A.  FCC Reverses Indecency Decisions

as Enforcement Policy Sparks Dissent

 

      “Indecent” broadcasting continued to be a hot button at the Federal Communications Commission, amidst controversial rulings that certain broadcasts are not actionably indecent under the law.  Although the Commission issued a number of enforcement orders against radio stations, its more important actions involved rescinding earlier sanctions or declining to find indecency in the first instance.  In one case, the Commission dismissed a complaint against a radio station for broadcasting one of George Carlin’s “seven dirty words” made famous in FCC v. Pacifica Foundation, 438 U.S. 726 (1978).  Against this backdrop, the political struggle over indecent broadcasting continued, with various commissioners calling for increased enforcement efforts.

 

Cases Closed

      The FCC began both 2002 and 2003 by reversing earlier determinations that certain programs were indecent.  In January 2002 the Enforcement Bureau reconsidered its initial ruling that the “radio edit” of the Eminem song “The Real Slim Shady” was indecent.  The Bureau originally found that the edited version of the song contained “unmistakable offensive sexual references.”  But it concluded upon reconsideration that the sexual references were “oblique” and not “expressed in terms sufficiently explicit or graphic enough to be found patently offensive.”  Considering the song in context, the Bureau concluded that the edited version did “not appear to pander to, or to be used to titillate or shock its audience.”  In the Matter of Citadel Broadcasting Company, DA 02-23 (Enforcement Bureau, rel. Jan. 8, 2002).

      The Enforcement Bureau reversed itself again in February 2003, finding that the song “Your Revolution” by rap artist Sarah Jones is not indecent.  In the Matter of The KBOO Foundation, File No. EB-00-IHD-0079  (Enforcement Bureau, rel. Feb. 20, 2003).  In May 2001 the Bureau had issued a $7,000 Notice of Apparent Liability to noncommercial radio station KBOO-FM for the broadcast of the song, which is a loose reworking of Gil Scott-Heron’s classic poem, “The Revolution Will Not Be Televised.” 

      “Your Revolution,” written and performed by award-winning poet and performance artist Sarah Jones, was intended “as a response to music on mainstream radio which often treats women as sex objects and play things.”  The song had been performed for junior high and high school students in educational programs coordinated through the New York City Board of Education. 

      Nevertheless, the Bureau initially concluded that “Your Revolution” was indecent because it contained “unmistakably patently offensive sexual references.”  It rejected KBOO’s arguments that the sexual references in “Your Revolution” must be evaluated as contemporary social commentary, noting that “the Commission has rejected an approach to indecency that would hold that material is not per se indecent if the material has merit.”  The KBOO Foundation, Notice of Apparent Liability, 16 FCC Rcd. 10731 (Enforcement Bureau, 2001).

      The Bureau reversed itself on reconsideration in light of the record developed in response to the Notice of Apparent Liability.  Describing the broadcast as “a very close case,” the reconsideration decision found that “on balance and in context, the sexual descriptions in the song are not sufficiently graphic to warrant sanction.”  The Bureau noted that Sarah Jones has been asked to perform “Your Revolution” at high school assemblies and concluded that the song did not violate contemporary community standards for the broadcast medium.

 

Justice Delayed . . .

      Despite the favorable outcome, the KBOO case illustrates the serious flaws in the FCC’s procedure for assessing indecency forfeitures.  In the end, KBOO was spared from having to pay a $7,000 fine, but Sarah Jones’s “Your Revolution” was effectively banned from radio for almost two years.  In any other medium, such an unreviewable censorship order would be plainly unconstitutional.  See, e.g., Freedman v. Maryland, 380 U.S. 51 (1965) (striking down procedures for prior review of films).

      To address the impact of the FCC’s initial finding on her work, Sarah Jones filed a declaratory judgment action in federal district court seeking a determination that the work is not indecent and that the FCC’s decision violated her rights under the First and Fifth amendments.  However, the court dismissed the action, finding that the Bureau decision was not “final agency action” and that any appeal from a final action must be brought in the court of appeals. 

