In Re Application of JACK STRAW MEMORIAL FOUNDATION,
SEATTLE, WASH. For
Renewal of License of Radio Station KRAB-FM
FEDERAL COMMUNICATIONS COMMISSION
21 F.C.C.2d 833
RELEASE-NUMBER: FCC 70-93
JANUARY 21, 1970.
OPINION:
[*833] GENTLEMEN: This refers to the pending renewal application of station KRAB-FM, Seattle, Wash.
During the past license period the Commission has received complaints from the public alleging that on occasions profane, indecent, or obscene language has been broadcast by your station. In response to a Commission request you have furnished statements pertaining to your policy regarding the broadcast of such material and specific comments regarding KRAB's broadcast of a program presented by Reverend Sawyer. With respect to the Reverend Sawyer program, you state that the entire tape had not been auditioned prior to broadcast and when, during the broadcast, it became clear that the language used was contrary to your station's policy regarding material which you consider suitable broadcasting, the program was terminated.
In view of the foregoing background, we shall focus on the Reverend Sawyer matter as illustrative of the issue before the Commission. We have reviewed the pertinent portion of the Reverend Sawyer program in light of your explanatory statements and policy. We note initially that the critical consideration is not whether or not action under 18 U.S.C. 1464 is warranted. For, in any event, there is the issue of whether KRAB-FM is exercising proper supervision of its operations and specifically is following its stated policies in this area.
Thus, your station policy eschews the broadcast of "sensationalism for its own sake" and requires that speakers "observe the commonsense strictures against obscenity and libel." Your procedures require that "material which raises questions as to its merit for broadcast because of some social, moral, aesthetic, or scatological outspokenness" be referred by the program director to the station manager for audition and a determination as to whether the material should be broadcast in its entirety, in an edited version or not at all.
Any material "which inspires [the] concern" of the station manager as to its "appropriateness for broadcast" is to be reviewed by the board of directors. You report that under this system, one or two programs per month are eliminated for "obscenity, obscurantism, sensationalism, or simple boorishness." Portions of the Reverend Sawyer program [*834] were clearly contrary to your stated policy as demonstrated by KRAB's removal of the Sawyer broadcast from the air before completion. However, while we believe that in this instance there could have been a more appropriate exercise of proper licensee control in the form of compliance with your own procedures, there is no indication of any overall pattern of failure in this area of licensee responsibility.
In view of the foregoing the Commission has renewed station KRAB-FM's license for the period ending February 1, 1971. It is expected that appropriate steps will be taken by the licensee to assure implementation of stated procedures regarding the selection of broadcast material consistent with the standards which you have set forth.
Commissioners Cox and Johnson dissenting and issuing statements.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENTBY: COX; JOHNSON
DISSENT:
DISSENTING STATEMENT OF COMMISSIONER KENNETH A. COX
I dissent to the majority's action in granting only a 1-year renewal for KRAB-FM. I know of nothing in the station's record that would justify imposition of this sanction.
Despite a vague reference to "complaints from the public alleging that on occasions profane, indecent, or obscene language has been broadcast," the majority comment on only one program. This was the broadcast of a portion of a 30-hour "autobiographical novel for tape" prepared by a Rev. Paul Sawyer which was aired over the station in August 1967. The Commission does not have a transcript of the program, so we have no idea of the context in which the language complained of was used. We have simply been advised that three so-called four-letter words were used -- apparently several times. They are words that I do not use, and which many people find highly offensive. However, it seems clear that, under existing precedents the words as used were neither obscene nor profane. Many people might regard them as indecent -- that being the third category of language prohibited by 18 U.S.C. 1464. However, that term is so indefinite that I believe it is probably unconstitutionally vague.
However, the majority do not contend that the broadcast violated 18 U.S.C. 1464 -- and typically the Department of Justice has not regarded this kind of usage as justifying a prosecution under the statute. Rather, my colleagues proceed on the ground that this single broadcast violated the licensee's announced policy requiring such material to be referred to the station manager for audition -- and, in certain cases, to the board of directors as well. The licensee concedes that the entire Sawyer tape had not been preauditioned, and that when, during broadcast, it became clear that some of the language was contrary to station policy, the program was terminated.
