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PRESS STATEMENT OF COMMISSIONER GLORIA TRISTANI

Re: Enforcement Bureau Letter Ruling on Indecency Complaint 
Against WDGC(FM), Durham, North Carolina

The FCC's Enforcement Bureau has issued a letter dismissing a complaint from 
Joyce Moller of Burlington, North Carolina.  Ms. Moller had filed a complaint with the 
Commission regarding the broadcast of potentially indecent material by WDCG (FM). 
Ms. Moller's complaint says that at 8 a.m. on February 5, 2001, hosts of the "Bob and 
Madison Showgram" on WDCG were 

taking calls from people that had never masturbated (shaking hands with the 
queen or something to that effect). . [T]hey told the listener in question that they 
would give them ten minutes to put the phone down and try it.  If they did they 
would give them `a bunch of prizes.'

Ms. Moller went on to say:

I couldn't believe that it was actually on the radio and once that settled in, I 
couldn't believe that they would air this trash at 8 am!   Parents can't and 
shouldn't have to monitor everything their children listen to on the radio.

Actually, Ms. Moller's observation about the need to protect children is precisely 
why the Supreme Court has upheld the FCC's authority to limit indecent broadcasts.  In 
FCC v. Pacifica Foundation, the Court said indecency regulation is appropriate because  
parents need help in protecting their children from potentially harmful broadcast material 
and because "broadcasting is uniquely accessible to children."   

The statute passed by Congress that gives the FCC authority to regulate indecent 
broadcasts says: "Whoever utters obscene, indecent, or profane language by means of 
radio communications shall be fined not more than $10,000 or imprisoned not more than 
two years, or both."   It is well established that the context is essential in determining 
whether a particular broadcast is indecent.   

Of the three factors recently identified by the Commission as that establish 
context, two seem particularly relevant here: (1) whether the material appears to pander 
or is used to titillate; and (2) whether the material dwells on the sexual or excretory 
activity.   First, Ms. Moller explains that the on air personality used a slang term 
("shaking hands with the queen") for masturbation.  Ms. Moller also stated that the on air 
personalities offered prizes to a caller who would masturbate during the program.  These 
two facts suggest that this discussion about masturbation was not a bona fide news cast 
but a conversation intended to titillate and pander.  Second, as to whether the material 
dwelled on the discussion of sexual activity, Ms. Moller's complaint indicates that this 
segment of the program apparently lasted for at least 10 minutes.  This implies something 
much closer to a persistent focus than a fleeting reference. 

Given this, Ms. Moller's complaint deserved a careful investigation rather than the 
summary dismissal it received.  At the very least, the Bureau should have contacted the 
station to request a tape or transcript of this program.  As I suggest in a separate Press 
Statement, I believe the Bureau also should contact the complainant where it appears 
reasonably likely that additional "context" would result in a finding that our indecency 
ban has been violated.   Such follow up, had it occurred in this case, might well have led 
to the finding that WDCG violated our broadcast indecency limitations.  Without a 
change in the Commission's process for enforcing the broadcast indecency regulations, 
far too many complaints will be dismissed for "lack of context" when all that is required 
for reasoned decisionmaking is a minimal amount of follow up.




  FCC v. Pacifica Foundation, 438 U.S. 726, 749-750 (1978).
  18 U.S.C.  1464; Communications Act,  503(b)(1)(D).
  Pacifica, 438 U.S. 726, 750 ("context is all-important").
  In the Matter of Industry Guidance On the Commission's Case Law Interpreting 18 U.S.C.  1464 and 
Enforcement Policies Regarding Broadcast Indecency, Policy Statement, FCC 01-90 (rel. Apr. 6, 2001) at 
5.

  Press Statement of Commissioner Gloria Tristani Re: Enforcement Bureau Letter 
Ruling on WKQX (FM), Chicago, Illinois Indecency Complaints (rel. July 2, 2001).