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IP: FCC's Tristani gains ally in campaign against radio "indecency"
From: David Farber <dave () farber net>
Date: Sat, 07 Jul 2001 14:19:30 -0400
Date: Sat, 07 Jul 2001 12:50:36 -0400 To: politech () politechbot com From: Declan McCullagh <declan () well com> FCC commissioner Gloria Tristani has been waging a one-woman campaign against so-called "indecency" on the airwaves. Until now, that is. This week FCC commissioner Michael Copps, in what appears to be the Bush appointee's first public statement since taking the job this spring, joined Tristani. That means two of the FCC's three commissioners -- almost a majority -- are pressing for a government crackdown on radio and TV shows. Read their statements below. Michael Copps home page: http://www.fcc.gov/commishcopps.html Previous Tristani statements: Bare skin on TV must be banned by FCC, says Gloria Tristani http://www.politechbot.com/p-02199.html June 29, 2001 http://www.politechbot.com/p-02049.html Prudish FCC commissioner plans to run for New Mexico governor May 21, 2001 http://www.politechbot.com/p-01864.html FCC's Tristani complains about yet another "indecent" broadcast March 29, 2001 http://www.politechbot.com/p-01781.html Prudish FCC commissioner insists "piss" should be punished March 2, 2001 -Declan *********************************************************************** Commissioner Tristani and Copps Indecency Case Statements (2) · Date: Mon, 02 Jul 2001 14:23:02 -0400 · To: undisclosed-recipients:; · Subject: Commissioner Tristani and Copps Indecency Case Statements (2) · From: "David Fiske" <DFISKE () fcc gov> The following are statements by FCC Commissioners Gloria Tristani and Michael Copps regarding an FCC indecency case from Burlington, N.C., followed by the Enforcement Bureau letter in the case. Statements on a case from Chicago Illinois were contained in an earlier email. (1) PRESS STATEMENT OF COMMISSIONER GLORIA TRISTANI For Immediate Release July 2, 2001 Contact: Paul Gallant 202-418-2300 Re: Enforcement Bureau Letter Ruling on Indecency Complaint Against WDGC(FM), Durham, North Carolina The FCC's Enforcement Bureau has issued a letter dismissing a complaint from Joyce Moller of Burlington, North Carolina. Ms. Moller had filed a complaint with the Commission regarding the broadcast of potentially indecent material by WDCG (FM). Ms. Moller's complaint says that at 8 a.m. on February 5, 2001, hosts of the *Bob and Madison Showgram* on WDCG were taking calls from people that had never masturbated (shaking hands with the queen or something to that effect). * [T]hey told the listener in question that they would give them ten minutes to put the phone down and try it. If they did they would give them 'a bunch of prizes.' Ms. Moller went on to say: I couldn't believe that it was actually on the radio and once that settled in, I couldn't believe that they would air this trash at 8 am! Parents can't and shouldn't have to monitor everything their children listen to on the radio. Actually, Ms. Moller's observation about the need to protect children is precisely why the Supreme Court has upheld the FCC's authority to limit indecent broadcasts. In FCC v. Pacifica Foundation, the Court said indecency regulation is appropriate because parents need help in protecting their children from potentially harmful broadcast material and because *broadcasting is uniquely accessible to children.*1 The statute passed by Congress that gives the FCC authority to regulate indecent broadcasts says: *Whoever utters obscene, indecent, or profane language by means of radio communications shall be fined not more than $10,000 or imprisoned not more than two years, or both.*2 It is well established that the context is essential in determining whether a particular broadcast is indecent.3 Of the three factors recently identified by the Commission as that establish context, two seem particularly relevant here: (1) whether the material appears to pander or is used to titillate; and (2) whether the material dwells on the sexual or excretory activity.4 First, Ms. Moller explains that the on air personality used a slang term (*shaking hands with the queen*) for masturbation. Ms. Moller also stated that the on air personalities offered prizes to a caller who would masturbate during the program. These two facts suggest that this discussion about masturbation was not a bona fide news cast but a conversation intended to titillate and pander. Second, as to whether the material dwelled on the discussion of sexual activity, Ms. Moller's complaint indicates that this segment of the program apparently lasted for at least 10 minutes. This implies something much closer to a persistent focus than a fleeting reference. Given this, Ms. Moller's complaint deserved a careful investigation rather than the summary dismissal it received. At the very least, the Bureau should have contacted the station to request a tape or transcript of this program. As I suggest in a separate Press Statement, I believe the Bureau also should contact the complainant where it appears reasonably likely that additional *context* would