FC: FCC's Tristani complains about yet another "indecent" broadcast

[Declan McCullagh <declan () well com>]

Gloria Tristani seems to be making a habit of disagreeing with every
decision the FCC makes to dismiss an "indecency" complaint against a
station. Note below she carefully doesn't say that WXQR's language was
"indecent," but she indicates she's leaning in that direction.

Remember the CDA included "indecency" restrictions, and its supporters
insisted for years that it would never apply to this kind of
language. Tristani, a fellow traveler, shows how wrong they were.

See also:
http://www.politechbot.com/cgi-bin/politech.cgi?name=tristani

http://www.fcc.gov/Speeches/Tristani/Statements/2001/stgt130_complaint.pdf
http://www.fcc.gov/Bureaus/Enforcement/Reports/2001/dismissal-ltr-wxqr.pdf

-Declan

*******

http://www.fcc.gov/Speeches/Tristani/Statements/2001/stgt130.html
   
                           FOR IMMEDIATE RELEASE
                               March 27, 2001
                                      
              PRESS STATEMENT OF COMMISSIONER GLORIA TRISTANI
   
    Re: Enforcement Bureau Letter Ruling on WXQR (FM), Wilmington, North
                        Carolina Indecency Complaint
   
   The FCC Enforcement Bureau has issued a letter dismissing an indecency
   complaint filed by W.T. Schmid of Wilmington, N.C. Mr. Schmid's
   complaint against WXQR FM arose from an alleged broadcast on a Sunday
   afternoon that he heard in his car while traveling with his 13
   year-old daughter. He stated he heard the following: "So then I
   dropped my pants and showed Stacy my penis. That was it. We were
   showing off our genitalia." (1)
   
   At that point Mr. Schmid turned the station off. He said he later
   called the station and alleges he was told the language was "medical"
   and "within FCC guidelines" and if he did not like it he, "could turn
   off the channel." He also stated he was told the language was part of
   a "promo" for the station's morning show that ran every 4-5 hours.
   
   According to his complaint, he did not receive a promised return call
   from the station's manager. Mr. Schmid believes the station will
   continue to broadcast inappropriate content until the "FCC intervenes
   and straightens them out." The Enforcement Bureau dismissed this
   complaint because Mr. Schmid "did not provide sufficient context to
   enable us to determine that the material is obscene or whether the
   material meets the Commission's definition of indecency." (2)
   
   Mr. Schmid's complaint exemplifies the difficult responsibilities the
   FCC shares with parents. While government has no place in regulating
   meaningful discussion about sexuality or anatomy, it is the context of
   a broadcast that best tells a listener whether a chosen theme is
   primarily prurient or educational. Context has many facets. Context
   involves, among other things, the nature of the medium (broadcasting),
   the nature of the program (adult, sports, oldies music etc.), the time
   of broadcast and, the linguistic context of the words.
   
   In this complaint we simply do not have sufficient information to
   determine whether the alleged promotion and/or language are indecent
   or not. The repeated use of anatomical language in conjunction with
   "showing off our genitalia" suggests the words were anatomical, but
   the linguistic context was not. The Bureau once again dismissed a
   complaint without seeking the information needed to answer the context
   question and construed the facts alleged in the complaint in the light
   most favorable to the broadcaster rather than the complainant. This
   conflicts with well-settled principles of civil law where dismissal of
   civil complaints is permissible only if "it is clear that no relief
   could be granted under any set of facts that could be proved
   consistent with the allegations." (3)
   
   Further development of the fact record would serve the broader
   purposes of the indecency statute, and better accommodate the Supreme
   Court's concern that citizens can rarely screen broadcast indecency
   due to its unexpected appearance. By failing to seek additional facts
   from the broadcaster, the Commission has failed to discharge its
   obligation to protect children from indecent material on the public
   airwaves. Accordingly, the better rule is for this agency to
   vigorously complete the factual picture by obtaining information from
   the broadcaster. At a minimum, parents should be entitled to notice
   and an opportunity to amend a complaint to overcome any factual
   deficiency. This rule should apply in every case, unless it is
   manifestly clear that no amendment can cure the defect. The cure for a
   deficient record is to improve it rather than turn a blind eye to our
   duty.
   
   Unfortunately, this is not an isolated instance. The Commission
   appears so averse to indecency cases, and has erected so many barriers
   to complaints from members of the public, that indecency enforcement
   has become virtually non-existent. It's time for the Commission to
   begin taking indecency cases seriously again. It's our duty under the
   law, and, more importantly, our duty to our children.
   ____________________________________________________
   
   1. See Complaint Letter at 1 (copy attached)
   
   2. See Dismissal Letter Ruling at 1.
   
   3. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); citing Conley v.
   Gibson, 355 U.S. 41, 45-46 (1957) discussing Federal Rule of Civil
   Procedure 12(b)(6)



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