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May 18, 2000


Re: Enforcement Bureau Letter Ruling on Don and Mike Indecency Complaint

The FCC Enforcement Bureau has issued a letter dismissing an indecency complaint filed by Flora Barton, Jose Armas and the National Latino Media Council arising out of an airing of the "Don and Mike Show" on WJFK-FM. Although I have publicly condemned the broadcast at issue as hateful, racist, bigoted and demeaning, I write here to state my initial opinion that the broadcast is also indecent.

There can be no question that the FCC has the authority - indeed, the obligation - to vigorously enforce its broadcast indecency rules. Congress empowered the FCC to impose civil penalties on licensees who broadcast "any obscene, indecent, or profane language."(1) Moreover, the D.C. Circuit has specifically upheld the constitutionality of the FCC's definition of indecency, as well as the ban on indecency between the hours of 6 a.m. and 10 p.m. designed to minimize children's exposure to such material.(2) The court held that the Commission's indecency rules were an appropriate means of furthering the government's compelling interest in supporting parental supervision of what their children see and hear on the public airwaves, as well as the government's own interest in children's well-being.(3)

In this case, most of the public outrage has been focused on the abusive comments of the hosts, Don and Mike. Even the licensee recognized that the hosts exceeded "the bounds of good taste in their treatment of Ms. Barton," warranting not one, but two, on-air apologies. My initial view, however, is that their comments were not only repugnant but indecent.

The Commission defines indecency as "language 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."(4) 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 isolated and fleeting.(5) Consider the following excerpts from the transcript attached to the complaint:

DON: I learned - all right, let me give you a Spanish lesson right now. Porque. Let's listen to this. I got some Spanish here let's see -

CLERK: _______________

DON: -- let's see if you know what they - what I'm saying here.

CLERK: Okay.

DON: Spanish lesson.

VOICE: Spanish.

DON: Spanish.

VOICE: Spanish commands.

DON: I'm going to give you some commands now, okay? Let's see. I'll show you how good I know Spanish. Listen to this.

CLERK: That's not you talking.

VOICE: Eat me.

DON: All right. Eat -

CLERK: That's not you talking.

MIKE: This is, this is our, our language tapes.

DON: Listen.

VOICE: Eat me. (In Spanish) Comeme.

DON: (In Spanish) Comeme. How you like that? (In Spanish) Comeme.

CLERK: Go call the sheriff so they can listen to this please. They are out there.

DON: Yes, call the sheriff.

VOICE: Eat me. (In Spanish) Comeme.

DON: (In Spanish) Comeme. I'm just trying to learn your official language.

MIKE: These are our language tapes.

* * * * *

DON: I speak fourteen languages. You would be amazed at my many tongue techniques.

CLERK: Oh, really?

DON: Yes.

CLERK: No, because you, you have recorded.

MIKE: How many tongues do you speak right now?

DON: Fourteen, Mike.

CLERK: You have recorders, okay.

DON: Okay, listen to this.

CLERK: I'm going to find out where you originate -

VOICE: Eat sh____, and die.

DON: Okay, listen to this now.

VOICE: (In Spanish) ___________ y muerete.

CLERK: I'm going to find out where you're really calling from.

DON: Pardon me?

CLERK: You're going to be in big trouble.

VOICE: Eat sh____, and die.

DON: How am I going to be in big trouble?

VOICE: (In Spanish) Come m___ y muerete.

CLERK: I'm gonna - I'm gonna find out where you're calling from.

MIKE: This is a great country. This is the United States of America. It's a free country.

DON: Right. I'm telling you I don't like the fact that you made Spanish the official language -

CLERK: And how do you say it's a free country if you don't - you don't show it.

DON: It ain't that free, honey.

CLERK: You fellas, you're talking real ugly.

DON: I'm not talking ugly.

MIKE: We're not talking ugly.

CLERK: And this is a free country. You said it. So we can do what we want.

MIKE: That's right you can say anything to us. Go back to your country.

DON: Oh, I believe she's gone.

MIKE: And, she's gone. [Laughter]

DON: We'll never meet the sheriff now.