I think some detail as to this single incident is necessary in order to understand what is involved here. As I understand the situation, the facts are as follows: It was suggested to Lorenzo Milam, then president of the licensee of KRAB, that the station broadcast the taped program submitted by Reverend Sawyer, the minister of the Lake Forest Park Unitarian Church, which is located in a northern suburb of Seattle. Mr. Milam auditioned portions of the tape and [*835] found the contents and the method of presentation interesting. He did not hear any objectional language in the portions which he played. The program was therefore scheduled for broadcast beginning at 10 a.m. on Saturday, August 5, 1967. Mr. Milam does not go to the station on Saturdays until after noon, but was listening to the station at home. Reverend Sawyer was at the studio to ride gain on his tape recorder, which was being used to play his tape, and the station was attended by a young woman employee. After the program had proceeded for awhile Mr. Milam heard some language which he considered objectionable. He called the station and asked either the employee in charge or Reverend Sawyer to be careful to prevent any further instances of that kind. However, he again heard language of the kind which had concerned him and so called the station a second time. He talked to Reverend Sawyer and asked him to see to it that no more such language was broadcast. Not being sure that the matter would be corrected, he then drove to the station. After discussing the matter with Reverend Sawyer and the employee in charge, it was agreed to terminate the broadcast. He and Reverend Sawyer then went on the air and discussed the tapes which had been on the air. It appears that the program was broadcast for about 2 1/2 hours. As a result of the presentation of this program, the Commission received one complaint. The matter was investigated by an assistant U.S. attorney in Seattle. He concluded, with the concurrence of his superior, that there was no basis for prosecuting any of the parties involved in the incident.
It is Mr. Milam's position that the broadcast was not obscene or indecent, but that it was inconsistent with the station's program standards. It seems to me that any deviation from the station's policies was so slight that it should not result in the sanction imposed here.
It is desirable, of course, that licensees observe the policies they have adopted to insure service in the public interest. We have, on occasion, imposed sanctions against some who have been so lax in their supervision of staff members that extensive violations of station policy, of our rules, or of the law have occurred. But we have always exercised great care in the area of speech, indicating that we would act only where a consistent pattern of programming contrary to the public interest was involved Palmetto Broadcasting Co., 33 F.C.C. 250, at 257-8 (1962); Pacifica Foundation, 36 F.C.C. 147, at 150 (1964).
In this case there is no such pattern, since the majority rest their action on a single program. There have been other complaints against KRAB, but the majority apparently do not regard them as of sufficient significance to be considered here -- a conclusion with which I agree. I think the imposition of a sanction for one departure is not only without precedent, and in my judgment highly arbitrary, but is also likely to exert a chilling effect on licensees' freedom in programming their stations -- a result the courts have sought to protect against and one which should be of grave concern to all who believe that our democracy requires the maximum possible freedom of expression.
I believe that this represents a shift in the Commission's position -- one that troubles me greatly. In 1964, we granted renewals of license for KPFA-KPFB, KPFK, and WBAI, stations licensed to the Pacifica Foundation which, like KRAB, are subscriber supported rather than commercially operated. We had had those stations on deferred renewal [*836] for many months while we -- and a Senate committee -- investigated a number of matters. These included complaints of a number of instances in which four-letter or allegedly obscene words were broadcast. The Commission discussed these matters at length and found that they would not bar grant of a full-term renewal. As to this question, we said:
We recognize that as shown by the complaints here, such provocative programming as here involved may offend some listeners. But this does not mean that those offended have the right, through the Commission's licensing power, to rule such programming off the airwaves. Were this the case, only the wholly inoffensive, the bland, could gain access to the radio microphone or TV camera (36 F.C.C. 147, at 149).
