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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Entercom Buffalo ) File No. EB-00-IH-0221
License, LLC )
) Facility ID # 56101
Licensee of Station WGR(AM), )
Buffalo, New York )
Adopted: June 27, 2002 Released: June 28,
By the Chief, Enforcement Bureau:
1. In this Order, we deny Complainant Michael P.
Palko's petition for reconsideration of the Enforcement
Bureau staff's dismissal of a complaint in which Mr. Palko
alleged that Entercom Buffalo License, L.L.C.
(``Entercom''), licensee of WGR(AM), Buffalo, New York
(``WGR'') broadcast indecent material.
2. On May 8, 2000, Mr. Palko filed a complaint in
which he alleged that station WGR had broadcast indecent
material in two instances. Mr. Palko alleged that WGR's
morning program co-hosts, in conjunction with the station's
distribution of urinal splash guards decorated with emblems
of National Hockey League (``NHL'') teams to local bars and
restaurants, repeatedly stated that they wanted to ``piss
on'' teams, players and the Commissioner of the NHL. Mr.
Palko also alleged that the hosts would invite listeners to
call the station to talk about who in the NHL they would
``piss on.'' Although Mr. Palko failed to provide the time
during which these allegedly indecent remarks were made, he
did state that these statements continued as late as 9:45
a.m. on May 8, 2000. In the second instance, Mr. Palko
alleged that WGR broadcast additional indecent material on
May 8, 2000 when one of the hosts, in response to a
listener's question as to whether the listener could say a
specific phrase on the air, told the listener: ``you can
say prick on the air, you can even call someone a sawed-off
little prick on the air.'' Mr. Palko claimed that the host
``used the word a few more times for effect.''
3. By letter dated February 23, 2001, the Enforcement
Bureau's Investigations and Hearings Division (``IHD'')
dismissed Mr. Palko's complaint, finding that WGR did not
broadcast descriptions of sexual or excretory activities or
organs in a patently offensive manner. On March 13, 2001,
Mr. Palko sent a letter asking IHD to review the decision
not to take enforcement action and requesting that this
letter be treated as a petition for reconsideration.1 IHD
then sent an inquiry letter to Entercom directing it to
provide information about whether WGR broadcast the
aforementioned material. It also directed Entercom to
provide a recording of the alleged broadcast, if one
existed. Entercom responded by letter dated June 26, 2001.
On November 16, 2001, IHD sent Mr. Palko a copy of
Entercom's response and provided him with an opportunity to
comment further. Mr. Palko responded by letter dated
December 11, 2001. After reviewing the entire record in
this matter, we conclude that there is not sufficient
information to demonstrate that Entercom broadcast
apparently indecent material as alleged.
4. It is a violation of federal law to broadcast
obscene or indecent programming. Specifically, Title 18 of
the United States Code, Section 1464 (18 U.S.C. § 1464),
prohibits the utterance of ``any obscene, indecent or
profane language by means of radio communication.''
Congress has given the Federal Communications Commission the
responsibility for administratively enforcing 18 U.S.C. §
1464. In doing so, the Commission may, among other things,
impose a monetary forfeiture, pursuant to Section 503(b)(1)
of the Communications Act (the ``Act''), 47 U.S.C. §
503(b)(1), for broadcast of indecent material in violation
of 18 U.S.C. § 1464. Federal courts have upheld Congress's
authority to regulate obscene speech and, to a limited
extent, indecent speech. Specifically, the U.S. Supreme
Court has determined that obscene speech is not entitled to
First Amendment protection. Accordingly, Congress may
prohibit the broadcast of obscene speech at any time.2 In
contrast, federal courts have held that indecent speech is
protected by the First Amendment.3 Nonetheless, the federal
courts consistently have upheld Congress's authority to
regulate the broadcast of indecent speech, as well as the
Commission's interpretation and implementation of the
statute.4 However, the First Amendment is a critical
constitutional limitation that demands we proceed cautiously
and with appropriate restraint.5 Consistent with a
subsequent statute and case law,6 under the Commission's
rules, no radio or television licensee shall broadcast
obscene material at any time, or broadcast indecent material
during the period 6 a.m. through 10 p.m.7
5. In enforcing its indecency rule, the Commission
has defined indecent speech as language that first, in
context, depicts or describes sexual organs or activities.