      The court suggested that Ms. Jones should ask the FCC to issue a declaratory ruling if she was concerned about delay in obtaining a final order.  Sarah Jones v. FCC, No. 02 CIV. 693 (S.D.N.Y. Sept. 4, 2002).  On Oct. 2, 2002, Ms. Jones filed such a declaratory ruling request, but it was dismissed as moot in the Bureau’s reconsideration order.  The district court decision was appealed to the U.S. Court of Appeals for the Second Circuit, and was being briefed when the reconsideration decision was issued.

 

Other Indecency Decisions

      In other cases, the Commission avoided such delay by issuing initial decisions declining to find actionable indecency.  Such cases did not lack controversy, however.  In one instance, the Enforcement Bureau concluded that a Buffalo radio station did not violate the indecency standard when its morning DJs invited listeners to call the station to talk about which National Hockey League teams they would like to “piss on.”  The discussion arose from the station’s distribution to bars and restaurants of urinal splash guards decorated with emblems of various NHL teams. 

      The Commission found that the hosts’ use of the word “piss” in conjunction with the phrases “pissed at” and “pissed off” is “clearly not indecent” since both phrases “are commonly used slang terms indicating or describing a sense of anger.”  To the extent the terms were used in connection with the station’s distribution of urinal splash guards, the Bureau found the usage “was not so graphic or explicit to be actionable.”  In the Matter of Entercom Buffalo License, LLC, 17 FCC Rcd. 11,997 (Enforcement Bureau, 2002). 

      The decision was unremarkable, save for the fact that the Bureau approved the on-air use of one of the seven words that George Carlin said could “never, ever be used on the radio” because doing so would “curve your spine, grow hair on your hands and maybe even bring us, God help us, peace without honor.”  Pacifica, 438 U.S. at 751 (Appendix to Opinion of the Court) (reproducing George Carlin monologue “Filthy Words”). 

      In another case, the Commission staff dismissed a complaint against the ABC television series “Philly.”  A complaint had been filed over a line in one episode in which a character said: “There’s no way I’m gonna stand up in open court with my dick in my hand while your [client] walks out the door!”  The Enforcement Bureau dismissed the complaint, however, finding that the language used “may be offensive, but it does not describe sexual or excretory organs or activities in explicit or graphic terms such that it would fall within the definition of indecency.”  Letter from Charles W. Kelley, Chief, Investigations and Hearing Division, to WGNO-TV (June 28, 2002). 

      Typically such letter dismissals are not publicly released, but this one was made available by Commissioner Michael Copps, who objected to the dismissal.  In a public statement, Commissioner Copps wrote that “some terms are in themselves indecent,” and that “[n]ot so many years ago, the Commission thought so too.”  He added that “we seem to be in a broadcast and cable race to the bottom.  I am beginning to wonder if there even is a bottom.”  Statement of Commissioner Michael J. Copps on Enforcement Bureau Dismissal of Complaints Regarding Broadcast of “Philly” (June 28, 2002).

      The dismissal of the “Philly” complaint illustrates that virtually all indecency enforcement actions have been directed toward radio stations and not television.  In this respect, the Commission in 2002 followed past practices by issuing (and/or reaffirming) a number of Notices of Apparent Liability to radio stations for indecent broadcasts.  These enforcement actions were like most previous sanctions – imposing fines on radio stations for crude, sexually oriented songs and banter. 

