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FCC warning could chill free speech on the radio waves

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From the Summer 2003 issue of The News Media & The Law, page 40.

From the Summer 2003 issue of The News Media & The Law, page 40.

By Katrina Hull

A raunchy radio broadcast in Detroit has sparked a reaction from federal regulators and lawmakers that one broadcasting giant likens to threatening radio stations with the death penalty.

The Federal Communications Commission has threatened license revocation hearings after a single indecent broadcast — a move that would abandon several decades of fines only for broadcasts where content is deemed unacceptable. A bill before the Senate would make the revocation proceedings mandatory upon a finding of indecency and increase the maximum indecency and obscenity fines nearly tenfold.

Counsel for New York-based Infinity Broadcasting Operations, Inc., say the real threat is to the First Amendment. Infinity owns Detroit radio station WKRK-FM, accused of broadcasting indecent material during a January 2002 segment of the “Deminski & Doyle Show.” Nine callers responded to a request for “those weird funky uh made up sex techniques.” Of the nine, three described combinations of sex acts and bowel movements, and three described sex acts that involved punching or “smacking” women.

The FCC on March 28 called the broadcast a “serious” violation of indecency standards in a “Notice of Apparent Liability” issued to Infinity. The federal regulators also imposed the maximum fine of $27,500, and issued a warning that similar broadcasts in the future could be subject to multiple fines for each indecent statement and also subject the station to license revocation proceedings.

Infinity’s June 4 response to the notice challenges the constitutionality of the fine imposed and the warning of stricter sanctions.

“On its face, the scheme fails because the establishment of a new indecency standard — ‘serious’ violations — tied to license revocation requires that broadcasters divine meaning from the subjective, undefined word ‘serious.’ This is an impossible task that ultimately will lead broadcasters to refrain from exercising their free-speech rights rather than risk losing their licenses,” Infinity attorneys wrote in the company’s response.

Indecency standards and convergence

The FCC defines indecency as language that depicts or describes sexual or excretory organs or activities in language that is “patently offensive” based on community standards. Unlike obscene speech, which has no First Amendment protection, indecent speech has limited protections. The U.S. Supreme Court upheld Congress’ authority to regulate indecent speech in FCC v. Pacifica Foundation. By law, indecent speech is prohibited from 6 a.m. to 10 p.m. — the times when children are most likely to listen.

Infinity did not fight the finding that the show, broadcast between 4:30 and 5 p.m., was indecent under the law’s current definition. Instead, the company’s reply focused on the indecency standard itself as “unconstitutionally vague and overbroad.”

Infinity, which owns 185 stations in 40 U.S. markets, argues that the current indecency standard is nearly identical to the indecency standard for the Internet that the Supreme Court struck down in 1997 in Reno v. ACLU. According to Infinity, the only difference between the two standards is the phrase “for the broadcast medium.”

In Reno, the Court distinguished broadcasting from the Internet and said the unique qualities of the broadcast media justified extensive regulation. Those qualities include spectrum scarcity, the invasive nature of broadcast and a history of government regulation.

Infinity argues that in the last six years since Reno the rationales for treating the Internet differently from broadcast media have disappeared as technology has advanced.

The company says satellite radio, direct broadcast satellite and the Internet have eliminated the argument of spectrum scarcity.

“That rationale today has lost relevance, given the tremendous increase in the number of alternative media sources that a speaker can access compared to the number available at broadcasting’s inception,” Infinity wrote in its response to the FCC.

Technological advances also mean “broadcasting can no longer be deemed an invasive or uniquely pervasive medium — especially in light of the nearly ubiquitous role both cable television and the Internet play in the lives of millions of Americans,” Infinity wrote.

Infinity calls the history of regulation “immaterial in the modern era of media convergence, where radio and television broadcast stations increasingly offer their programming over the Internet.”

FCC authority is nothing new

The FCC always has had the power to revoke a station’s license, but according to Infinity, the commission has used the power for limited offenses that “strike at the heart of the regulatory scheme.” Those offenses include deceit or deliberate misrepresentation to the FCC; fraudulent practices or felony convictions; license abandonment or failure to respond to an FCC inquiry; and failure to obtain FCC authorization when it is required.

“By contrast, revocation is particularly ill-suited for use as a routine enforcement tool in a sensitive area involving protected speech,” Infinity said.

The commission’s notice of liability to Infinity for indecency is the first for 2003, though Lisa Fowlkes, an attorney in the FCC’s enforcement bureau, said many of this year’s indecency complaints are still pending. She said the number of complaints varies from month to month, though the commission received more than 200 complaints in June.

Since 2000, the FCC has issued only 20 notices of liability to stations for indecency violations. That is an average of about six stations per year out of more than 13,000 stations nationwide, and, according to Infinity’s calculations, only three hours of indecent speech out of 58 million hours broadcast yearly is “hardly an avalanche of unsuitable broadcast material.”

But perhaps a snowflake is enough for Sen. John McCain (R-Ariz.). McCain is chairman of the Senate Commerce Committee. He urged the committee’s endorsement on June 26 of a proposal that would increase the maximum fine from $27,500 to $250,000 for a single violation and $2.5 million for continuing violations. The proposal came as an amendment to a spending bill for the FCC. In late July, the bill was awaiting action by the full Senate. (S. 1264)

The amendment also would include mandatory license revocation proceedings after an indecency finding and multiple fines for each indecent or obscene statement, rather than a single fine for the broadcast, according to information from Sen. Fritz Hollings’ office. The Democrat from South Carolina sponsored the amendment as an “important first step” in preventing fines from becoming “merely a cost of doing business for large billion dollar broadcast companies,” Hollings’ office said.

The industry should have a chance to comment on the impact of legislation before it would take effect. That is not true of the FCC’s warning to all broadcasters in its notice of liability to Infinity.

The commissioners wrote: “We take this opportunity to note that given the egregiousness of this violation, additional serious violations by Infinity may well lead to the initiation of a revocation proceeding. Moreover, other broadcasters are on notice that the Commission will not hesitate to adopt strong enforcement actions in the future, including the potential initiation of revocation proceedings.”

Infinity was still awaiting a response in late July from the FCC, which could cancel the fine or let it stand. If the fine against Infinity stands, the company could pay it and challenge its validity in court, or not pay it and challenge its validity after the government pursues a debt collection action.

Meanwhile, another complaint is pending against Infinity station WNEW in New York for an August 2002 broadcast of an alleged cell phone call of a man and woman having sex in New York’s St. Patrick’s Cathedral. Although the pending complaint is likely not subject to the newly threatened sanctions, the implications of the FCC’s warning are unknown.

The commission’s indecency rules require the consideration of a broadcast’s context. Yet, the commission has never distinguished news broadcasts from any other for potential liability for indecency.

In 1989, National Public Radio broadcast a tape-recorded telephone conversation between New York mobster John Gotti and an associate. The expletive-laced conversation generated an indecency complaint with the FCC. The commission eventually determined the broadcast was not indecent based on its context as a nationwide news story about organized crime. Still, a similar broadcast today could carry the risk to a station of having its license pulled under the newly announced standard.

In its response to its FCC fine, Infinity warned that “under the Commission’s new enforcement scheme, however, a broadcaster, especially one with limited resources, is much more likely to choose not to air programming that addresses sex or violence at all — even in a clinical manner or to address a topic of great societal importance — for fear of suffering a far greater loss than it faced in the past, namely, its livelihood, its license.”