459. In enforcing this Rule, the generic definition of indecency will be applied; under this definition, broadcast indecency is language or material that, in contest, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or eccrctory activities or organs. Under previous interpretations of $1464, the law was applied to prohibit the broadcast of obscene programming during the entire day but indecent programming was prohibited only whcn there was a reasonable risk that children might be in the audience. Broadcwa Obscenity and Indecency, 65 RR 2d 1038 11988j. 65 RR 2d CASES ORDER By the Commission: (Commissioner Dennis concurring and issuing a statement). 1. On Oct. 1, 1988, the President signed into law P.L. No. 100-459, which contains appropriations for the Commission for fiscal year 1989.1 This legislation also contains the following provision: By Jan. 31,1989, the Federal Communications Commission shall promulgate regulations in accor- dance with Section 1464, Title 18, United States Code, to enforce the provisions of such section on a 24 hour per day basis. 2. In compliance with this law, we are adopting a new rule pursuant to which the Commission will enforce the provisions of Section 1464 of the United States Criminal Code on a twenty-four hour a day basis. 3. Under previous interpretations of Section 1464, the Commission and the courts had applied this law to pro- hibit the broadcast of obscene programming during the entire day and indecent programming only when there was a reasonable risk that children might be in the audience.2 Initially, the Commission had suggested that this risk might be sufficiently diminished after 10 p.m. to permit broadcasts aired after that time.2 'In a 1987 ruling, however, the Commission stated that its current thinking was that such broadcasts would not be permissible until after 12:00 midnight. Thereafter, the United States Court of Appeals for the District of Columbia Circuit re- manded two Commission rulings concerning post -10 p.m. indecent broadcasts in Action for Children's Television v. FCC. 852 F2d 1332 [65 RR 2d 451 (DC Cir 1988) ('ACT"), for a further explanation justifying its "new, more restrictive channeling approach' The Court instructed the Commission to create a more complete and thorough record to support channeling prescriptions.6 In order to comply with the explicit mandate of the re- cent legislation, however, we must now abandon our plans to initiate a proceeding in response to the concerns raised by the Court's decision. 4. The directive of the appropriations language affords us no discretion. It directs us to exercise our authority under the Communications Act to enforce the restrictions of Section 1464 of the Criminal Code on a twenty- four a day basis. Consequently, in accordance with this legislative mandate and pursuant to our authority 1. Making Appropriations for the Departments of Conuntace, Justice, and State, the Judiciary, and Related Agencies for the Fiscal Year Ending Sept. 317, 1989, and for Other Purposes, p1_ 100-459 (signed Oct. 1, 1988). 2. See Pacifica Foundation. 56 FCC 2d 94 /32 RR 2d 1331 (1975) ('WBAI-FM'), affd, Pacifica Foundation, 438 US 726143 RR 2d 493/ (1978) ("Pacifica"); Pacifica Foundation Inc, 2 FCC Rcd 2698 [62 RR 2d 11911 (1987). The Regents of the University of California, 2 FCC Red 2703 162 RR 2d 11991 (1987)and Infinity B/caning Corp of PA., 2 FCC Red 2705 [62 RR 2d 12021 (1987), order on reconsideration, Infiniti B/casting Corp.,3 FCC Rcd 930 /64 RR ld 2111 (1987) (Reconsideration Order), aJJ'd in pan and remanded in pan sub nom., Action far Children s 'Television v. FCC, 852 F2d 1332 [65 RR 2d 45J (DC Cir 1988) (4C7"). 3. WBAI-I'M, 56 FCC 2d at 98. 4. Reconsideration Order, 3 FCC Rcd at 937 n. 47. 5. ACT, 852 F2d al 1334. The Court affirmed a Commission ruling that a morning broadcast violated Section 1464. 6. ld. 7. Thc legislative history of H.R. 4782 also makes clear the Congress adopted the indecency amendment in order to eliminate any re- called o-called safe harbor for the broadcast of indecent material. See 134 Cong Roc S9912 (daily ed. July 26, 1988) (remarks of Scn. Helms). Page 1038 Report No. 42-4 (1/23/89) BROADCAST OBSCENITY AND INDECENCY A31 under Title 47, we will now enforce the indecency restrictions of Section 1464 twenty-four hours a day under our new rule. In enforcing this rule, the Commission'will continue to apply its generic definition of indecency, which has been upheld by the courts.8 Under this definition, 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.