      See, e.g., In the Matter of Entercom Seattle License, LLC, DA 02-208 (Enforcement Bureau, rel. Jan. 28, 2002) (imposing $14,000 forfeiture); In the Matter of Emmis Radio License Corp., DA 02-677 (Enforcement Bureau, rel. March 21, 2002) (imposing $21,000 forfeiture); In the Matter of GA-MEX Broadcasting, Inc., DA 02-996 (Enforcement Bureau, rel. May 1, 2002) (imposing $7,000 forfeiture); In the Matter of Infinity Broadcasting Operations, Inc., DA 02-1336 (Enforcement Bureau, rel. June 7, 2002) (imposing $21,000 forfeiture); In the Matter of Emmis Radio License Corp., DA 02-1502 (Enforcement Bureau, rel. June 28, 2002) (imposing $7,000 forfeiture); In the Matter of Rubber City Radio Group, DA 02-1887 (Enforcement Bureau, rel. Aug. 2, 2002) (imposing $7,000 forfeiture); In the Matter of WLDI, Inc., DA 02-1888 (Enforcement Bureau, rel. Aug. 2, 2002) (affirming $16,800 forfeiture); In the Matter of Emmis Radio License Corp., DA 02-1883 (Enforcement Bureau, rel. Aug. 2, 2002) (imposing $7,000 forfeiture); In the Matter of Edmund Dinis, DA 02-3448 (Enforcement Bureau, rel. Dec. 12, 2002) (imposing $22,400 forfeiture).

 

Continuing Controversies

      Although the Commission has not taken disciplinary action, one of the more prominent allegations of indecent broadcasting occurred in August 2002, when a couple purportedly engaged in sexual intercourse in a vestibule of St. Patrick’s Cathedral in New York.  The encounter was prompted by a contest on Infinity Radio’s “Opie and Anthony Show” called “Sex for Sam,” in which contestants were encouraged to have sex in public places.  The winners were to be awarded a trip to a music festival in Boston. 

      A non-graphic account of the St. Patrick’s incident was broadcast on Aug. 15, 2002 over station WNEW-FM in New York.  The Catholic League for Religious and Civil Rights filed a complaint, and although the broadcast contained no actual descriptions of sexual activity, Commissioner Copps called on the Commission to “consider the strongest enforcement action possible against the station, up to and including revocation of the station’s license.”  FCC News Release, Statement of Commissioner Michael J. Copps on Complaints Received Regarding Radio Broadcast of Sex Act in St. Patrick’s Cathedral (Aug. 19, 2002). 

      The FCC issued a letter on Aug. 22 directing Infinity Broadcasting to give details about the broadcast and to provide supporting documentation.  It set forth nine detailed questions, and it instructed the licensee to support its responses “with a sworn attestation, signed by an authorized officer of Infinity.”  In particular, it directed Infinity to “[i]dentify each employee, agent, officer or director of the station, the licensee and the licensee’s corporate parents and affiliates who was responsible for the concept of the contest and its subsequent broadcast, or who was aware of the contest and the broadcast prior to the broadcast.”  Letter from Charles W. Kelley, Chief, Investigations and Hearing Division, to Infinity Broadcast Operations, Inc. (Aug. 22, 2002).  That same day, Infinity Broadcasting cancelled the “Opie and Anthony Show.”

      As a general matter, Commissioner Copps has criticized the Commission for its record on indecency enforcement, and has called for more vigorous action.  In one speech, he noted that of the nearly 500 complaints received by the Enforcement Bureau in 2002, “83 percent were either dismissed or denied, one company paid a fine, and the rest are pending or otherwise in regulatory limbo.”  He also said that the Commission should consider changing its definition to better “comport with Americans’ view of what is indecent.”  As part of this review, he suggested including violence within the definition of indecency.  Remarks of Commissioner Michael J. Copps to the NATPE 2003 Family Programming Forum (Jan. 22, 2003). 

      Commissioner Kevin Martin has also expressed concern about programming content, and has called on broadcasting and cable television companies to consider voluntarily adopting a new “family viewing hour” and “family friendly” programming tiers.  Opening Remarks of Commissioner Kevin J. Martin to the NATPE 2003 Family Programming Forum (Jan. 22, 2003). 

      The Commission’s official and unofficial actions, as well as the strongly held views of individual commissioners, ensure that indecency issues will continue as a prominent part of the regulatory landscape.

 

--Robert Corn-Revere