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FOR IMMEDIATE RELEASE                                                    Contact: 	William J. Friedman
February 28, 2001								(202) 418-2300
PRESS STATEMENT OF COMMISSIONER GLORIA TRISTANI
Re:  Enforcement Bureau Letter Ruling on WGR (AM) Buffalo, New York
Indecency Complaint
	The FCC Enforcement Bureau has issued a letter dismissing an indecency complaint filed
by Michael Palko of Buffalo, New York.  Mr. Palko's complaint against WGR (AM) arose from
words uttered during the "Bauerle and the Bull Dog" show.  Mr. Palko alleged the station
undertook a
[M]onth long piece where the station has purchased urinal splash guards
with National Hockey League emblems on them to distribute to local bars
and restaurants. Throughout this campaign, the co-hosts would regularly
talk about who they would like to "piss on" and callers were invited to call
in to talk about who in the NHL they would "piss on."  The co-hosts
regularly discuss "pissing" on NHL Commissioner Gary Bettman.
Mr. Palko also noted the show is a "morning sports talk" show and he believed the "on-going
bit" relied on "gratuitous use of excretory references."   Mr. Palko also complained of Mr.
Bauerle's use of the phrase "sawed off little prick" and repeated use of the word "prick."  He
reported his belief that Mr. Bauerle had been "reprimanded" previously for using the same
phrase.
The Division Chief dismissed the complaint: "Because the discussion you describe does
not describe sexual or excretory activities or organs in a patently offensive manner, I am
dismissing your complaint."  The Bureau also noted the challenged remarks were "brief" and
"subject matter alone is not sufficient."   Based on the record before us, I cannot agree.  Mr.
Palko stated a prima facie case for indecency sufficient to survive dismissal.  As I discuss below,
this is one of the rare complaints where each portion of the complaint comports with recognized
examples of indecent broadcast material.
A. Applicable Law
I start, as always, with the statute the FCC enforces:
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.
Our definition of an indecent broadcast is:
[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 reference to it is isolated
and fleeting.
The Supreme Court has pointed out that what constitutes a "patently offensive"
broadcast:
[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").
The context question focuses first on the type of medium, here it is broadcasting , and second on
the "type" of program, here a "morning sports talk" show.  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.   In Pacifica the
Court also said:
In this case, it is undisputed that the content of Pacifica's broadcast
was "vulgar," "offensive," and "shocking."
The "content" at issue in Pacifica was a seven word list that was part of a lengthier monologue
repeatedly employing the seven words.  One of the words in the seven word list at issue in
Pacifica was "piss,"   the repeated use of which is at issue here.  In Pacifica the parties did not
dispute the FCC's finding that the monologue was indecent.
In a separate setting, the Court has said the discharge of urine is "an excretory function
traditionally shielded by great privacy."   In U.S. v. Harvey, 991 F.2d 981 (2nd Cir. 1993), a
defendant's criminal conviction for possession of child pornography was overturned because,
inter alia, the prosecution introduced testimony regarding the content of some adult videos,
seized from defendant, that did not involve children.  The testimony included depictions of video
content "of people engaging in gross acts involving human waste," and describing "people
urinating on each other."   The Second Circuit reversed the conviction because the testimony
was introduced to create, "disgust and antagonism toward [the defendant], and resulted in
overwhelming prejudice against him."
In 1997, Senator Joseph Lieberman described a disturbingly similar scene in a video
game brought to his attention by a concerned parent:
What makes Primal Rage novel, however, is a scene known among
teenage players as the "Golden Showers" in which an ape-like
creature celebrates the killing of his opponent by actually urinating
on the corpse.
Senator Lieberman described the scene as both "repulsive" and "degrading."  See also U.S. v.
Prytz, 822 F.Supp. 311 (D.S.C. 1993) (criminal defendant purchased video tapes the Court
described as "depicting sexual activity involving urination," and the defendant described as
"golden shower" tapes).