Second, the broadcast must be ``patently offensive as
measured by contemporary community standards for the
broadcast medium.''8 This definition has been specifically
upheld by the federal courts.9 The Commission's authority
to restrict the broadcast of indecent material extends to
times when there is a reasonable risk that children may be
in the audience.10 As noted above, current law holds that
such times begin at 6 a.m. and conclude at 10 p.m.11
6. The Commission's indecency enforcement is based on
complaints from the public. Once a complaint is before the
Commission, we evaluate the facts of the particular case and
apply the standards developed through Commission case law
and upheld by the courts.12 ``Given the sensitive nature of
these cases and the critical role of context in an indecency
determination, it is important that the Commission be
afforded as full a record as possible to evaluate
allegations of indecent programming.''13 In evaluating the
record to determine whether the complained of material is
patently offensive, three factors are particularly relevant:
(1) the explicitness or graphic nature of the description;
(2) whether the material dwells on or repeats at length
descriptions of sexual or excretory organs or activities;
and (3) whether the material appears to pander or is used to
titillate or shock.14 As discussed below, we find that
Entercom did not broadcast indecent material in violation of
the Commission's Rules.
7. We first decline to find that Entercom broadcast
indecent material in violation of the Commission's rules
when WGR allegedly broadcast the word ``prick.'' According
to Mr. Palko's complaint, the hosts were responding to a
listener's questions as to what could be said on the radio.
Specifically, the hosts told the listener that ``you can say
prick on the air, you can even call someone a sawed-off
little prick on the air.'' In this context, the word
``prick'' was not used ``to describe or depict'' a sexual
activity or organ, but was instead used as a vulgar insult.
As the Commission previously stated, the use of a specific
word, in and of itself, is not sufficient to demonstrate
that a station has aired indecent material.15 We therefore
decline to find that Entercom's broadcast of the word
``prick'' in this circumstance violated the Commission's
8. Mr. Palko also alleged that the WGR hosts
regularly stated that they wanted to ``piss on'' numerous
individuals and that they invited listeners to call in and
declare whom they would most like to ``piss on.'' In the
complaint, Mr. Palko claimed that the hosts ``regularly talk
about who they would `piss on' and callers were invited to
call in to talk about who in the NHL they would `piss on.'''
He also asserted that the hosts regularly discuss ``pissing
on'' the NHL Commissioner and that this continued as late as
May 8, 2000. In his December 11, 2001 letter, Mr. Palko
reiterated this allegation and stated that the hosts ``were
discussing specifically of urinating on individuals'' and
pointed to the station's distribution of urinal splash
guards as proof of this allegation.
9. Entercom disputes Mr. Palko's allegations. In
declarations attached to its response, both hosts explain
that, in the spring of 2000, they were promoting a
demonstration designed to express their displeasure with the
NHL. They came up with the idea to label urinal splash
guards with the letters ``NHL'' and then give them away to
local restaurants and bars. The hosts then promoted this
give-away on the air. The hosts explain in their
declarations that they do not recall promoting the splash
guards on May 8, 2000 (the only date listed in Mr. Palko's
complaint) or regularly discussing ``pissing on''
individuals. Entercom does admit, however, that the hosts
used the word ``piss'' at some unknown time during a
broadcast while they were promoting the urinal splash guard
giveaway and that the hosts discussed being ``pissed off''
or ``pissed at'' the NHL and the NHL's Commissioner. The
hosts do not recall encouraging listeners to call in and
suggest names of people whom they want to ``piss on,''
discussing this topic, or even encouraging similar
discussions on the air. Entercom does admit that the hosts
``may have on occasion used the phrase `piss on' in
expressing their anger at the plight of the Buffalo
Sabres,'' the NHL hockey organization in Buffalo.
10. Even accepting Mr. Palko's description of the
broadcasts, we conclude that WLDI did not broadcast
indecent material in violation of the Commission's Rules.
We first find that the hosts' use of the word ``piss'' in
conjunction with the phrases ``pissed at'' and ``pissed
off'' is clearly not indecent. Both phrases are commonly
used slang terms indicating or describing a sense of anger.
Moreover, in the context of these broadcasts, it appears
that the hosts used these phrases as a way of expressing
their anger at the NHL. Contrary to the allegations in the
complaint, the hosts did not use the phrases to describe or
depict an excretory act. Additionally, the use of the
phrases did not appear to pander or titillate, and did not
appear to be presented for shock value. Thus, we decline to
find that Entercom's broadcast of the phrases ``pissed at''
and ``pissed off'' violated the Commission's rules.
