# FOR IMMEDIATE RELEASE:

# March 27, 2001

## PRESS STATEMENT OF COMMISSIONER GLORIA TRISTANI

### *Re: Enforcement Bureau Letter Ruling on WXQR (FM), Wilmington, North Carolina*

### *Indecency Complaint*

The FCC Enforcement Bureau has issued a letter dismissing an indecency
complaint filed by W.T. Schmid of Wilmington, N.C. Mr. Schmid's
complaint against WXQR FM arose from an alleged broadcast on a Sunday
afternoon that he heard in his car while traveling with his 13 year-old
daughter. He stated he heard the following: "So then I dropped my pants
and showed Stacy my penis. ... That was it. We were showing off our
genitalia."[^1] At that point Mr. Schmid turned the station off. He said
he later called the station and alleges he was told the language was
"medical" and "within FCC guidelines" and if he did not like it he,
"could turn off the channel." He also stated he was told the language
was part of a "promo" for the station's morning show that ran every 4-5
hours.

According to his complaint, he did not receive a promised return call
from the station's manager. Mr. Schmid believes the station will
continue to broadcast inappropriate content until the "FCC intervenes
and straightens them out." The Enforcement Bureau dismissed this
complaint because Mr. Schmid "did not provide sufficient context to
enable us to determine that the material is obscene or whether the
material meets the Commission's definition of indecency."[^2]

Mr. Schmid's complaint exemplifies the difficult responsibilities the
FCC shares with parents. While government has no place in regulating
meaningful discussion about sexuality or anatomy, it is the context of a
broadcast that best tells a listener whether a chosen theme is primarily
prurient or educational. Context has many facets. Context involves,
among other things, the nature of the medium (broadcasting), the nature
of the program (adult, sports, oldies music etc.), the time of broadcast
and, the linguistic context of the words.

In this complaint we simply do not have sufficient information to
determine whether the alleged promotion and/or language are indecent or
not. The repeated use of anatomical language in conjunction with
"showing off our genitalia" suggests the words were anatomical, but the
linguistic context was not. The Bureau once again dismissed a complaint
without seeking the information needed to answer the context question
and construed the facts alleged in the complaint in the light most
favorable to the broadcaster rather than the complainant*.* This
conflicts with well-settled principles of civil law where dismissal of
civil complaints is permissible only if "it is clear that no relief
could be granted under any set of facts that could be proved consistent
with the allegations."[^3]

Further development of the fact record would serve the broader purposes
of the indecency statute, and better accommodate the Supreme Court's
concern that citizens can rarely screen broadcast indecency due to its
unexpected appearance. By failing to seek additional facts from the
broadcaster, the Commission has failed to discharge its obligation to
protect children from indecent material on the public airwaves.
Accordingly, the better rule is for this agency to vigorously complete
the factual picture by obtaining information from the broadcaster. At a
minimum, parents should be entitled to notice and an opportunity to
amend a complaint to overcome any factual deficiency. This rule should
apply in every case, unless it is manifestly clear that no amendment can
cure the defect. The cure for a deficient record is to improve it rather
than turn a blind eye to our duty.

Unfortunately, this is not an isolated instance. The Commission appears
so averse to indecency cases, and has erected so many barriers to
complaints from members of the public, that indecency enforcement has
become virtually non-existent. It's time for the Commission to begin
taking indecency cases seriously again. It's our duty under the law,
and, more importantly, our duty to our children.

[^1]: *See Complaint Letter* at 1 (copy attached)

[^2]: *See Dismissal Letter Ruling* at 1.

[^3]: *Hishon v. King & Spalding*, 467 U.S. 69, 73 (1984); citing
    *Conley v. Gibson*, 355 U.S. 41, 45-46 (1957) discussing Federal
    Rule of Civil Procedure 12(b)(6)