How to: Lodge a TV or Radio Indecency Complaint

by Daniel L. Weiss

A citizens' guide to cleaning up the airwaves.

When it comes to rising levels of indecency on television and radio, many people feel frustrated and helpless. There seems to be little recourse for those concerned with the proliferation of material that just a few decades ago would have incurred legal trouble. There are several options, however, for citizens who wish to clean up the nation’s airwaves. These options include lodging official complaints with the Federal Communications Commission (FCC), local broadcasters, elected officials, and the advertisers who sponsor the programs. As with most public policy issues, these efforts require vigilance, patience, endurance, and cooperation with the officials and organizations tasked with enforcing existing laws.

Know the Issue

The FCC and its mission
The Federal Communication Commission was established by the passage of the Communications Act of 1934. Among the FCC’s many responsibilities is the task of managing and regulating the public airwaves. This includes granting licenses and monitoring companies to determine if they are complying with federal laws.

Perhaps one of the best kept secrets regarding television and radio broadcasters is that they are only granted conditional licenses to broadcast to the public. The law holds that the airwaves are public property, and, as such, must serve the public interest. While the FCC has had difficulty defining what is the public interest, it is clear that much of the content now being seen and heard over these publicly owned airwaves doesn’t come close to it.

In theory, the FCC acts as enforcer of applicable law and has the ability to fine broadcasters who violate the law and even revoke their licenses. Yet, certain limitations exist. According to the FCC:

[B]roadcasters – not the FCC or any other government agency – are responsible for selecting all the material they air. The Communications Act prohibits us from censoring broadcast matter and, therefore, our role in overseeing the content of programming is very limited. We are authorized to fine a station or revoke its license if it has, among other things, aired obscene language, broadcast indecent language when children are likely to be in the audience, broadcast some types of lottery information, or solicited money under false pretenses.”¹[emphasis added]

The FCC also makes clear that the definition of language as it is used here includes non-verbal communication.

What constitutes obscenity?
Federal law prohibits obscene programming on broadcast and cable networks at any time as set forth in Title 18 United States Code, Section 1464 (18 U.S.C. § 1464) and Section 1468 (18 U.S.C. § 1468). To be considered obscene, broadcast material must meet the qualifications set forth in the Supreme Court’s three-pronged Miller test:

(1) [A]n average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest; (2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value. [See Miller v. California, 413 U.S. 15 (1973).]

What constitutes indecency?
The FCC is also charged with regulating indecent speech. This is speech or material that does not rise to the level of obscene but is still considered harmful to minors. The FCC states:

The Commission has defined broadcast indecency as 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 organs or activities.

In applying the “community standards for the broadcast medium” criterion, the Commission has stated, “The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area. Rather, the standard is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant.”

Indecent programming contains sexual or excretory references that do not rise to the level of obscenity. As such, the courts have held that indecent material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted in order to avoid its broadcast during times of day when there is a reasonable risk that children may be in the audience.²

It is important to note that the FCC only considers enforcement actions for indecency infractions that occur between the “safe harbor” hours of 6:00 a.m. and 10:00 p.m. as stated in rule 47 C.F.R. § 73.3999. These indecency standards and times, however, do not apply to cable networks, as determined by the Supreme Court in United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000). Exceptions to this rule include cable operators (47 USC 532) and franchising authorities (47 USC 531) that choose on their own to prohibit such material on leased and public access channels.

For further study on the FCC’s indecency standards see Industry Guidance On the Commission's Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency.

The role of local affiliates
Since the FCC grants operating licenses only to local broadcasters and not the networks that produce TV shows, the FCC applies obscenity and indecency prohibitions only to the broadcast affiliates responsible for airing an offensive program. FCC guidelines state:

The First Amendment and federal law generally prohibit us from censoring broadcast material and from interfering with freedom of expression in broadcasting. Individual radio and TV stations are responsible for selecting everything they broadcast and for determining how they can best serve their communities. …Stations are not required to broadcast everything that is offered or suggested to them.³

These rules allow greater responsibility and flexibility for local stations, as well as granting communities greater control over local broadcasting standards. (This will be explained more in the Take Action section.)

Lack of enforcement
Despite its stated mission, the FCC has come under attack in the last several decades for failing to enforce decency standards. Groups such as Morality in Media (MIM), the Parents Television Council (PTC), and American Family Association (AFA), among others have been working for years to force the FCC to prosecute any of the numerous complaints it receives.

In February 2003, PTC President Brent Bozell took the FCC to task for its lack of indecency enforcement. He claimed that the FCC’s own web site revealed no enforcement actions taken against television broadcasters since its enforcement division was formed. [Read Bozell’s statement.]