° 5. Pursuant to the Administrative Procedure Act, 5 USC §553, the Commission finds good cause for promul- gating the rule herein without prior public notice and comment. Section 553(bX3XB) provides that an agency may promulgate a rule without notice and comment "when the agency for good cause finds ... that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." 5 USC §553(bX3)(B). Because the recently enacted appropriations legislation mandates implementation of a twenty-four hour indecency ban, the Commission's task in promulgating the rule is purely ministerial and leaves no room for discretion. No purpose would thus be served by affording the public an opportunity to comment on this rule before its promulgation. Paperwork Reduction Act Statement The decision contained herein has been analyzed with respect to the Paperwork Reduction Act of 1980, and found to contain no new or modified form, information collection, and/or recordkeeping, labeling, disclosure, or record retention requirements; and will not increase or decrease burden hours imposed on the public. 6. Authority for the action taken herein is contained in Sections 4(i), 303(r), 312(aX6), 312(b), and 503(b)[(1)](D) of the Communications Act of 1934, as amended, and P.L. No. 100-459 (signed Oct. 1, 1988). 7. Accordingly, it is ordered that Part 73 of the Commission's Rules and Regulations is amended as described above and set forth in Appendix A° below. 8. 1t is further ordered that pursuant to the Administrative Procedure Act, 5 USC §553(d)(1), the amendments to the Commission's Rules and Regulations shall become effective Jan. 27, 1989. SEPARATE STATEMENT OF COMMISSIONER PATRICIA DIAZ DENNIS I concur in the result, but 1 write separately to recognize the constitutional question this decision raises. The majority correctly concludes "[t]he directive of the appropriations language affords us no discretion ..." in this matter. Nevertheless, 1 have serious doubts whether our new rule will pass constitutional muster. The Supreme Court in Pacifica Foundation upheld the Commission's finding that an indecent monologue broad- cast in the early afternoon constituted cause for granting a complaint against the station which had broadcast the monologue: FCC v. Pacifica Foundation, 438 US 726 (1978). The Court however, emphasized that its ruling was narrow, and was based on "consideration of a host of variables ..." id. at 750), of which the first men- tioned was the time of day of the broadcast. Id. at 750. Recently the U.S. Court of Appeals for the District of Columbia struck down part of two Commission rulings regarding indecent broadcasts. The Court found that the Commission had not properly justified its choice of the hours 10 p.m. to 6 a.m. for the channeling of indecent speech. The Court directed the Commission to re- open its examination of the time limitation: . in a manner sensitive to these considerations: (1) the speech at issue ... is protected by the First Amendment (2) the Commission's avowed objective is not to establish itself as a censor but to assist parents in controlling the material young children will hear." [Emphasis in original.] Action for Children's Television v. FCC. 852 F2d 1332, 1334 (1988). The Court held that Broadcast material that is indecent but not obscene is protected by the First Amendment the FCC may regulate such material only with due respect for the high value our Constitution places on freedom and choice in what people say and hear. Id. at 1344. Both these rulings suggest that the courts would not uphold an outright ban on the broadcast of indecent speech. In the face of those decisions, I have grave misgivings about the constitutionality of the appropriations language. Our mandate from Congress, however, is unambiguous, and therefore 1 must support the action taken in this Order. 8. See Pacifica, 438 US at ,726; ACT, 852 F2d at 1334. 9. Reconsideration Order, 3 FCC Red at 930. • (AppendirA omitted; see RR Current Service 113:3999. -- Ed. J Copyright 1989. Pike & Fischer. Inc. 65 RR 2d Page 1039