It is a violation of federal law to air obscene programming at any time or indecent programming or profane language from 6 a.m. to 10 p.m. Congress has given the FCC the responsibility for administratively enforcing these laws. The FCC may revoke a station license, impose a monetary forfeiture or issue a warning if a station airs obscene, indecent or profane material.
Obscene material is not protected by the First Amendment to the Constitution and cannot be broadcast at any time. The Supreme Court has established that to be considered obscene, material must meet a three-pronged test.
The FCC 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." Indecent programming contains patently offensive sexual or excretory material that does not rise to the level of obscenity. The courts hold that indecent material is protected by the First Amendment and cannot be banned entirely. FCC rules prohibit indecent speech on broadcast radio and television between 6 a.m. and 10 p.m., when there is reasonable risk that children may be in the audience.
The FCC defines profanity as "including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance." Like indecency, profane speech is prohibited on broadcast radio and television between the hours of 6 a.m. and 10 p.m.
In making obscenity, indecency and profanity determinations, context is key. The FCC staff must analyze what was actually aired, the meaning of what was aired and the context in which it was aired. The FCC asks complainants to provide the following information:
Information regarding the details of what was actually said or depicted during the broadcast. The complainant may choose the format for providing the information, but it must be sufficiently detailed so that the FCC can determine the words or language used, or the images or scenes depicted during the broadcast and the context of those words, language, images or scenes. Subject matter alone is not sufficient to determine whether material is obscene, indecent or profane. For example, stating only that the objectionable programming "discussed sex" or had an "indecent discussion of sex" is not sufficient.
Congress has charged the Commission with enforcing the statutory prohibition against airing indecent programming "by means of radio communications." The Commission has historically interpreted this restriction to apply to radio and television broadcasters and has never extended it to cover cable or satellite operators. In addition, because cable and satellite services are subscription-based, viewers of these services have greater control over the programming content that comes into their homes, whereas broadcast content traditionally has been available to any member of the public with a radio or television. As noted above, however, obscene material is not protected by the First Amendment to the Constitution and is prohibited with respect to cable and satellite services, as well as radio and television broadcasters.
* Source FCC.gov
The airwaves are owned by the government, and licensed to stations and broadcasters.
This has been the model of radio since 1929.
Prior to 1929, anyone could obtain permission to manage a radio station by sending a postcard to the secretary of Commerce.
Herbert Hoover, prior to being president, served as secretary of commerce and was in charge of crafting legislation to prevent broadcasters from infringing upon each other's frequencies, which was supposedly a common occurrence.