In 1965 the licenses for Pacifica's California stations expired. Again, the Commission had received a number of complaints about language broadcast by the stations. Our staff recommended regular renewals. However, because Pacifica had failed fully to conform to its programming policies, the Commission granted 1-year renewals -- with Chairman Henry, Commissioner Loevinger, and I dissenting and voting for full term renewals.
On March 27, 1967, after reviewing the operations of KPFA-KPFB and KPFK during their short renewal period, the Commission granted the stations regular renewals.
On February 28, 1969, we again considered applications for renewal of the licenses of Pacifica's three California stations. Again there were allegations that obscene, profane, or indecent language had been used in programming presented by the stations. The Commission considered these complaints and then, after quoting the portion of our January 1964, decision set forth above, said:
6. We believe that the reasoning of our January 1964 decision as quoted above is equally applicable in our consideration of the instant applications. There can be no doubt that the stations provide a unique and well received programming for a sizable segment of the population of the areas they are licensed to serve. Viewing the complaints against the overall performance of the applicant during the renewal period, we find in the listeners' complaints no impediment to a grant of the applications.
This action was taken by a vote of 5 to 2, with Commissioners Bartley and Robert E. Lee dissenting.
I think the action with respect to KRAB is inconsistent with this line of rulings with respect to the very similar operations of the Pacifica stations. The only time we gave Pacifica a 1-year renewal -- which I considered improper -- we had complaints with respect to five programs, not just one as is the case here. Furthermore, our staff obtained tapes of the broadcasts and summarized them for us -- whereas in this case we don't have a tape or transcript and so do not know the context in which the words complained of were used.
Since joining the Commission, Chairman Burch has expressed particular concern about the broadcast of obscene or indecent language. However, in an appearance on "Meet the Press" on January 25, 1970, the following colloquy took place:
Miss DREW. You have made it clear one of your priorities is going to be dealing with the matter of obscenity. How do you deal with obscenity without getting into censorship?
[*837] Mr. BURCH. You will have probably some shady areas that will be rather difficult but it seems to me, I still think there are certain words that have no redeeming social value. I think there are certain instances of conduct which would fall into that category.
* * *
Miss DREW. How would these rules work? Would you have a list of words that would be forbidden or would you have -- would it be desirable for stations to tape programs ahead of time so they could be sure nothing would go wrong, or would there be certain groups that would be inadvisable for a station to put on because they are more likely than others to use an obscenity? How do you envision these rules?
Mr. BURCH. I don't envision it as an easy rule to apply and I am not sure it will ever end up as a rule. We had an experience of trying to draft a statement of these words that would be acceptable and those words that would be unacceptable and, aside from it being the most obscene document probably that has ever been put together by a government agency, it was not intelligible because obviously language has to be considered in connection with the events and the acts that are taking place. [Italic supplied.]
* * *
On January 30, 1970, in a speech before the Big Brothers of the San Francisco Bay area, he recognized that:
* * * under the guiding criteria, obscene or indecent programming is not only patently offensive by contemporary community standards but also without redeeming social value. [Italic supplied.]
And, again, he said that:
Obscene programming is material which, taken as a whole, appeals to a prurient interest in sex. [Italic supplied.]
He also stated that the airwaves shouldn't be given over to a steady diet of bland, inoffensive material, even though controversial programming is bound to offend some, and that a pattern of smut should be treated differently than isolated occurrences.
Thus it seems to me that the Chairman has recognized that language which offends some may be broadcast without the licensee incurring any penalty (1) if, considered in context, it does not appeal to prurient interest in sex or has redeeming social value, or (2) if the broadcast is an isolated occurrence rather than part of pattern of such programming. But the majority have clearly assessed a penalty here for a single broadcast, and have done so without considering the context in which the language was used and without being able to determine whether the program, as a whole, appealed to prurient interest or had offsetting redeeming social value.
