*Pages 1--5 from  Microsoft Word - 6846.doc*
 NEWS  News  Media  Information  202  /  418-  0500  TTY  202  /  418-  2555  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.  Cir.  1974). 
 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.  1  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.  2 
 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.  3  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. 
 1  See  Letter  Complaint. 
 2  See  Letter  Complaint. 
 3  See  Bureau  Letter  Dismissing  Complaint  at  2. 
1
 2 
 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.  4 
 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.  5 
 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.  6 
 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").  7 
 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 
 4  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).  5 
 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.  6 
 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).  7 
 FCC  v.  Pacifica,  438  U.  S.  726,  748  (1978). 
2
 3 
 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.  8 
 While  one  may  register  a  public  protest  by  placing  a  vulgar  message  on  his  jacket  and,  in  so 
 doing,  expose  unwilling  viewers,  9  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.  10  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.  11 
 8  See  Chaplinsky  v.  New  Hampshire,  315  U.  S.  568,  571-  72  (1942). 
 9  See  Cohen  v.  California,  403  U.  S.  15,  21-  22  (1971). 
 10  See  Sable  Communications  of  Cal.,  Inc.  v.  FCC,  492  U.  S.  115,  128  (1989). 
 11  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"). 
3
 4 
 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.  12 
 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).  13  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.  14 
 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. 
 12  See  Alabama  Code,  1975    13A-  11-  8. 
 13  See  Complaint  Letter. 
 14  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)). 
4
 5 
 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. 
 #  #  # 
5