result in a finding that our indecency ban has been violated.5 Such follow up, had it occurred in this case, might well have led to the finding that WDCG violated our broadcast indecency limitations. Without a change in the Commission's process for enforcing the broadcast indecency regulations, far too many complaints will be dismissed for *lack of context* when all that is required for reasoned decisionmaking is a minimal amount of follow up. (2) STATEMENT OF COMMISSIONER MICHAEL J. COPPS For Immediate Release July 2, 2001 Contact: Susanna Zwerling (202) 418-2000 In order to protect children from indecent programming, Congress passed laws limiting the broadcast of *obscene, indecent or profane* language and charged the FCC with the enforcement of these laws. As an FCC Commissioner, I have a responsibility to ensure that the indecency laws of the United States are being enforced. I take this responsibility with the utmost seriousness. I want to take the opportunity presented by these decisions to express some thoughts on the Commission's enforcement of the indecency laws. As a parent, I am concerned about what seems to be an increasing amount of sexually explicit and profane programming on the airwaves and the potentially detrimental effects of this programming on our children. Our nation has enacted laws * Constitutionally sanctioned laws * to protect young people from these excesses. One of the complaints dismissed today involves an allegation that, during a morning radio program, the twenty-seven-year-old host discussed * perhaps even joked about * having had sexual relations with a nine-year-old child. This sort of content is at least offensive to the listening public, if not indecent. It is government's responsibility * and more specifically that of the FCC * to ensure that indecent programming is not broadcast when children are likely to be in the audience. The process by which the FCC has enforced these laws places an inordinate responsibility on the complaining citizen. It seems to me that when enforcing the indecency laws of the United States it is the Commission's responsibility to investigate complaints that the law has been violated, not the citizen's responsibility to prove the violations. Lack of information about what was said and when it was broadcast should not be allowed to derail our enforcement of the laws. If something is said on the public airwaves, a strong argument can be made that it should be part of the public record. I believe that most broadcasters already retain recordings of their broadcasts, for a variety of reasons. That strikes me as good management. Our indecency enforcement should not create a disincentive for broadcasters to do so. As a newly-confirmed Commissioner, I am interested in looking at how the Commission could encourage universal retention of recordings of broadcast programming to aid in its indecency enforcement. Going forward, I want to ensure that the Commission investigates rigorously the complaints filed by citizens. Americans have a right to expect their government to enforce the indecency laws of the United States. This will be an important priority for me as I begin my service at the Commission. (3) Enforcement Bureau Letter Ms. Joyce Moller Burlington, North Carolina Dear Ms. Moller: This is in response to your complaint against radio station WDCG (FM), Durham, North Carolina, for airing allegedly indecent material on February 5, 2001 at 8:00 a.m. during " The Bob and Madison Showgram." In support of your complaint, you submitted a general description of the programming broadcast. Further, you state that you submitted a complaint last year about the "mile high club" broadcast. Based on our research of our Division's records, we have found that this earlier complaint was never received. Congress has given the Federal Communications Commission the responsibility for administratively enforcing 18 U.S.C. § 1464, which prohibits the broadcast of obscene and indecent programs. 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; (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. See Miller v. California, 413 U.S. 15 (1973). Upon review of your abbreviated description of what you heard, we cannot determine that the elements of the aforementioned three-prong test have been satisfied to meet the definition of obscenity. As to the February 5, 2001 complaint, we understand that you are offended by the programming described, however, it does not appear that we have any basis for action at this time. The Commission has defined indecency as language 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. Industry Guidance On the Commission's Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, FCC 01-90 (Apr. 6, 2001). Although we understand that you find the programming offensive, the material as you describe it, is not sufficiently explicit to conclude that it is patently offensive so as to constitute indecency. We appreciate and recognize your concern over the possible adverse impact such programming may have on children. One of the most effective means to affect programming is to contact your station management and