I think this departure from precedent and from recently announced principles makes this action arbitrary and capricious. It is also arbitrary because it requires observance of an undefined standard -- indeed, a nonexistent standard, so far as I know. It is clear that the majority will impose a sanction for the use of the three words involved here -- at least if all three are used. Of course the licensee of KRAB did not know this when it inadvertently permitted their use over the air. And what is more, other licensees do not know even now what the dangerous words are because the majority have not listed them -- and I'm not going to do their work of compiling a list of forbidden words for them. And no one -- probably not even the majority -- knows what other [*838] words will bring down the Commission's wrath upon a licensee who permits their broadcast -- regardless of frequency, context, social value, or even knowledge by the licensee that they were to be used. If a list of all the words which either offend the majority -- or which they think will offend too many of the public -- were ever published as banned from the air, that would clearly be prior censorship prohibited by section 326 of the Communications Act, as well as the first amendment. But failure to publish the list may have even more chilling effect upon broadcast programming, because licensees may avoid the use of many, many more words out of fear that they may be on the Commission's secret list. Licensees may reject recorded, taped, or filmed program matter even though they think it has social value. Or they may avoid coverage of on-the-spot news in the course of which participants might use language the broadcasters think may bring Commission retaliation. Or licensees may exclude from discussion, interview, or other live programming individuals or groups they fear may use proscribed language which might not be excised through the use of a tape-delay device. I do not think any of these voluntary restraints would be in the public interest.
There is a third element of arbitrariness in this case -- the majority apparently have a double standard when it comes to protecting the public from language which may offend some, or many, of them. Thus far they have imposed sanctions only against the licensees of KRAB and KPFA-KPFB and KPFK, noncommercial stations which broadcast very substantial cultural and informational services for audiences which support the stations through voluntary subscriber fees. They are now considering broadcasts by noncommercial educational stations. I certainly do not favor extension of this kind of action to commercial stations -- at least in situations such as we have thus far considered. But if we are going to apply such a policy to noncommercial stations, simple logic and fairness would require that it be extended to the national networks and other commercial facilities.
We have received far more complaints, for example, about matters in the "Smothers Brothers Comedy Hour" and the "Rowan and Martin Laugh-In" than have ever been lodged against KRAB or the Pacifica stations. They did not involve four letter words, but did deal with language or video matter which certain members of the public deemed obscene, indecent or profane. But I do not recall that we ever directed an inquiry to CBS or NBC. ABC once initiated a series entitled "Turn On" which was canceled after one episode because of a flood of complaints that it was offensive -- but the Commission did nothing.
Commissioner Robert E. Lee Recently observed an incident on the Johnny Carson show which so offended him that he called the WASHINGTON VICE PRESIDENT OF @NBC. But he was satisfied with a report that some minor employee had been transferred to another assignment -- though higher ranking officials of the network must have known more about this matter than Lorenzo Milam did about the language broadcast by KRAB. Of course, Nbc/ customarily bleeps out the kind of language which has gotten KRAB and the Pacifica stations into trouble. However, it is often still possible to discern what was said. While the network's effort to do the right thing satisfies some, others [*839] still complain -- as Commissioner Lee did. But the Commission did not penalize NBC. And, of course, the Smothers, Rowan and Martin, and Carson shows have all involved patterns of material that some have found offensive, rather than the limited incidents at KRAB and the Pacifica stations.
On the CBS evening news of January 5, 1970, Walter Cronkite presented two bits of filmed news coverage containing what many people regarded as profanity. One minister in Detroit forwarded a petition signed by 598 people in his area alone protesting this broadcast. I know of no action -- taken or planned -- against CBS.
