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 NEWS  News  media  Information  202  /  418-  0500  TTY  202  /  418-  25  Fax-  On-  Demand  202  /  418-  2830  Internet:  http://  www.  fcc.  gov  ftp.  fcc.  gov  Federal  Communications  Commission  445  12  th  Street,  S.  W.  Washington,  D.  C.  20554  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.  Circ  1974). 
 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.  Schmids  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  stations  morning  show  that  ran  every  4-  5 
 hours. 


 According  to  his  complaint,  he  did  not  receive  a  promised  return  call  from  the  stations 
 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  Commissions  definition  of  indecency.  2 


 Mr.  Schmids  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 


 1  See  Complaint  Letter  at  1  (copy  attached) 
1
 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  Courts  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.  Its  time  for  the  Commission  to 
 begin  taking  indecency  cases  seriously  again.  Its  our  duty  under  the  law,  and,  more  importantly, 
 our  duty  to  our  children. 


 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) 
2