Federal Communications Commission

Washington DC 20554

May 18, 2000

> In Reply Refer to:

EB-00-IH-009

Benjamin Perez, Esq.

Abacus Communications Company

Suite 101

1801 Columbia Road, N.W.

Washington, D.C. 20009-2031

Dear Mr. Perez:

This letter provides a further response to your December 19, 1999,
Complaint against WJFK-FM, Manassas, Virginia, filed on behalf of Flora
Barton, Jose Armas and the National Latino Media Council.

By way of background, your Complaint raised three issues regarding a
segment of the "Don and Mike Show:" (1) that the broadcast involved a
telephone call aired without approval of the called party, in violation
of section 73.1206 of the Commission's rules; (2) that the broadcast
aired indecent language in violation of section 73.3999(b) of the
Commission's rules; and (3) that the broadcast included offensive
remarks regarding Hispanics that potentially fomented violence, contrary
to the public interest. In this latter regard, you request that the
Commission change its policy, described in the Complaint as being that
"only in the most blatant examples of incitement to riot will Commission
action be taken, and only after local courts have determined that an
instance of incitement has occurred."[^1]

[Broadcast of Telephone Call]{.underline}: We addressed this issue in a
Notice of Apparent Liability, *Infinity Broadcasting Corporation of
Washington, D.C.*, DA 00-516 (EB released March 8, 2000) (licensee
apparently liable for \$4,000), and a Forfeiture Order, *Infinity
Broadcasting Corporation of Washington, D.C.*, DA 00-1096 (EB released
May 17, 2000) (forfeiture of \$4,000 imposed).

[Indecency]{.underline}: The Commission has defined indecency as
material which, 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. *See, e.g.*,
*FCC v. Pacifica Foundation*, 438 U.S. 726 (1978). Applying this
definition and existing precedent, we find that the specific statements
referenced in your complaint as allegedly indecent do not constitute
actionable indecency. [^2] *See, e.g., Jacor Broadcasting of Tampa Bay,
Inc.*, 7 FCC Rcd 1826, 1827-28 (MMB 1992).

[Offensive Remarks]{.underline}: There is no doubt that many of the
remarks in the broadcast concerning Hispanics were highly offensive. As
you recognize in your Complaint, existing Commission policy would not
provide a basis for enforcement action. Rather, the Commission's policy
is not to take action against stations for the broadcast of material
that is offensive or potentially foments violence unless it rises to the
level of a "clear and present danger." *See, e.g., Cattle Country
Broadcasting,* 58 RR 2d at 1113 (allegations of speech constituting a
"clear and present danger" are "most appropriately performed by the
local authorities under the auspices of applicable state and federal
law"; in any event, renewal application not designated for hearing on
the basis of, among other things, derogatory remarks about Jews and
African-Americans where no demonstration that the speech was "directed
toward inciting or producing imminent lawless action and is likely to
produce such action"); *Turner Broadcasting Corp.,* 87 FCC 2d 476, 481
(1981) (similar result regarding derogatory remarks against Iranians
where no "clear and present danger" and no action taken by local law
enforcement authorities); *Anti-Defamation League of B'nai B'rith*, 4
FCC 2d 190, 192-93 (1966) ("highly offensive" anti-Semitic remarks not
basis for action against licensee's renewal application where no "clear
and present danger"). Applying these precedents to the facts of this
case as recited in your Complaint, we see no basis for enforcement
action. Moreover, we see no basis for recommending that the Commission
modify its long-standing policy in this area along the lines you have
suggested. The Commission's policy is based on First Amendment
considerations and section 326 of the Communications Act, which
prohibits the Commission from censoring broadcast material or
interfering with licensees' right of free speech. Given these
constitutional and statutory underpinnings, we do not believe that you
have stated an adequate basis for altering the balance of rights and
obligations reflected in the current policy.

Sincerely,

David H. Solomon

Chief, Enforcement Bureau

cc: H. Anthony Lehv, Esq.

Steven A. Hildebrandt, Esq.

[^1]: Complaint at 14, citing *Cattle Country Broadcasting*, 58 RR 2d
    1109 (1985).

[^2]: In the above-referenced *Notice of Apparent Liability*, we
    indicated that the indecency allegation "will be" addressed
    separately. This letter supersedes a letter on this subject
    inadvertently issued on February 23, 2000, by the Assistant Chief of
    the Investigations and Hearings Division.