I want to make it clear, once again, that I do not believe any action is required in any of these cases. But I do not think the Government of the United States should ignore complaints against rich and powerful commercial broadcasters and pick only on small, noncommercial broadcasters. If there is, in truth, a dangerously growing use of obscene, indecent, or profane matter on radio and television requiring the course the majority are charting here, then they should press this effort all across broadcasting. At least this would require commercial broadcasters -- who have never come to the defense of KRAB and the Pacifica stations in their efforts to preserve the right to present a broad range of material not found on many other stations -- to face up to the issue. They have heretofore claimed first amendment protection for their asserted right to present their views over their facilities without presenting the opposing viewpoint in accordance with our fairness doctrine and for the broadcast of cigarette commercials and lottery information -- all of which positions have been rejected by the Supreme Court. More constructively, in my opinion, they have defended the right -- largely at the network level -- to present news, commentary, convention coverage, and documentaries without review by government as to truth or adequacy of the contents of such broadcasts. The Commission has honored these claims, subject only to observance of the fairness doctrine and inquiry in cases of substantial allegations of rigging or staging of purported news events. I think the networks and the profitable and powerful stations should recognize that if they allow the Commission to interfere with the freedom of small, unconventional stations -- on an infrequent basis and in the context of material having redeeming social value -- to broadcast language that offends some, then those in our society who think that all must conform to their standards will be encouraged to seek further restrictions on broadcast programming. Their next target will quite probably be -- if it isn't already -- what they regard as sexually suggestive or provocative material, whether in dialogue, costume, dance, or other form.
They are likely to push on to attack matter which offends their sense of propriety as to morals, political opinion, behavior, etc. Of course the majority will assure us that they will not countenance any such extension of the doctrine implicit in their action here, but if those they apparently think they are serving are to be assured that under no circumstances will they or their children be exposed to the broadcast of single words they regard as offensive, isn't it logical to expect this constituency to demand protection against the presentation of offensive ideas or the depiction of offensive conduct. After all, the [*840] impact of ideas and the force of example are much greater than the consequences of hearing an occasional four letter word. And it is discouraging, after our nearly 200 years of democracy, that so many are so ready to silence or suppress that of which they disapprove. I do not expect any rush of commercial broadcasters to the defense of those in their industry whom they probably regard as troublemakers, but it would be encouraging to see the National Association of Broadcasters come forward instead of leaving the defense of the perimeters of freedom to the American Civil Liberties Union. I can understand the hesitancy of the industry's leaders -- they are worried about estranging a substantial part of their audience, not to mention powerful Members of Congress who have spoken out on this issue. But I think the stakes in this struggle may be more important for broadcasting than most of those matters which engage the attention of the NAB.
For that matter, it is not easy for me to defend four letter words. I find them offensive in most situations, and certainly do not seek the removal of all barriers to their use in broadcasting. I would be prepared to consider serious sanctions against a station whose operations revealed a pattern of substantial, repeated use of patently offensive language in contexts involving no redeeming social value. Cf. Palmetto Broadcasting Co., 33 F.C.C. 250 (1962). I might, in some circumstances, support lesser penalties for even isolated use of such language without reason or justification. But when dedicated broadcasters who try to use radio to bring a wider than ordinary range of information and entertainment to their audiences occasionally broadcast such language because in their judgment it is important in the context of the programming -- or inadvertently permit it use under circumstances where their policies would normally require its deletion -- I do not think it serves the public interest to penalize them. Indeed, I think to do so violates the act and the Constitution.
KRAB and the Pacifica stations are supported directly by portions of their audiences who pay subscription fees to keep them in operation -- while the rest of the public can, if they wish, listen from time to time. The Commission was questioned last December by the Senate Subcommittee on Communications about the broadcast of a poem on Pacifica's Los Angeles station and the grant to Pacifica of a construction permit for a new station in Houston. Pacifica has broadcast a tape of that hearing over at least two of its stations since then, and I have received a number of letters from regular listeners to those stations. These are not sensation seekers who tune in hoping to hear salacious or smutty material, but mature people who clearly value the educational, cultural, and other programming these stations present. Many of them listen very little to other stations, and indicate that these stations mean a great deal to them. They note the occasional broadcast of language which they recognize offends some who hear it, but contend that they are more offended by the conditions which lead to the occasional use of such language in records, poems, plays, discussions, and news coverage presented over the air than by the words themselves. They do not contend that others should listen to matter the latter find offensive, but do object to attempts to interfere with the freedom of the stations to continue to broadcast programming which they value and want to continue to receive.
[*841] (Letter to Jack Straw Memorial Foundation, radio station KRAB-FM, Seattle, Wash.)