In early March 2003, the American Family Association (AFA) contacted 55 federal legislators and asked them to investigate the FCC for “failure to properly protect the viewing public from indecent broadcasts on network television.” The AFA also claims that the FCC has not fined a broadcaster for over twenty-five years. [Click here to read the AFA press release.]

Perhaps the best accounting of the FCC’s failures comes from one of its own officers, Commissioner Michael Copps. In an interview with Morality in Media, Copps explains that “widespread popular revulsion” with today’s television programming requires a “re-examination of the FCC's indecency standard.” [Click here to read this extraordinary interview.]

Commissioner Copps also issued a one page statement following the November 2002 airing of the Victoria’s Secret Fashion Show on CBS, in which he challenges the efficacy of the FCC’s indecency definitions.

In June 2003, the FCC again angered citizens and activists. Despite widespread and vocal opposition to such a move, the FCC voted along partisan lines to raise the media ownership cap from 35 percent to 45 percent. The previous regulation did not allow a company to own TV stations in more than 35 percent of the nation’s television market. Many fear that by raising these caps, large media companies will assume a greater control over programming decisions to the detriment of local communities. Bills have been introduced in both houses of Congress to retain the traditional 35 percent cap.

Dissatisfied with the FCC’s pattern of unresponsiveness, nearly a dozen organizations signed and delivered a letter to the FCC demanding that the agency more clearly define its indecency standards and reform its enforcement processes. The letter—dated April 30, 2003—issues a June 30 deadline for the FCC’s response. Barring positive action, the coalition has threatened to call for congressional hearings to investigate the FCC’s failure to uphold the public’s interest pertaining to indecency.

Groups that have signed on to the letter include the Parents Television Council, Focus on the Family, the Christian Coalition, Concerned Women for America, Kids First Coalition, Culture and Family Institute, Morality in Media, Family Research Council, Citizens for Community Values, American Mothers and the Salvation Army.

Take Action

Organize
While individuals can undertake the following options alone, organizing a group of concerned citizens is a more effective strategy for affecting public policy.

Don’t worry if this is new to you.

Organizing in this sense does not mean that one must form a new lobbying organization with its own tax status. You are working as a citizen. This can be as simple as raising the issue with a circle of friends and asking for their support. A group could be as small as three or four and as large as several dozen, depending on the issue and the time and resources at your disposal. Most of the basic strategies will be outlined here. Simply seek out people who share your concerns and are willing to invest a bit of time, effort, and possibly a few telephone calls and stamps.

The effectiveness of gathering together a group of like-minded, devoted individuals lies in sharing responsibilities and amplifying your voices. With each member assigned to a separate task, your group can quickly mobilize. In the same way, one complaint that could easily be ignored can quickly become a deluge as more people are drawn into your mission. Congressional offices often consider one well-researched, well-written letter to represent 1,000 concerned constituents. How much more effective are one or two dozen such letters!

Things to consider when organizing a group include the frequency of meetings, the issues you want to address, and clearly outlining your target and the results you hope to achieve. Try to meet with some regularity and keep your meetings on task. Identify your key issues and delegate specific tasks to each member. Divide the work as equitably as possible or according to the time and effort each member can offer. Set realistic goals and deadlines – don’t go for broke only to become discouraged when things don’t turn out as planned. Above all, remember that persistence pays off.

Contact the FCC
The first step in filing an obscenity or indecency complaint is to document the offense. The FCC requires very specific information to initiate an investigation. The guidelines call for the following information:

• The name of the offending program.
• The date and time of the broadcast.
• The call sign of the station involved.
• The city and state in which the station is located.
• Information regarding the details of what was actually said (or depicted) during the allegedly indecent or obscene broadcast.

The FCC offers this detailed description of the proper form of documentation:

There is flexibility in how a complainant may provide this information. A complainant may submit a significant excerpt of the program describing what was actually said (or depicted) or a full or partial tape or transcript of the material. In whatever form the complainant decides to provide the information, it must be sufficiently detailed such that the Commission can determine the words and language actually used during the broadcast and the context of those words or language.

Subject matter alone is not a determining factor of whether material is obscene or indecent. Thus, for example, stating only that the broadcast station “discussed sex” or had a “disgusting discussion of sex” during a program is not sufficient. Moreover, the use of specific, isolated words is not determinative of whether material is indecent. Consequently, listing, for example, only isolated words spoken by a radio announcer, without more, is not enough information upon which the Commission staff will initiate an investigation.

General descriptions without a detailed explanation of what was actually stated (or depicted) are generally not sufficient.⁴

Neglecting to include any of this information will result in an almost certain dismissal of your complaint.

Although, the guidelines state that complainants have the option of providing a tape of the program, it is virtually impossible to get the FCC to review your complaint without one. If you do not have a tape of the program or do not have access to a transcript, the Parents Television Council keeps an archive of broadcast television programs. They may be able to provide detailed excerpts of the offensive dialogue or a taped copy of the program for a small fee.

