FC: FCC's Tristani gains ally in campaign against radio "indecency"

[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

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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



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