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
KRAB-FM
I fully support Commissioner Cox's detailed and thoughtful dissenting statement in this case. I, too, believe the majority's decision to give KRAB a short-term, 1-year license renewal as a punishment for the thoughts, ideas, and forms of expression used by Rev. Paul Sawyer on one of KRAB's programs is misguided and inconsistent with those fundamental principles of free speech on which our society is based. I shall have more to say at a later date about FCC censorship of allegedly indecent thoughts and language over the broadcast medium in general, and about this specific case in particular. I think it important, however, that the public understand a few brief but important facts of this case.
First, it should be made clear that the Commission today punishes a broadcaster for the content of his programming -- not because he violated any public, well-defined Commission rule or statute of Congress, but because, in the broadcaster's and not the FCC's opinion, he violated his station's own internal policy. Presumably if a station had an internal policy against criticism of the Government and one of its announcers accidentally violated that policy, the precedent established by the majority would seem to indicate a 1-year renewal for the offending station.
Second, although Congress has given the Commission the authority to impose sanctions for the broadcast of "obscene, profane, or indecent" language (18 U.S.C. 1464), the Commission has not even attempted to apply that statute or determine whether the words or thoughts expressed over KRAB violate those statutory guidelines. In fact, the Commission never obtained a transcript of the offending program. It has no way of knowing whether or not the speech in question occurred in a socially redeeming context. Apparently the majority's position is that certain words are per se so offensive that any consideration of the context in which they were spoken is irrelevant.
Third, the incident involved was an isolated one. Due to the length of the program (30 hours), only portions of it were auditioned by the manager, Mr. Lorenzo Milam, before broadcast. The tape was removed from the air shortly after Mr. Milam heard the offending words. The majority does not contend that the incidents complained of have occurred repeatedly, or that the language in question falls outside the protection of the Constitution or FCC rules. To penalize a licensee for an isolated incident (even if it did violate our rules, which apparently it did not), is a marked departure from established Commission policy. In Pacifica Foundation, 36 F.C.C. 147, 148 (1964), we said that in matters of this sort we were "not concerned with individual programs." Rather, our "very limited concern" was whether, "upon the overall examination, some substantial pattern of operation inconsistent with the public-interest standard clearly and [*842] patently emerges." We refused to take punitive action for "a few isolated programs." Our position was clear:
The standard of public interest is not so rigid that an honest mistake or error on the part of a licensee results in drastic action against him where his overall record demonstrates a reasonable effort to serve the needs and interests of his community. (36 F.C.C. at 150.)
The majority does not even consider whether the incident involved an "honest mistake or error," as the facts clearly indicate. And KRAB's "overall record" is clearly superior to most other comparable stations.
Fourth, the public should know that KRAB is not some marginal operation which pumps out aural drivel and profit-maximizes with high rates of commercialization. KRAB-FM is a noncommercial station supported by contributions from its listeners. It devotes over 95 percent of its broadcast day to the performing arts, public affairs, news, and general educational programming. How many other stations can boast of such a record? Within recent years, this Commission has renewed the licenses of a station broadcasting 33 minutes of commercials an hour, a station that broadcast no news, and a station that defrauded advertisers out of thousands of dollars. Today the majority punishes a noncommercial station for a portion of a single program, broadcast in its attempt to provide its listeners with unconventional programming -- and ignores one of the more outstanding broadcast records in the country.
Fifth, the Commission makes reference to "complaints from the public" concerning the programming of KRAB. Yet a quick check of the FCC complaints file on KRAB shows far more support than criticism. Here is a sampling of a few comments: "Fine and unusual broadcasting record of KRAB-FM," "no comparable radio programming," "urbane, sophisticated, and intellectually provocative," "programming is of extraordinary interest," "you need the freedom to broadcast important and controversial programs * * *." I do not believe any station can broadcast provocative and challenging programming without pushing at the borders of the conventional. When that happens, there will always be some who will be offended. There will always be those who would like to silence others -- to blank out the ideas and thoughts they present.
That is not the American way. This Commission simply cannot respond to such pressure.