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

[David Farber <dave@farber.net>]

>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
>
>
>
>***********************************************************************
>
>
>
>
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