This material appears to be indecent under the Commission's rules. First, the language is clearly sexual, vulgar and shocking. "Eat me" ("comeme" in Spanish) is a vulgar and crude term for a sexual act. Instructing an unwitting member of the public to repeat these crude "commands" over the phone as part of a bogus "Spanish lesson" certainly uses these terms in a shocking and vulgar way. This theme was reinforced by the host's subsequent statement that "I speak fourteen languages. You would be amazed at my many tongue techniques." Similarly, the terms "eat sh__ and die" ("come m__y muerete" in Spanish), although minimally "bleeped out," were clearly understandable in context as crude descriptions of excretory activities.

Moreover, the references were not isolated or fleeting. The phrases "eat me" or "comeme" were repeated at least eight times. "Eat sh__ and die" or "come m__y muerete" were repeated four times. These were not stray comments or off-the-cuff remarks. These were intentional and repeated use of crude sexual and excretory terms in order to shock, offend and titillate.(6) As Justice Powell stated in a case upholding the FCC's finding that a comedy routine was indecent, "[T]he language employed is, to most people, vulgar and offensive. It was chosen specifically for this quality, and it was repeated over and over as a sort of verbal shock treatment."(7)

In sum, my initial view is that this material is actionably indecent, and that the Commission has failed to discharge its obligation to protect our children from indecent material on the public airwaves. 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. For instance, if a member of the public wants to file an indecency complaint, the Commission generally requires them to submit tapes, transcripts or significant excerpts of the offending material. This is surely an unreasonable burden to impose on the public. It means that the public cannot be protected from indecency on the public airwaves unless they have the foresight to have a tape recorder running when the offending language is broadcast.

The impact of this filing requirement is significant. In its standard letter dismissing complaints filed without a tape, transcript or significant excerpts, the Commission acknowledges that this "may preclude enforcement in some meritorious cases," but finds that such a requirement serves the public interest because of the sensitivity of the First Amendment issues involved. While I acknowledge the importance of the First Amendment, we must balance those considerations against the compelling interest in protecting our children from indecent material. The Commission has permitted the balance to become increasingly off-kilter. A radio station could be sued for libel or slander, for instance, without providing the type of contextual information that the Commission requires for indecency.(8) There is nothing in the First Amendment that requires a higher standard for indecency than for libel or slander.

It's time for the Commission to begin taking indecency cases seriously again. It's our duty to the law, and, more importantly, our duty to our children.

1    See 18 U.S.C. Sec. 1464; Communications Act, Sec. 503(b)(1)(D); FCC v. Pacifica Foundation, 438 U.S. 726, 739 n.13 (1978); Action for Children's Television v. FCC, 852 F.2d 1332, 1335 (D.C. Cir. 1988) (Act I).

2    See Action for Children's Television v. FCC, 852 F.2d 1332, 1339 (D.C. Cir. 1988); Action for Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991) (Act II), cert. denied, 112 S.Ct. 1282 (1992); Action for Children's Television v. FCC, 58 F.3d 654, 657, 659 (D.C. Cir. 1995) (Act III), cert. denied, 116 S.Ct. 701 (1996).

3    See Act III, 58 F.3d at 661.

4    See Enforcement of Prohibitions Against Broadcast Indecency, 8 FCC Rcd 704, n. 10 (1993).

5    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).

6    See, e.g., Citicasters Co. (WXTB(FM)), 13 FCC Rcd 15381 (MMB 1998) (repeated use of the word "beaver" in a sexually suggestive fashion found indecent).

7    Pacifica, 438 U.S. at 757 (Powell, J., concurring in part and concurring in the judgment).

8    See Geisler v. Petrocelli, 616 F.2d 636, 639-41 (2d Cir. 1980) (finding that libel complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim):

"[T]he mode of pleading defamation is governed by Rule 8, Fed.R.Civ.P., which requires only that plaintiff's charges be set forth in a short and concise statement, detailed only to the extent necessary to enable defendant to respond and raise the defense of res judicata if appropriate. The pleading of additional evidence is not only unnecessary, but in contravention of proper pleading procedure."

Id. at 640. See also Williams v. Gorton, 529 F.2d 668, 671-73 (9th Cir. 1976) (refusing to dismiss defamation complaint even though it failed to state several elements necessary to establish cause of action, where it did not appear beyond doubt that plaintiff could prove no set of facts to support his claim).