The foregoing should leave no doubt in anyone's mind that Mr. Palko's allegations
should not be dismissed.  The U.S. Supreme Court has noted urination is excretory and is not a
subject for routine public viewing.  The repeated broadcast of the word "piss" has been
unquestioningly accepted as meeting the contour of a "vulgar" and "shocking" broadcast by the
Court.  Urination on others is so offensive to the community's sense of decency and so
inflammatory that a conviction for possession of child pornography was thrown out because
such imagery was among the degrading subjects discussed before a jury.  If the Constitution may
bar discussion of such inflammatory imagery in a criminal trial, why should it be approved for
broadcast when children are listening?  Proposing to routinely urinate on someone to express
disagreement with that person's sports affiliations (the NHL teams) or job performance (the
NHL Commissioner) is the kind of degrading and pointless personal attack that possesses little
political value.  Like "fighting words,"
[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.
Taken together these points should have counseled hesitation by the Bureau sufficient to at least
issue a letter of inquiry to this station.
B.	Dismissal is Improper on the Facts of this Case
The facts alleged by Mr. Palko demonstrate 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.  It contained a vulgar and apparently repeated
reference to urinating on other people and at least one target of this behavior was identified by
name.  Urination on other people appears to have been a promoted theme of the program rather
than anything that could be considered isolated or fleeting.  The broadcast was made during the
normal hours children are riding in cars on their way to school and are thus likely listeners.
The Bureau concluded no further investigation was needed.  However, the review of the
thankfully thin caselaw on how to treat speech, whether video or radio, that involves urinating on
others demonstrates that once again our Bureau read 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."   Moreover, it is difficult to discern what more specific allegations are
necessary to state a prima facie violation of 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.
It seems the Bureau ignored the allegation that this was a shameless month-long
campaign to discredit individuals and teams of individuals by covering them with human waste.
Callers were also apparently encouraged to use vulgarities like the word "prick."  I am at a loss
to explain the failure to even seek further review.  This decision adds weight to the public's
conclusion that the FCC's indecency enforcement program is ineffective.  Our children deserve
better.
- FCC -
  See Letter Complaint.
  See Bureau Letter Dismissing Complaint at 2.
  See 18 U.S.C. 1464; see also 47 U.S.C.  312(a)(6), 312(b)(2), and 503(b)(1)(E) (1970 ed.
and Supp. V) (FCC may impose civil penalties because the Communications Act incorporates 
1464); see 47 U.S.C.  312(a)(6), 312(b)(2), and 503(b)(1)(E).
  See Enforcement of Prohibitions Against Broadcast Indecency, 8 FCC Rcd 704, n.10 (1993).
The Commission's jurisprudence does not indicate whether the "patently offensive" and
"indecent" determinations should be made with respect to the broadcast community's 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), aff'd 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 e.g. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975)(observing "[e]ach
medium of expression . . . may present its own problems."); see also Denver Area Ed.
Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 774 (1996) (SOUTER, J.,
concurring) ("Reviewing speech regulations under fairly strict categorical rules keeps the starch
in the standards for those moments when the daily politics cries loudest for limiting what may be
said"); Id. 518 U.S. at 803 (1996) (KENNEDY, J., concurring and dissenting) ("Emphasizing the
narrowness of its holding, the Court in Pacifica conducted a context-specific analysis of the
FCC's restriction on indecent programming during daytime hours.").  The Court has repeatedly
recognized special factors as justifying regulation of the broadcast media -- the history of
extensive government regulation of broadcasting, see, e.g., Red Lion Broadcasting Co. v. FCC,
395 U.S. 367, 399-400; the scarcity of available frequencies at its inception, see, e.g., Turner
Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638; and its "invasive" nature, see Sable
Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128.
  FCC .v Pacifica, Appendix to the Opinion of the Court (setting forth "a verbatim transcript" of
the "Filthy Words" monologue).
  Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 658 (1995) citing Skinner v. Railway Labor
Executives' Assn., 489 U.S. 602, 626 (1989).
   Harvey, 991 F.2d at 994.
  Id. at 996.
  See Lieberman, J., 15 Cardozo Arts and Entertainment Law Journal 147, 149 (1997).
  Id.
  See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).
  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).
1
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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. Circ 1974).