The next step is to compile this information in a letter. Address your complaint to David H. Solomon, Chief, Enforcement Bureau, and specify at the top that you are filing an official complaint. Also state that you expect a timely response. In your letter, include all of the required information and indicate if you are attaching or including supporting documentation. It is also wise to copy certain parties on your official complaint. These would include the offending station, your federal representatives, any of the several media organizations who track FCC issues, and your local news outlets. (Don’t forget to send hard copies of your complaint to these individuals or groups.)

For help in drafting a letter, you can view a sample letter posted on the Citizens for Community Values (CCV) web site. (Please note that this letter was sent to the FCC several years ago and the contact information has changed.)

When you have finished your letter, send the original and four copies of it and any other documentation via U.S. mail to the following address:

Federal Communications Commission
Enforcement Bureau
Investigations & Hearing Division
445 12th Street, SW
Washington, D.C. 20554
(202) 418-7450
Fax: (202)-418-2810

The FCC has been known to consider as one complaint those filed as a group, thus lessening their impact. The best option is to have each member of your group file separate complaints all demanding action. You do not need to indicate to anyone that you have collaborated with others, though that might be helpful when dealing with a specific station or local advertisers.

Be sure to keep copies of everything you send to the FCC. Any documentation you send becomes part of the Commission’s records and will not be returned. It will also be helpful for you as you track the progress of your complaint.

Recently, the Parents Television Council developed a way to send an Official Complaint via e-mail. Although sending hard copies is still the preferred method of sending complaints, time and expedience may necessitate sending complaints through e-mail. If you decide to file an Official Complaint through the Parents Television Council, please be advised that Focus on the Family provides this option as a courtesy to our constituents, but is not offering official support for the PTC or its activities.

The FCC’s response
If you have correctly followed the FCC’s guidelines, your complaint should be reviewed. It is possible that the FCC will reject your appeal on technical grounds, so be diligent in following the guidelines. According to the FCC this is what one can expect after filing a complaint:

Enforcement actions in this area are based on documented complaints of indecent or obscene broadcasting received from the public. The Commission's staff reviews each complaint to determine whether it alleges information sufficient to suggest that a violation of the obscenity or indecency prohibition has occurred. If it appears that a violation may have occurred, the staff will commence an investigation by sending a letter of inquiry to the broadcast station.

If the complaint does not contain information sufficient to ascertain that a violation may have occurred, the complaint will be dismissed. In such a case, the complainant has the option of re-filing the complaint with additional information, filing a petition for reconsideration of the staff action, or filing an application for review (appeal) to the full Commission.

If the facts and information contained in a complaint suggest that a violation did not occur, then the complaint will be denied. In that situation, the complainant has the option of filing a petition for reconsideration of the staff action or an application for review (appeal) to the full Commission.⁵

While waiting for the FCC to process your complaint, take action with other organizations that can curb broadcast indecency.

Contact your elected representatives
From the moment you begin filing a complaint with the FCC stay in touch with your congressional representative. Be sure to find out which person on his or her staff deals with the FCC or media issues. Keep this person apprised of any actions you take and the results you get. Send copies of every letter you generate directly to him or her so it isn’t lost in the congressional mail shuffle. When you speak with the staff person, ask for the congressman’s help in getting a response from the FCC and find out if your congressman is a member of the committee that handles FCC issues. These committees are:

In the House: The Committee on Energy and Commerce
In the Senate: The Committee on Commerce, Science, & Transportation

In addition to your specific complaint, let your congressman and the committee members that handle FCC issues know your displeasure with the way the FCC is being run. These people are directly responsible for overseeing the effectiveness of the Commission.

For help finding your representative’s contact information, please consult the CitizenLink Legislative Action Center.

Contact your local affiliate
Indecency complaints should be directed to the local broadcaster as well as the FCC. The local station is closer to the community and can respond more readily to the community’s needs and sensibilities. Local stations have been known to refuse to air programming they believe will violate community standards.

Despite how you choose to battle broadcast indecency, copies of all correspondence should be sent to both the FCC and the local station. FCC regulations require broadcasters to “maintain a file available for public inspection containing documents relevant to the station's operation.” According to the FCC:

[S]tations have an obligation to serve their local community’s needs and interests and to comply with certain programming and other rules. Because we do not monitor a station’s programming, viewers and listeners are a vital source of information about the programming and possible rule violations. The documents in each station's public inspection file have information about the station that can assist the public in this important role. …We encourage a continuing dialogue between broadcasters and members of the public to ensure that stations meet their obligations and remain responsive to the needs of the local community.⁶

The FCC requires stations to maintain a number of materials in their public files. Among other requirements, the FCC mandates that stations keep in their files the following items pertaining specifically to indecency:

• The license. Stations must keep a copy of their current FCC license in the public file, together with any material documenting FCC-approved modifications to the license. …The license also indicates when it was issued and when it will expire.



