FOR IMMEDIATE RELEASE Contact: Paul Gallant

July 2, 2001 (202) 418-2300

**PRESS STATEMENT OF COMMISSIONER GLORIA TRISTANI**

***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]{.underline}**

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[^1] ^1^ 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[^2] ^2^

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.[^3]3

**[Discussion]{.underline}**

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[^4] ^4^

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[^5] ^5^

The Court has identified "perverted sexual acts" as a plain example of
patently offensive material[^6] ^6^

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[^7] ^7^ 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[^8] ^8^ 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.

\- FCC -

[^1]: ^.^1 *In the Matter of Emmis FM License Corp. of Chicago, Licensee
    of Station WKQX (FM), Chicago, Illinois*, Notice of Apparent
    Liability for Forfeiture (File Nos. EB-00-IH-0401)(rel. Apr. 6,
    2001).

[^2]: ^.^2 Letter from David Edward Smith to Linda Blair, Mass Media
    Bur., F.C.C. (Feb. 23, 2000).

[^3]: ^"^3 *Id.*

[^4]: ^.^4 18 U.S.C. Sec. 1464; Communications Act , Sec. 503(b)(1)(D).

[^5]: ^.^5 *FCC v. Pacifica Foundation*, 438 U.S. 726, 732 (1978).

[^6]: ^.^6 *Miller v. California*, 413 U.S. 15, 25 (1975).

[^7]: ^.^7 *In the Matter of Tempe Radio, Inc. (KUPD(FM))*, 12 FCC Rcd
    21828 (File No. 1800C1-JEE)(rel. Dec. 17, 1997).

[^8]: ^,^8 720 Ill. Comp. Stat.,12-14.1 (2001)("The accused commits
    predatory criminal sexual assault of a child if ... (1) the accused
    was 17 years or age or over and commits an act of sexual penetration
    with a victim who was under 13 years of age when the act was
    committed.")