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41 F.C.C.2d 919


APRIL 11, 1973



          The Commission by Commissioners Burch (Chairman), H. Rex Lee, Reid and Wiley, with Commissioner Hooks concurring and issuing a statement and Commissioner Johnson dissenting and issuing a statement, issued the following NEWS RELEASE:



Sonderling Broadcasting Corporation, licensee of WGLD-FM, Oak Park, Ill., has been notified by the FCC of its apparent liability for forfeiture of $2,000 under the provisions of Section 503(b)(1)(E) of the Communications Act because it violated Section 1464 of Title 18 of the United States Code by broadcasting obscene or indecent matter on its "Femme Forum" shows of February 21 and 23, 1973.

Section 1464 provides that anyone who "utters any obscene, indecent or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both." Under Section 503(b), a forfeiture not to exceed $1,000 can be assessed for each day on which a violation occurred, with a maximum of $10,000 in any notice of forfeiture.

At the time of the violations, WGLD-FM was using a "topless radio" format in which an announcer takes calls from the audience and discusses mainly sexual subjects.  The February 21 program dealt with the topic of "How do you keep your sex life alive?" and some callers suggested oral sex.  The February 23 program was about oral sex and consisted of explicit exchanges in which female callers spoke of their oral sex experiences.

The Commission, recognizing the licensee's right to present provocative or unpopular programming which might offend some listeners, emphasized that it was not saying that sex is a forbidden subject on the broadcast medium.  It said that it was confronted with a show where the interviewer could readily moderate his handling of the subject matter so as to conform to the basic statutory standards.

The Commission said that in the past it had "scrupulously refused" to decide which programs were consistent with the public interest and which were not, even when confronted with the most distasteful programming, because that would be "flagrant censorship." To try to rule off the airwaves the "coarse or the vulgar" would also be an effort at  [*920]  censorship, but here the standards are strictly defined by law, the Commission said, and the broadcaster must shun the "obscene or indecent."

The Commission pointed out that the Supreme Court has defined obscenity in the following terms: "Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court has also ruled that it must be established that the dominant theme of the material appeals to a prurient interest in sex; that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and that the material is utterly without redeeming social value.

In determining whether broadcast material meets the statutory test, the special quality of the medium must be taken into account, the Commission said.  Thus while the criteria for judging whether some broadcast material is absence or indecent remains the same, it is crucial, the Commission stressed, that these criteria are being applied in the broadcast field, "a medium designed to be received and sampled by millions in their homes, cars, on outings, or even as they walk the streets with transistor radio to the ear, without regard to age, background or degree of sophistication."

If broadcasters can engage in commercial exploitation of obscene or indecent material, the Commission noted, an increasing number will do so for competitive reasons.  It said that "topless radio" formats like "Femme Forum" are designed to garner large audiences through titillating sexual discussions, that the explicit material used in the two February shows "is patently offensive to community standards for broadcast matter," that the dominant theme was clearly an appeal to prurient interest because the announcer coaxed responses that were designed to arouse sexual feelings, and that there was no redeeming social value because this was not a serious discussion of sexual matters, "but rather titillating, pandering exploitation of sexual materials."

The Commission said that as in the 1970 WUHY-FM case (the licensee was assessed a $100 forfeiture for indecent programming because of an interviewer's use of various "patently offensive" words) there is an alternative ground for action.  Pointing out that in WUHY-FM its construction of the term "indecent" as used in 18 U.S.C. 1464, constituted a different standard from "obscene" in the broadcast field, the Commission found that even if the "Femme Forum" material did not appeal to a prurient interest, it warrants the assessment of a forfeiture because it is within the statutory prohibition against the broadcast of indecent matter.

The Commission said as in WUHY-FM it had a duty to act to prevent the erosion of the country's broadcast system.  It said that the $2,000 forfeiture is appropriate for willful or repeated violations, and while there has been no judicial consideration of obscenity or indecency in this specific broadcast situation "we are not fashioning any new theory here."

The Commission said that it is not its function to impose upon broadcasters and listeners its personal standards of good taste, but neither is it its function to ignore the presentation of programming  [*921]  that violates a criminal statute.  "To shirk our responsibility would be to ignore the clear statutory mandate of Congress and to drastically curtail the usefulness of radio for millions of people," the Commission declared.

The Commission said that it recognized that "we are not the final arbiters" in this sensitive field, therefore, "we welcome and urge judicial consideration of our action."

Sonderling has 30 days to either pay or contest the forfeiture.