11. As noted above, Entercom also admits that the
hosts may have used the phrase ``piss on'' during the
broadcasts while they were promoting the distribution of the
urinal splash guards. Even assuming, again, that Mr.
Palko's version of what was broadcast is correct, we do not
find that this statement is indecent. When considered
within the context of the broadcast, the material is not
patently offensive as measured by contemporary community
standards for the broadcast medium. Specifically, we find
that Entercom's use of the phrase ``piss on'' was not so
graphic or explicit as to be actionable. We therefore do not
find this broadcast to be indecent.
12. Accordingly, for the reasons set forth herein, IT
IS ORDERED, pursuant to Section 405 of the Communications
Act of 1934, as amended, 47 U.S.C. § 405, and Section 1.106
of the Commission's Rules, 47 C.F.R. § 1.106, that the
petition for reconsideration filed March 13, 2001 by Michael
P. Palko is hereby DENIED.
13. IT IS FURTHER ORDERED THAT a copy of this
MEMORANDUM OPINION AND ORDER shall be sent by Certified Mail
Return Receipt Requested to Michael P. Palko, Palko Corp.,
2146 Genesee Street, Buffalo, New York, 14211-1938.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 Mr. Palko stated: ``I formally ask that you revisit my
original complaint and issue a warning to WRG radio or
impose a monetary forfeiture.''
2 See Miller v. California, 413 U.S. 15 (1973), rehearing
denied, 414 U.S. 881 (1973); Sable Communications of
California, Inc. v. FCC, 492 U.S. 115 (1989).
3 See Sable Communications of California, Inc. v. FCC,
492 U.S. at 126.
4 See FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
See also Action for Children's Television v. FCC, 852 F.2d
1332, 1339 (D.C. Cir. 1988) (``ACT I''); Action for
Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir.
1991), cert denied, 112 S.Ct. 1282 (1992) (``ACT II'');
Action for Children's Television v. FCC, 58 F.3d 654 (D.C.
Cir. 1995), cert denied, 116 S.Ct. 701 (1996) (``ACT III'').
5 See ACT I, 852 F.2d at 1344 (``Broadcast material that
is indecent but not obscene is protected by the first
amendment; the FCC may regulate such material only with due
respect for the high value our Constitution places on
freedom and choice in what people say and hear.''). See
also United States v. Playboy Entertainment Group, Inc., 529
U.S. 803, 813-15 (2000).
6 Public Telecommunications Act of 1992, Pub. L. No. 356,
102nd Cong., 2nd Sess. (1992); ACT III.
7 See 47 C.F.R. § 73.3999.
8 Infinity Broadcasting Corporation of Pennsylvania, 2
FCC Rcd 2705 (1987) (subsequent history omitted) (citing
Pacifica Foundation, 56 FCC 2d 94, 98 (1975), aff'd sub nom.
FCC v. Pacifica Foundation, 438 U.S. 726 (1978)).
9 In FCC v. Pacifica Foundation, the Supreme Court quoted
the Commission's definition of indecency with apparent
approval. FCC v. Pacifica Foundation, 438 U.S. at 732. In
addition, the D.C. Circuit Court of Appeals upheld the
definition against constitutional challenges. See ACT I,
852 F.2d at 1339; ACT II, 932 F.2d at 1508; ACT III, 58 F.3d
10 See ACT I.
11 See ACT III.
12 See Industry Guidance on the Commission's Case Law
Interpreting 18 U.S.C. § 1464 and Enforcement Policies
Regarding Broadcast Indecency, 16 FCC Rcd 7999, 8015, para.
14 Id., 16 FCC Rcd at 8003, para. 10.
15 See Letter to Mr. Peter Branton, 6 FCC Rcd 610 (1991)
(``no terms are per se indecent, and words or phrases that
may be patently offensive in one context may not rise to the
level of actionable indecency if used in other, less
objectionable circumstances''), appeal dismissed, Branton v.
FCC, 993 F.2d 906 (D.C. Cir. 1993). See also Infinity
Broadcasting Corp. of Pennsylvania, 3 FCC Rcd 930, 932,
para. 16, n.28 (1987) (``...we cannot list any particular
language or material that will always be found indecent.''),
aff'd in part and remanded in part sub. nom. Action for
Children's Television v. FCC, 852 F.2d 1332 (D.C.Cir. 1988).