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Oregon radio station challenges FCC indecency citation

By Phillip Taylor
Special to freedomforum.org

06.27.01

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Justin Miller, left, underwriting coordinator, and Chris Merrick, right, station manager, are shown Jan. 5, 2001, at commercial-free KBOO-FM in Portland, Ore.

When the Federal Communications Commission sent warnings to KBOO/90.7 FM last January that the station had aired several indecent songs last summer, Chris Merrick said he thought that a short note explaining the content of the songs would end the agency's investigation.

At various times over the past years, Merrick, the Portland, Ore., station's program director, had met with FCC regulators, so he thought he understood what they considered indecent or obscene.

But Merrick said he was shocked when the FCC's Enforcement Bureau on May 17 dismissed most of the complaints but cited KBOO for airing "Your Revolution." The song, the FCC ruled, contained "unmistakable patently offensive sexual references" that "appear to be designed to pander and shock."

The agency issued a $7,000 fine to KBOO, a community station staffed by volunteers and bolstered by grants and listener donations.

Merrick said that "Your Revolution" used lyrics from popular hip-hop tunes in an attempt to parody what singer Sarah Jones considered to be music degrading to women.

"So the original lyrics stand as not indecent? One of the annoying things is, this places us in the same category as shock jocks and those 'morning zoo' guys," he said in a telephone interview. "We are the last people in the world that should be accused of pandering."

News of the fine comes in the wake of an FCC report clarifying how the agency determines when a radio or television program is too graphic for broadcast. Recently, the agency fined radio stations in Madison, Wis., and Colorado Springs, Colo., for playing versions of rapper Eminem's "The Real Slim Shady."

Current law provides the FCC with the power to regulate on-air content. The Supreme Court upheld that power in 1978.

The court, in FCC v. Pacifica, said that while the First Amendment protects indecent speech, the commission can regulate the airwaves with only a few restrictions. In Pacifica, the court ruled in the FCC's favor, allowing it to curb utterances of the famous "seven dirty words" that can't be said on air.

The current ban on indecent broadcasts applies strictly to broadcasts between 6 a.m. and 10 p.m., when children are most likely to be listening to the radio or watching television.

The commission's new guidelines come seven years after a court settlement with Evergreen Media Corp., which contested an FCC indecency citation partly because of confusion about the agency's enforcement policies.

The guidelines explain that for the FCC to find a broadcast "indecent," the material must fall within the scope of the commission's definition: "Material 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."

But the commission noted that the agency applies community standards based on the average listener and not on the sensibilities of the complainant. The agency also doesn't initiate investigations without first getting a specific complaint about a station's programming.

Merrick said KBOO volunteers learned last January about a possible violation for a broadcast last summer. The FCC gave the station 30 days to respond to charges that it had played a handful of songs, including "Your Revolution," with indecent or offensive lyrics.

"Our response was that none of the material was indecent," said Merrick, whose station has filed an appeal of the fine to the full commission.

Peter Hart, a media analyst with Fair and Accuracy in Reporting, says the FCC has unconstitutionally taken on the role of censor. He says the commission has a legitimate charge to monitor ownership of broadcast stations but not the content of their broadcasts.

"But why the move to determine whether artistic content is obscene or indecent?" Hart asked. "These are things that have a whole host of problems attached to (them)."

Hart says the FCC's attempt to clarify indecency over the airwaves has instead created further static.

"You don't walk away with a clear understanding of what they go after," Hart said in a telephone interview. "A lot of stations will err on the side of being overcautious."

Officials with the FCC Enforcement Bureau didn't return calls for comment about the fine.

Merrick promised a court battle if the full commission failed to drop the citation. The courts, he says, might take the station's First Amendment free-speech rights into consideration.

But in the meantime, Merrick says, the fine has had a chilling effect on the station. He's considering moving the station's popular hip-hop show from its 7 to 9 p.m. time slot to later hours and urging volunteer disc jockeys to think twice before playing potentially offensive music or programs.

"Songs that we were playing six months ago," he said, "might be too dangerous to play now."

Phillip Taylor, a writer based in Newport News, Va., is a free-lance correspondent for freedomforum.org.

Update

Songwriter sues FCC over indecency fine
Poet says agency violated her free-speech rights by penalizing Oregon radio station for playing her song.  01.30.02

Related

FCC drops fine over Eminem song
Agency says it lifted $7,000 penalty against Colorado radio station after deciding edited version of 'Real Slim Shady' didn't violate indecency guidelines.  01.09.02

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