station advertisers to express your opinion. To assist you further, we include an information sheet which discusses the law with respect to indecent broadcasts and our enforcement procedures. Thank you for your interest in this matter. Sincerely, Charles W. Kelley Chief, Investigations and Hearings Division Enforcement Bureau Enclosure *********************************************************************** Commissioner Tristani and Copps Indecency Case Statements (1) · Date: Mon, 02 Jul 2001 14:22:17 -0400 · To: undisclosed-recipients:; · Subject: Commissioner Tristani and Copps Indecency Case Statements (1) · From: "David Fiske" <DFISKE () fcc gov> The following are press statements of FCC Commissioners Gloria Tristani and Michael Copps regarding an indecency complaint from Chicago, Illinois, followed by the Enforcement Bureau Letter in the case. Statements in a second case from North Carolina will follow in a separate email. (1) PRESS STATEMENT OF COMMISSIONER GLORIA TRISTANI For Immediate Release July 2, 2001 Contact: Paul Gallant 202-418-2300 Re: Enforcement Bureau Letter Ruling Regarding Indecency Complaints Against WKQX (FM), Chicago, Illinois The FCC's Enforcement Bureau has dismissed an indecency complaint filed by David E. Smith of Chicago, Illinois against WKQX (FM). Mr. Smith's complaint states that on February 23, 2000, WKQX broadcast discussion of sexual intercourse between a 27 year old man and a nine year old child. This complaint makes a strong case that WKQX violated the Commission's ban on indecent broadcasting. At a minimum, the Bureau should not have dismissed this complaint for lack of "context" without attempting to contact Mr. Smith to further develop the record. Background David Smith filed three complaints with the FCC's Enforcement Bureau describing a total of five separate instances of allegedly indecent broadcasting by WKQX (FM). According to Mr. Smith, all of these broadcasts on WKQX occurred in the course of "Mancow's Morning Madhouse" show hosted by Eric "Mancow" Muller. Two of the five incidents described Mr. Smith ultimately led the Enforcement Bureau to issue a Notice of Apparent Liability against WKQX. The Bureau dismissed the three remaining complaints because, in the Bureau's view, they did not constitute indecency violations on their face. Of the three complaints dismissed, one alleges that, between 7:50 and 8 in the morning: Mancow and his staff talked euphemistically and directly about the particulars of adult-child sexual intercourse. During this broadcast, Mancow sanctions statutory rape by claiming that at age 27, he had sex with a 9 year old. Mr. Smith said he wrote to the FCC because he believes "this type of material is indecent and extremely inappropriate for broadcast on the public's airwaves." Discussion The statute the FCC enforces provides: Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both. In FCC v. Pacifica Foundation, the U.S. Supreme Court approved the FCC's ban on broadcast material that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs at times of the day when there is a reasonable risk that children may be in the audience. The Court has identified "perverted sexual acts" as a plain example of patently offensive material. The Commission has previously fined a station for broadcasting material similar to the material described in Mr. Smith's complaint. In 1997, the Commission fined KUPD(FM) of Tempe, Arizona for a brief on-air joke about adult-child sexual intercourse. That case provided guidance to radio stations that discussing adult-child sexual intercourse in a humorous or pandering manner is actionably indecent. According to Mr. Smith's complaint, Mancow conducted a detailed discussion at approximately 8 a.m. of adult-child sexual intercourse and even claimed that, at age 27, he had had sex with a nine year old child. If ever there were a case for a per se violation of the indecency laws, this is it. Discussion of sexual intercourse between an adult and a child is clearly a "perverted sex act" within the Supreme Court's description of patently offensive material. Moreover, the sexual act that Mancow claims to have performed is actually illegal in Illinois, where this broadcast allegedly occurred. Even in the absence of any additional linguistic "context," the fact that the discussion of adult-child sexual intercourse was broadcast on a humor and entertainment radio program should be probative as to context. Thus there would seem to be little doubt that this discussion was not a bona fide newscast, but instead was a segment intended to pander or an attempt at raunchy humor. Given an opportunity to respond, the station did not deny that the broadcast occurred. In the absence of any countervailing evidence to Mr. Smith's complaint, and in view of the KUPD case, the information strongly suggests that WKQX violated the ban on indecent broadcasting when it aired the material described in Mr. Smith's complaint. Even if the Bureau believed that Mr. Smith's complaint lacked sufficient context to constitute an indecency violation, the Bureau should not have dismissed the complaint given the facts alleged. The