FOR IMMEDIATE RELEASE	Contact:  William J. Friedman
February 13, 2001	(202) 418-2300
PRESS STATEMENT OF FCC COMMISSIONER GLORIA TRISTANI
Re:  Enforcement Bureau Letter Ruling on WRLR (FM), Homewood, Alabama 
Indecency Complaint
	The FCC Enforcement Bureau has issued a letter dismissing an indecency complaint filed 
by Angela F. Woods of Hueytown, Alabama.  Ms. Woods complaint against WRLR FM arose 
from words uttered during the Lex and Terry show and the radio personalities on-air conduct 
after she phoned in her complaint.   First, Ms. Woods reported the broadcast of the word pussy 
which she described as foul and obscene.  She also recited the date, the early morning time, 
the stations call letters and the title of the show.  She expressed her distress at use of such 
language on a station with a young audience.  But the alleged misconduct apparently did not 
stop there.  According to Ms. Woods, after receiving her phone call complaint the radio 
personalities verbally attacked her on the air.  They referred to her as a bitch and that she 
needed a stick up her ass.  After she arrived at work, her coworkers were listening to the same 
station and she heard the on-air personalities say they hope she has a wreck and gets killed on 
the way to work. 
The Bureau dismissed the complaint noting the series of remarks were certainly 
offensive, but are not indecent because they are not patently offensive as measured by 
contemporary community standards for the broadcast medium.   Based on the record before us, 
I cannot agree.  First, Ms. Woods made a prima facie case for indecency sufficient to survive 
dismissal.  Second, a broadcaster owes a duty to handle indecency complaints from citizens 
without engaging in over-the-air verbal attacks that include expressing a desire for the 
complainant to wreck her car and die.
A. Applicable Law
	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.  
This Commission has defined indecency as:
[l]anguage or 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.  
Among the factors that the Commission examines to determine whether material is patently 
offensive include the actual words or depictions in context to see if they are, for example, 
vulgar or shocking, and whether the material is dwelled upon or is isolated and fleeting.   
The Supreme Court has pointed out that what is "patently offensive":
[D]epends on context (the kind of program on which it appears), 
degree (not "an occasional expletive"), and time of broadcast (a 
"pig" is offensive in "the parlor" but not the "barnyard"). 
Thus, the context question focuses in the first instance on the type of program.  The degree 
of offensiveness requires the remarks be distinguished from an occasional expletive and the 
time of day is referenced primarily to draw attention to the fact that children may be listening.
Applying these objective standards to the facts alleged by Ms. Woods demonstrates: 1) 
the type of program was a regularly scheduled morning radio program obviously targeting 
listeners traveling to their morning destinations and was not an adult only program; 2) a vulgar 
reference to female genitalia was followed by a series of remarks that included a deliberate and 
unambiguous reference to the listeners excretory organ and violent penetration thereof by a 
foreign object; and, 3) the broadcast was made during the normal hours children are riding in 
cars on their way to school and adults are on their way to work.  These remarks were followed by 
a hope that Ms. Woods was killed on her way to work.
	The foregoing establishes that the series of remarks were not unrelated, targeted Ms. 
Woods personally, and thus should not be construed as isolated, fleeting or occasional.  
The timeline in Ms. Woods complaint suggests the radio personalities deliberated prior to 
calling her a bitch and making the stick up her ass comment.  These allegations state a prima 
facie case for indecency under the statute and our cases.
1.	The Personal Attack on Ms. Woods
I now turn to the alleged on-the-air, personal attack on Ms. Woods that amounted to a 
public wish that she be killed on her way to work.  While I acknowledge this personal attack 
does not fall readily within the definition of indecent, I note its utter impropriety and write to 
distinguish it from legitimate political speech that is surely entitled to protection.  I also note my 
belief that no broadcast license is awarded with the intent that it will become the vehicle for 
personal attacks on its listeners merely because they raise statutory compliance issues. 
First, demeaning personal attacks possess little political value.  Like fighting words, 
their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice 
Murphy when he said:
[S]uch utterances are no essential part of any exposition of ideas, 
and are of such slight social value as a step to truth that any benefit 
that may be derived from them is clearly outweighed by the social 
interest in order and morality. 
While one may register a public protest by placing a vulgar message on his jacket and, in so 
doing, expose unwilling viewers,  that does not mean that a broadcaster has an unqualified 
constitutional right to verbally attack a complaining listener.  While the broadcaster speech at 
issue here may be protected, it surely lies at the periphery of First Amendment concern. 
