The Broadcast Decency Enforcement Act, signed into law by President Bush on Friday, June 16, boosts the maximum fine for indecency to $325,000—that’s 10 times the previous maximum fine.

The new law is the result of a two-year campaign following Janet Jackson’s now infamous nipple slip at the 2004 Super Bowl.

While major TV networks and Clear Channel Radio can easily cover a $325,000 fine for the sake of ratings, such a penalty could mean disaster for smaller, independent broadcasters, like Portsmouth Community Radio. The station is run by volunteers with the exception of a part-time general manager, and the majority of its programming is live.

“A fine like that would be devastating for small stations,” said WSCA’s interim general manager Tim Stone.

Community radio and television stations across the country will have to reconsider how they conduct themselves on air in the wake of the new maximum fine limit.

“I think the problem for community stations is figuring out what’s indecent,” said Ginny Berson, vice president of the National Federation of Community Broadcasters. “There is a national standard, but it’s undefined. This means stations have to self-censor, and they can lose a lot of good programming that way,” Berson says. She cites an ABC airing of “Saving Private Ryan” on Veterans Day in 2004, during which the “F-word” was neither censored nor reprimanded; conversely, Martin Scorsese’s PBS documentary on the blues was fined for indecent language. “What’s the difference?” Berson asked. “Don’t ask me, and don’t ask the FCC, because it’s unclear.”

Stone says WSCA is researching insurance possibilities to cover the station in the case of an on-air mishap. He also says the station will continue to focus its energies into making sure mistakes don’t happen.

“The best thing is preventative action,” he said.
All WSCA DJs are put through a training period in which they are made aware of the Federal Communications Commission’s rules regarding obscenity, the indecency and profanity. Obscene material may not be broadcast at any time; indecent and profane material may not be broadcast between 6 a.m. and 10 p.m.

According to the FCC, obscene material is that which is explicitly sexual in nature, without any saving artistic merit, so that it “appeals to the prurient interest.” The indecent includes “language or material that … depicts or describes, in terms patently offensive …, sexual or excretory organs or activities.” The profane includes “language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.”

Broadcasters call the hours between 10 p.m. and 6 a.m. the “safe harbor period.” WSCA takes extra precaution with the safe harbor period.

“We narrowed that period,” says Stone. “Our safe harbor period only runs from 11 p.m. to 5 a.m.” During this time, the station may air material that contains profanity and indecency, although the obscene is still not allowed, as dictated by the FCC.

Stone expresses dismay that the FCC applies such blanket judgments to on-air content.

“It used to be that community standards were used to define what was indecent,” he said. “A community like Portsmouth would likely be more liberal in its definition than a community in the Bible Belt.”

In addition to training its DJs, WSCA goes through all CDs that are to be played on the air and marks the tracks with obscenity or profanity. DJs are told not to play those specific tracks. But it’s still, to a degree, left to the listener to define what is inappropriate, since it is up to the public to file a complaint with the FCC.

“It’s about DJs being respectful and listeners understanding artistic value of profanity when it does occur,” said Stone, citing the use of profanity in spoken-word poetry as an example. “We’d like to avoid censoring works with artistic value or literary value.”

About 80 percent of WSCA’s broadcast material is live. Stone says that the fine hike will have no impact on how the station broadcasts.

“By no means would we go to pre-recorded programming,” he said. “Our goal is still to have 100 percent live programming with on-air DJs. We’re not going to change that by one iota.”

The NFCB advises community radio stations, who usually lack the necessary funding to challenge an FCC fine, to err on the side of caution.

“We urge stations to make conscious decisions about what they put on the air,” Berson said. “And, if they do decide to defend something (and challenge an FCC fine in court), to make sure it’s a fight worth fighting and that they have the resources to carry it through.”