Bureau took the correct first step when it sent a Letter of Inquiry to the station. The problem is that the investigation ended when the station failed to provide any evidence implicating itself. At that point, the Bureau easily could have contacted Mr. Smith to inquire whether he could provide any additional information regarding his complaint. Instead, the Bureau dismissed his complaint due to lack of "context." The Bureau's failure to contact Mr. Smith in this case highlights a serious problem with the Commission's indecency enforcement. When the Bureau sends Letters of Inquiry to stations regarding indecency complaints, many stations respond that they lack a tape or transcript of the alleged incident. Thus the Letter of Inquiry is the first and last step of most investigations. I believe more should be done. In instances where the Bureau believes there is a reasonable likelihood that additional information regarding "context" would lead to an indecency finding, the Bureau should contact the both the complainant and the station as a routine practice. Contacting both the station and the complainant should not impose unreasonable burdens on Commission staff, and obtaining additional information from complainants would undoubtedly result in more thorough records to evaluate indecency complaints. In sum, the Bureau's disinclination to seek information from complainants results in too many citizens' complaints to be dismissed for "lack of context." I would urge the Bureau to begin contacting both the broadcaster and the complainant whenever indecency investigations are conducted. This would permit the Commission to enforce Congress's anti-indecency statute far more effectively. (2) PRESSSTATEMENT OF COMMISSIONER MICHAEL J. COPPS For Immediate Release July 2, 2001 Contact: Susanna Zwerling 202-418-2000I In order to protect children from indecent programming, Congress passed laws limiting the broadcast of "obscene, indecent or profane" language and charged the FCC with the enforcement of these laws. As an FCC Commissioner, I have a responsibility to ensure that the indecency laws of the United States are being enforced. I take this responsibility with the utmost seriousness. I want to take the opportunity presented by these decisions to express some thoughts on the Commission's enforcement of the indecency laws. As a parent, I am concerned about what seems to be an increasing amount of sexually explicit and profane programming on the airwaves and the potentially detrimental effects of this programming on our children. Our nation has enacted laws - Constitutionally sanctioned laws - to protect young people from these excesses. One of the complaints dismissed today involves an allegation that, during a morning radio program, the twenty-seven-year-old host discussed - perhaps even joked about - having had sexual relations with a nine-year-old child. This sort of content is at least offensive to the listening public, if not indecent. It is government's responsibility - and more specifically that of the FCC - to ensure that indecent programming is not broadcast when children are likely to be in the audience. The process by which the FCC has enforced these laws places an inordinate responsibility on the complaining citizen. It seems to me that when enforcing the indecency laws of the United States it is the Commission's responsibility to investigate complaints that the law has been violated, not the citizen's responsibility to prove the violations. Lack of information about what was said and when it was broadcast should not be allowed to derail our enforcement of the laws. If something is said on the public airwaves, a strong argument can be made that it should be part of the public record. I believe that most broadcasters already retain recordings of their broadcasts, for a variety of reasons. That strikes me as good management. Our indecency enforcement should not create a disincentive for broadcasters to do so. As a newly-confirmed Commissioner, I am interested in looking at how the Commission could encourage universal retention of recordings of broadcast programming to aid in its indecency enforcement. Going forward, I want to ensure that the Commission investigates rigorously the complaints filed by citizens. Americans have a right to expect their government to enforce the indecency laws of the United States. This will be an important priority for me as I begin my service at the Commission. (3) Enforcement Bureau Letter; FEDERAL COMMUNICATIONS COMMISSION ENFORCEMENT BUREAU July 2, 2001 Mr. David Edward Smith Chicago, Illinois File No. EB-00-IH-0401 (JWS) WKQX(FM), Chicago, IL Facility ID # 19525 Dear Mr. Smith: By this letter, we dismiss three complaints against radio station WKQX(FM), Chicago, Illinois, all of which contended that the station aired indecent material during the "Mancow's Morning Madhouse" ("Mancow") program. The first complaint alleges that on February 23, 2000, the host Eric "Mancow" Muller and his staff talked euphemistically and directly about adult-child sexual intercourse and that Mr. Muller claimed that at age 27 he had had sex with a nine-year old. The