United States
The
Federal Communications Commission (FCC) has the right to regulate the broadcast of "indecent" material on free-to-air terrestrial television and radio, because it is broadcast on publicly-owned airwaves that are licensed to broadcasters. It presently enforces a 10:00 p.m. watershed, permitting adult content between then and 6:00 a.m.
[41] The FCC's jurisdiction in regards to content applies only to "over-the-air" television. Cable channels may be more permissive in their content, depending on their target audience and the standards of their advertisers, while
premium channels and over-the-top streaming services are often the most permissive because they are funded primarily by their subscribers, and not commercial advertising.
[42]
In the 1975–1976 television season, the FCC attempted to enforce a "
Family Viewing Hour" policy, in which the
Big Three television networks (
ABC,
CBS, and
NBC) agreed to devote the first hour of primetime to family-friendly programming. In 1976, the rule was overturned as unconstitutional following a lawsuit by the
Writers Guild of America.
[43][44]
In 1978, the
Supreme Court case
FCC v. Pacifica Foundation (dealing with a broadcast of the
George Carlin routine "
Filthy Words" by
WBAI radio) upheld the ability for the FCC to regulate the broadcast of "indecent" material on free-to-air radio and television, citing the "uniquely pervasive presence" of broadcasting in society, and the likelihood that children could be exposed to such content by chance. From then on, the FCC enforced a safe harbor on the broadcast of indecent material between 10:00 p.m. and 6:00 a.m.
[41]
In 1987, the FCC introduced a stricter definition of indecency, defined 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 activities or organs". The FCC also removed the previous 10:00 p.m. watershed and stated that the prohibition would apply during any time that there "is a reasonable risk that children may be in the audience". In 1988, as directed by the United States Congress, the FCC announced that it would ban the broadcast of indecent material entirely, with no safe harbor.[41][45][46] In 1991, the FCC's proposed 24-hour ban was struck down by the D.C. Circuit Court of Appeals as unconstitutional.[47] The Telecommunications Act of 1992 re-established a safe harbor period for indecent content between midnight and 6:00 a.m. The period was lengthened back to 10:00 p.m. and 6:00 a.m. following further D.C. Circuit rulings.[41]
Some American television scenes famous for "pushing the envelope" (such as limited nudity on
NYPD Blue) were aired in the 10:00 to 11:00 p.m. hour; however, the broadcasts were before the safe harbor in the
Central and
Mountain time zones, where programming scheduled for 10:00 p.m.
Eastern would typically be broadcast starting at 9:00 p.m. (using a one-hour delay in Mountain Time broadcast areas). Because each U.S. time zone enters safe harbor separately (at 10:00 p.m. local time), it is possible for not all
network affiliates that air an "indecent" program at the same moment to face the same penalties. Such was the case with
CBS, whose affiliates faced a proposed fine of US$3.63 million for a repeat of the episode "
Our Sons and Daughters" of
Without a Trace in December 2004. The program was flagged for depicting an
orgy involving teenagers. It was televised at 10:00 p.m. in the Eastern and Pacific time zones (within the safe harbor), but at 9:00 p.m. in Central and Mountain times (outside the safe harbor). The FCC split its fine among the 111 CBS affiliates covering those time zones. After a court settlement, the network agreed to pay US$300,000 in fines.
[48][49]
Even though the watershed occurs at the prime time hour of 10:00 p.m., broadcast networks have since avoided indecent content to avoid reprimands from their
affiliates and advertisers, and because of the constant fluctuation of indecency standards to account for changes in acceptance and FCC enforcement.
[42][50][51] In 2011 and 2012, courts overturned fines regarding a brief scene of male nudity in a 2003
NYPD Blue episode, as well as fines over
fleeting expletives in a live awards show broadcast in 2002 by
Fox, ruling that the FCC's basis for the fines was too vague.
[52][53][54]
.