Second, a special factor recognized by the U.S. Supreme Court as justifying regulation of 
the broadcast media was its "invasive" nature.   Whatever proper limits exist on this agencys 
power to restrict a broadcaster from following an unwilling listener, I cannot sit mute while 
legitimate citizen concerns are dismissed with vulgar and profane attacks.  Permitting its 
employees to exploit the invasive nature of the broadcast medium to stalk or shadow its listeners 
in this manner is misconduct, if not actionable misconduct.  
	Finally, I point out that my concerns are shared by the Alabama legislature.  The State of 
Alabama has established the misdemeanor crime of Harassing Communications which 
provides:
A person commits the crime of harassing communications if, with intent to harass 
or alarm another person, he or she does any of the following:
a.	Communicates with a person, anonymously or otherwise, by 
telephone, telegraph, mail, or any other form of written or 
electronic communication, in a manner likely to harass or cause 
alarm. 
While it does not appear Alabama has had the sad occasion to consider this statute in the context 
of a radio broadcast, it cannot be overlooked that the broadcasters alleged over-the-air attack on 
Ms. Woods was deliberate, calculated to offend and did in fact cause alarm.  Her letter to this 
agency should be taken as ample indication that she was alarmed.  We should be as well.
B.	Dismissal is Improper on the Facts of this Case
The Bureau found Ms. Woods complaint described offensive but not patently 
offensive language and without any further effort, concluded dismissal was proper.  As I stated 
above, Ms. Woods allegations included described a vulgarity (pussy), a second vulgarity 
(bitch), an patently offensive remark (stick up her ass) and a demeaning and personal attack 
(hope she has a wreck and gets killed on the way to work).   In dismissing her complaint our 
Bureau read the facts alleged in her 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. 
Dismissal without even attempting to ascertain from the broadcaster (perhaps the only 
party in possession of the necessary facts) whether the elements of an indecent broadcast were 
present is unfair, particularly given the prima facie case for a statutory violation described in Ms. 
Woods letter.  Moreover, it is difficult to discern what more specific allegations are necessary to 
state a prima facie violation under the statute.  It may be that constitutional precepts ultimately 
require such facts be proved prior to imposition of a penalty, but it does not require such proof at 
the outset of a proceeding.  The Bureaus apparent expansion of what is necessary to state a 
violation under the statute is improper.
Ms. Woods established a prima facie case for indecency because the alleged remarks, 
taken together, void any reliance on the rule that occasional indecent remarks violate nothing.  
It seems the Bureau broke up a single harassing episode into two vulgar remarks, a single, 
patently offensive remark and a demeaning, personal attack to avoid finding an actionable 
complaint let alone a violation.  Unfortunately, this Commission has erected so many barriers to 
complaints from the public that our indecency enforcement program is rendered ineffective, as 
this case demonstrates.  Its time for the Commission to begin taking indecency cases seriously 
again.
#  #  #
  See Letter Complaint.
  See Letter Complaint.
  See Bureau Letter Dismissing Complaint at 2.
  See 18 U.S.C.  1464; Communications Act,  503(b)(1)(D); The FCC may impose civil 
penalties because the statutes authorizing civil penalties incorporate  1464, a criminal statute.  
See 47 U.S.C.  312(a)(6), 312(b)(2), and 503(b)(1)(E) (1970 Supp. V).
  See Enforcement of Prohibitions Against Broadcast Indecency, 8 FCC Rcd 704, n. 10 (1993). 
The Commissions jurisprudence does not indicate whether the "patently offensive" and 
"indecent" determinations should be made with respect to the broadcast communitys vision of 
what is necessary to protect minors or the sensibilities of the broadcast community as an adult 
whole.
  See, e.g., Infinity Broadcasting Corp., 3 FCC Rcd 930, 931-32 (1987), affd in part, vacated in 
part on other grounds, remanded sub nom. Act I, 852 F.2d 1332 (D.C. Cir. 1988).
  FCC v. Pacifica, 438 U.S.726, 748 (1978).
  See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).
  See Cohen v. California, 403 U.S. 15, 21-22 (1971).
  See Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128 (1989).
  See e.g. International Society for Krishna Consciousness v. Lee, 505 U.S. 672, 684 (1992) 
(finding that "face-to-face solicitation presents risks of duress that are an appropriate target of 
regulation").
  See Alabama Code, 1975  13A-11-8.
  See Complaint Letter.
  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)).
2
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This is an unofficial announcement of Commission action.  Release of the full text of a Commission order
constitutes official action.  See MCI v. FCC. 515 F 2d 385 (D.C. Cir. 1974).