Television content, including advertisements are regulated by the FCC.
Advertisers are prohibited from using content that is too sexually explicit, and obscene words and gestures.
"Federal law that governs the contents of radio and TV shows not only bans “indecent” programs, but also bans outright obscenity." - Lyle Denniston SCOTUSBlog
Fine: $27,500 / per expletive
FCC definition of profanity:
Profane language includes those words that are so highly offensive that their mere utterance in the context presented may, in legal terms, amount to a nuisance. In its Golden Globe Awards Order the FCC warned broadcasters that, depending on the context, it would consider the F-Word and those words (or variants thereof) that are as highly offensive as the F-Word to be profane language that cannot be broadcast between 6 a.m. and 10 p.m.
Uh-Oh you and your company did something naughty. In your advertisement someone uttered a curse word, someone showed too much skin, or someone was offended by the nature of your ad, and the FCC has relayed this information to you in the form of a formal notice which includes a fine, what happens next?
Fine: $550,000 for nipple exposure for 9/16 of 1 second, during the Super Bowl.
Nudity is the most hotly debated marketing topic (no pun intended). The debate mostly centers around the definition of nudity, this is an issue that marketers and broadcasters alike constantly push to the limits of the law. This is how the FCC regs address the issue.
Obscene speech is not protected by the First Amendment and broadcasters are prohibited, by statute and regulation, from airing obscene programming at any time. According to the U.S. Supreme Court, to be obscene, material must meet a three-prong test: (1) an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest (i.e., material having a tendency to excite lustful thoughts); (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. The Supreme Court has indicated that this test is designed to cover hard-core pornography. - FCC.gov
Issues arise when the FCC claims the advertisement contains nudity while advertisers maintain that the depiction was merely cleavage. Attorneys for ABC advised the network of a 75% rule, meaning if more than 75% of a breast or buttocks were exposed that would be a violation. However there are no such percentages in the regulations. In fact the regulations are quite vague, they merely adopt the Supreme Court standard for obscentity listed above, and indecent as listed in the box to the right.
What about transgendered individuals? What if Bruce, or Catlin Jenner, who has under gone breast implantation surgery but has not had genitalia-altering surgery, exposes her or his chest in a television ad. Does this violate the FCC rules? Does it matter that he considers himself a woman? Does it depend on whether he is deemed to be 'medically' or psychologically a woman? Or is the confusing and outrageous nature sufficient to deem this depiction indecent? What if instead it is a man who is not trans-gendering but has just chosen to have breast implants? What about large men who's pectoral area resembles a woman's breast?
These and other bizarre gender-bending issues will likely be addressed in the future.
Fine: ?,
Not permissible on broadcast television
Material is indecent if, in context, it depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium. In each case, the FCC must determine whether the material describes or depicts sexual or excretory organs or activities and, if so, whether the material is patently offensive.
In our assessment of whether material is patently offensive, context is critical. The FCC looks at three primary factors when analyzing broadcast material:
(1) whether the description or depiction is explicit or graphic;
(2) whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs; and
(3) whether the material appears to pander or is used to titillate or shock. No single factor is determinative.
The FCC weighs and balances these factors because each case presents its own mix of these, and possibly other factors as well.