second complaint claims that on May 22, 2000, Mr. Muller aired a caller who proclaimed that the show was the right place to find out if other males do what he does. The caller then explained that "I use my girlfriend's secretions" at which point he was cut off and asked to hold on. Approximately 30 minutes later, the conversation allegedly continued for another two minutes but only after the caller was warned more than once to substitute "feminine odor" for secretions. The third complaint alleges that on May 24, 2000, the Mancow program contained questions from a female air personality who asked a number of women "How do you feel about your vagina?" The complaint further contends that after the interview a song was played which repeated the phrase "dripping wet." Through a letter of inquiry, we submitted these complaints (along with certain others of your complaints) to the licensee for its comments. The licensee responded that it has neither a tape nor a transcript and cannot determine whether the alleged statements were made. The Commission has defined indecency as material, which, in context, depicts or describes sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the broadcast medium. In determining whether broadcast material is patently offensive we look to, among other things, the explicitness or graphic nature of the description of sexual or excretory organs or activities and whether the material dwells at length on such organs or activities. See Industry Guidance on the Commission's Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, FCC 01-90, released April 6, 2001. Subject matter alone does not render material indecent. See WPBN/WTOM License Subsidiary, Inc. (WPBN-TV and WTOM-TV), 15 FCC Rcd 1838 (2000); King Broadcasting Co. (KING-TV), 5 FCC Rcd 2971 (1990). Although the programming you describe was clearly offensive to you, we do not believe there is sufficient information for us to determine that it is indecent. The first complaint charges that a 10-minute segment of Mancow featured a discussion about adult-child sexual intercourse and included a claim by the program's host that he had sex with a child of nine. Upon review of your complaint, we have determined that we cannot conclude, based on the information you provided, that the Mancow discussion is indecent. In making indecency determinations, it is imperative that the Commission have sufficient context in terms of the words and language used. Although we understand that this discussion was offensive to you, the allegation that a station aired a discussion on adult-child sex or even that an announcer claimed to have had sex with a child, without more, is not sufficient to find that a station has broadcast indecent material under relevant Commission precedent. (See cases cited above). Although we have previously found apparently indecent a crude joke about adult-child sex, there is not sufficient context to ascertain whether the discussion was so explicit or graphic so as to rise to the level of being patently offensive. The second complaint focuses on a caller's girlfriend's "secretions." However, the information available reveals that the caller was cut off before it became apparent what "secretions" were involved and what they were used for. Thus, at that point, the only possible reference to a sexual organ or activity was so fleeting as to be virtually meaningless. Moreover, although it further appears that when the conversation resumed, some 30 minutes later, the "secretions" probably involved those emanating from the caller's girlfriend's sexual organ, there is nothing before us suggesting what, exactly, was discussed. We are therefore in no position to determine whether the material aired was patently offensive. The third complaint essentially has the same shortcomings as the second. While there is no question that a sexual organ was discussed, there is no way to know from the information available to us that the material did so in a patently offensive manner. Indeed, there is no way to tell what actually aired, other than the question posed. Moreover, while the song that followed the interview allegedly repeated the phrase, "dripping wet," we have no information upon which to base a reasoned decision that that portion of the material, much less the whole segment, contained patently offensive descriptions of sexual organs or activities. Based on the information available, we simply cannot tell whether "dripping wet" refers to the female sexual organ and, if so, does so in a patently offensive manner. Having concluded that the information now before us fails to show that indecent material was broadcast, we dismiss your complaints of February 23, May 22 and May 24, 2000. Your other complaints concerning Mancow will be addressed separately. Sincerely, Charles W. Kelley Chief, Investigations and Hearings Division Enforcement Bureau cc: John Fiorini, III, Esquire *********************************************************************** ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe, visit http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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