• Applications and related materials. The public file must contain copies of all applications filed with the FCC that are still pending before either the FCC or the courts. These include applications to sell the station…or to modify its facilities…. The station must also keep renewal applications that we granted for less than a full license term until final grant of their next renewal application. The FCC may grant such short-term renewals when we are concerned about the station's performance over the previous term.



• Material relating to an FCC investigation or a complaint. Stations must keep material relating to any matter that is the subject of an FCC investigation or a complaint that the station has violated the Communications Act or our rules. The station must keep this material until we notify it that the material may be discarded.



• Letters and e-mail from the public. Commercial stations must keep written comments and suggestions received from the public regarding their operation for at least three years. Noncommercial stations are not subject to this requirement.⁷

The public inspection file must be maintained at the station’s main studio and must be available for public viewing during normal business hours. If any of these materials are missing from the public file, the broadcaster is in violation of FCC regulations. For information on how to report such violations, see the FCC’s information on the Public Inspection File.

In the best circumstances local broadcasters will respond to your concerns about offensive programming. If they do not respond favorably, however, the public file can be an important tool to continue your fight, especially if you consider filing a petition to deny the renewal of a station’s license to broadcast.

Petitions to deny a station’s license renewal
The FCC allows citizens to file formal or informal petitions to deny a station’s license renewal. Its guidelines state:

You can file a formal protest against a station by filing a formal petition to deny its renewal application, or by sending us an informal objection to the application. You must file a petition to deny the application by the end of the first day of the last full calendar month of the expiring license term. (For example, if the license expires on December 31, you have to file your petition by the end of the day on December 1). Before you file a petition to deny an application, you should check our rules and policies, to make sure that the petition complies with our procedural requirements. Before their licenses expire, stations have to broadcast announcements giving the date the license will expire, the date on which a renewal application must be filed, and the date by which formal petitions against it must be filed. You can file an informal objection at any point until we either grant or deny the application.

Be advised that a formal petition to deny a license renewal is a serious action and should be treated accordingly. It is crucial that you have previously contacted the station, documented your complaints, and that the broadcaster has been unresponsive to your concerns.

Conversations with FCC officials have revealed that those intending to file such a petition must serve notice to the broadcaster of their intentions to do so. This may or may not require legal assistance. (Please contact the FCC at the phone numbers below for clarification.) There is no official form required, but any letter must clearly state it is a petition to deny a license renewal. You must include the same information required to file an indecency complaint, including the city and state of the station and its call sign. Identify the date of the license renewal and provide documentation of specific reasons why the station should be denied.

It should be noted that it is be virtually impossible to get a station’s license revoked or denied. This may be because the FCC does not take its job seriously or it may reflect the lack of citizen involvement in the past. It is unlikely that the FCC has ever handled a petition to deny that was accompanied by hundreds or thousands of indecency complaints. For any action against the station to be considered, you must be able to show a pattern of irresponsibility and inaction. For this reason it is extremely important that you check the file occasionally to verify that your letters have been properly filed.

Broadcasters still depend on public support, however, and the threat of action may be as effective in achieving your goals as actual FCC sanctions.

For those seeking greater explanation of these rules and procedures, visit the following links to Code of Federal Regulations:

47CFR73.3580 – Local public notice of filing of broadcast applications.

47CFR73.3584 – Procedure for filing petitions to deny.

47CFR73.3587 – Procedure for filing informal objections.

47CFR73.3588 – Dismissal of petitions to deny or withdrawal of informal objections.

47CFR73.3589 – Threats to file petitions to deny or informal objections.

Since these rules are somewhat vague and complex, contact the appropriate FCC office for clarification of any matters of concern.

• For questions about a TV station, call the Video Division of the Media Bureau at (202)-418-1600 and ask to speak with someone familiar with the licensing process.
• For radio stations, contact the Audio Division at (202)-418-2700.

In either case, don’t hang up until you get the information you need. If the person to whom you are speaking does not know or gives an unsatisfactory answer, ask to speak with someone else. Be persistent. The FCC exists to serve the public interest.

Contact the advertisers
When you are subjected to offensive programming on TV or the radio, take note of the advertisers who sponsor the show. Most likely there is an even mixture of national and local sponsors.

Alerting these companies to your displeasure can be one of the most effective ways of curbing broadcast indecency. Several nat

If you enjoy reading stories like this one, sign up for the free CitizenLink Daily Update e-mail. You'll get news and commentary from Focus on the Family Action delivered right to your computer.