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Federal Communications Commission
Washington DC 20554

May 18, 2000

In Reply Refer to:

Benjamin Perez, Esq
Abacus Communications Company
Suite 101
1801 Columbia Road, N.W
Washington, D.C. 20009-2031

Dear Mr. Perez:

This letter provides a further response to your December 19, 1999, Complaint against WJFK-FM, Manassas, Virginia, filed on behalf of Flora Barton, Jose Armas and the National Latino Media Council.

By way of background, your Complaint raised three issues regarding a segment of the "Don and Mike Show:" (1) that the broadcast involved a telephone call aired without approval of the called party, in violation of section 73.1206 of the Commission's rules; (2) that the broadcast aired indecent language in violation of section 73.3999(b) of the Commission's rules; and (3) that the broadcast included offensive remarks regarding Hispanics that potentially fomented violence, contrary to the public interest. In this latter regard, you request that the Commission change its policy, described in the Complaint as being that "only in the most blatant examples of incitement to riot will Commission action be taken, and only after local courts have determined that an instance of incitement has occurred."(1)

Broadcast of Telephone Call: We addressed this issue in a Notice of Apparent Liability, Infinity Broadcasting Corporation of Washington, D.C., DA 00-516 (EB released March 8, 2000) (licensee apparently liable for $4,000), and a Forfeiture Order, Infinity Broadcasting Corporation of Washington, D.C., DA 00-1096 (EB released May 17, 2000) (forfeiture of $4,000 imposed).

Indecency: The Commission has defined indecency as material which, 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. See, e.g., FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Applying this definition and existing precedent, we find that the specific statements referenced in your complaint as allegedly indecent do not constitute actionable indecency. (2) See, e.g., Jacor Broadcasting of Tampa Bay, Inc., 7 FCC Rcd 1826, 1827-28 (MMB 1992).

Offensive Remarks: There is no doubt that many of the remarks in the broadcast concerning Hispanics were highly offensive. As you recognize in your Complaint, existing Commission policy would not provide a basis for enforcement action. Rather, the Commission's policy is not to take action against stations for the broadcast of material that is offensive or potentially foments violence unless it rises to the level of a "clear and present danger." See, e.g., Cattle Country Broadcasting, 58 RR 2d at 1113 (allegations of speech constituting a "clear and present danger" are "most appropriately performed by the local authorities under the auspices of applicable state and federal law"; in any event, renewal application not designated for hearing on the basis of, among other things, derogatory remarks about Jews and African-Americans where no demonstration that the speech was "directed toward inciting or producing imminent lawless action and is likely to produce such action"); Turner Broadcasting Corp., 87 FCC 2d 476, 481 (1981) (similar result regarding derogatory remarks against Iranians where no "clear and present danger" and no action taken by local law enforcement authorities); Anti-Defamation League of B'nai B'rith, 4 FCC 2d 190, 192-93 (1966) ("highly offensive" anti-Semitic remarks not basis for action against licensee's renewal application where no "clear and present danger"). Applying these precedents to the facts of this case as recited in your Complaint, we see no basis for enforcement action. Moreover, we see no basis for recommending that the Commission modify its long-standing policy in this area along the lines you have suggested. The Commission's policy is based on First Amendment considerations and section 326 of the Communications Act, which prohibits the Commission from censoring broadcast material or interfering with licensees' right of free speech. Given these constitutional and statutory underpinnings, we do not believe that you have stated an adequate basis for altering the balance of rights and obligations reflected in the current policy.

David H. Solomon
Chief, Enforcement Bureau

cc: H. Anthony Lehv, Esq.
      Steven A. Hildebrandt, Esq.

1    Complaint at 14, citing Cattle Country Broadcasting, 58 RR 2d 1109 (1985).

2    In the above-referenced Notice of Apparent Liability, we indicated that the indecency allegation "will be" addressed separately. This letter supersedes a letter on this subject inadvertently issued on February 23, 2000, by the Assistant Chief of the Investigations and Hearings Division.