Indecency: What you can say on the air without sinking your career?

It has been one of the hot-button FCC issue for years, and yet it comes up again and again. Indecency! What is it, anyway? What can you say on the air and stay alive? It's tough, especially when forbidden language is in the popular vernacular while watchdog groups have e-mail mills ready to flood the FCC's enforcement division.

Under the U.S. Criminal Code, you can never use obscene material over-the-air; it's not protected speech under the First Amendment. However, indecent and profane speech is only against FCC regulations during the daylight hours. There's a safe harbor between 10p and 6a where such language isn't actionable.

You'd better not slip and let one of those expletives out during the daytime hours.

So, how do you tell what's okay? The FCC has continued to change its mind on that -- especially with some of its rulings being argued in the courts -- so you'd better not slip and let one of those expletives out during the daytime hours. Unless the Courts throw out the ruling that "fleeting expletives" are indecent, the F-word and the S-word are verboten. You can't use them outside the safe harbor. For almost everything else, you have to do a two-part test.

The traditional FCC test for indecency is a two-part analysis. First, the material must describe or depict sexual or excretory organs or activities. Second, the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium. What is patently offensive has its own three-part test: (1) the explicitness or graphic nature of the description; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and (3) whether the material panders to, titillates, or shocks the audience.

There is a separate test for profanity. Unlike indecency, the test for profanity is relatively simple: even an isolated use of the F-word -- and now the S word --- in a broadcast is a presumptive violation. (Again, this issue is currently being argued in the Courts, but for the time being, if you use either of those words, the station licensee will have to show that its use was essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance. So far, only one broadcast program has met that burden -- the feature film "Saving Private Ryan."

Even an isolated use of the f-word - and now the s-word - in a broadcast is a presumptive violation.

Beyond the use of the F-word and the S-word, the FCC decisions provide little useful guidance of what is indecent or profane, so you need to be very careful. In its indecency enforcement, the FCC focused on both radio and TV, primarily with Howard Stern (when he was on terrestrial radio), Bubba The Love Sponge, Opie and Anthony and a variety of morning disc jockey comedy bits that crossed the line of good taste. They all received fines. Television also got caught in the crossfire, with the airings of "Saving Private Ryan," Janet Jackson's breast, fleeting expletives during the Golden Globes Awards show, and so on. As you probably know Congressional response to "Nipplegate" was to jack up the indecency fines to exorbitant levels.

Obviously, radio reigned in its envelope pushing, which made it seem that the FCC was turning away from indecency enforcement. Indeed, one FCC Commissioner admitted that the Commission hasn't gone after radio because the fleeting expletive issue has yet to be resolved in the Supreme Court. Nevertheless, last month it called up a couple of old TV fines, possibly to make itself look more relevant and vigilant in an election year.

In the tough business of broadcast entertainment, you may feel competitively challenged to present cutting edge, exciting, entertaining programming that appeals to the younger demographic. It makes sense to talk straight, using the type of discourse that has become common in our society. For better or for worse, that type of language has moved far beyond the FCC's indecency standards for television and radio, so until the Courts specifically rule otherwise, you need to "just say no."

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.