In a dissenting statement, Commissioner Nicholas Johnson contended that the majority of the Commission was engaging in a form of censorship "by penalizing a station because of the content of one of its programs." He said that this conduct was "arbitrary... unwise... and unconstitutional."

Noting that he found portions of the programs transcribed in the Commission's opinion "extremely distasteful," Commissioner Johnson pointed out that he had refused to join in a tape monitoring session because he did not believe the Commission "should sit as a program review committee -- imposing its tastes upon both broadcasters and the American public." He said the only issue for him, as a government official, was freedom of speech.

Commissioner Johnson noted the difficulties involved in defining "obscenity" and "indecency." Reviewing court cases on the subject, he argued that the majority failed to apply properly the legal standards of previous court rulings.  He said that courts, not administrative agencies, should act in matters where a determination must be mace between "social demands and the individual's most precious right to free expression."

Commissioner Johnson concluded that "only the Justice Department should be allowed to initiate proceedings of this nature, and only the courts should be allowed to resolve the ultimate question whether a given program is or is not protected by the First Amendment.





During my seven years at the Federal Communications Commission, I have repeatedly urged my colleagues to impose limited affirmative programming responsibilities on the commercial broadcasting industry.  The "fairness doctrine," for example, demands that broadcasters present all sides of controversial issues of public importance.  See, e.g., my dissent to Chevron Remand: Fairness Doctrine Ruling, 37 F.C.C. 2d 528 at 533 (1972). I have argued that the broadcasting industry's policy of refusing access both to members of the public and to their elected representatives contravenes both the public interest and the Constitution.  See, e.g., my dissents to Business Executives Move for Vietnam Peace, 25 F.C.C. 2d 242 at 299 (1970), rev'd, 450 F. 2d 642 (D.C. Cir. 1971), and Availability of Network Programming Time to Members of Congress, F.C.C. 72-1194, -- F.C.C. 2d -- (1972).  And I have urged my colleagues to inject minimum precision into the statutory requirement that broadcasters serve the "public interest, convenience or necessity" by demanding that these broadcasters  [*922]  present a minimum amount of news and public affairs programming.  See, e.g., Oklahoma Renewals, 14 F.C.C. 2d 1 (1968).

The F.C.C. majority has steadfastly declined to impose such affirmative programming obligations upon the commercial broadcasting industry, contending that such requirements would approach censorship and preferring, instead, to leave programming decisions to the broadcaster's "discretion."

Thought I have argued that this Commission should impose affirmative programming obligations upon broadcasters -- obligations of the sort upheld by the Supreme Court in the face of Constitutional attack, see Red Lion Broadcasting Co. v. F.C.C., 395 U.S 376 (1969) -- I have never urged my colleagues to engage in program censorship, to outlaw specific kinds of programming.  For, whereas affirmative obligations tend to enhance the public interest by fostering program diversity and coverage of all sides of controversial issues, see Red Lion, supra, negative sanctions in the form of outright programming bans only tend to reduce such diversity, thus raising the very specter of censorship which the F.C.C. majority has always claimed to fear.

Today, that majority engages in precisely this form of censorship by penalizing a station because of the content of one of its programs.  The majority's conduct is not merely arbitrary and unwise as a matter of public policy; I believe it also to be unconstitutional.  I dissent.

Station WGLD-FM, Oak Park, Illinois, broadcasts a talk show called "Femme Forum" -- a program wherein an announcer talks over telephone with women callers about a variety of subjects, including sex.  Prior to its decision to issue a Notice of Apparent Liability Against Sonderling Broadcasting Co., WGLD's licensee, the F.C.C. majority listened, in closed session, to a tape a selected excerpts from these talk shows, I declined to participate in that monitoring session because, as I shall explain, I do not believe that this Commission should sit as a program review committee -- imposing its tastes upon both broadcasters and the American public.  I personally find those portions of the tape which are repeated in the majority's opinion to be extremely distasteful.  I would not engage in such conversation privately or publicly, let alone over a radio station.  Were I a station manager I would endeavor to keep it off the air.  But those are not the choices or roles before me.  The only issue before me is whether I should use my position as a U.S. Government official to bring the full power of that government to bear to "make a law abridging the freedom of speech" -- to borrow from the language of the Constitution's First Amendment.

The majority holds, in essence, that the program segments of "Femme Forum" they have taken out of context are obscene.  Even if not obscene, adds the Commission, the programming is "indecent." In what appears to be a subtle effort to pass the buck, the majority contends that Congress, through the Communications Act of 1934, has directed the Commission to impose fines upon broadcasters who have engaged in obscene or indecent programming.  Whether the Communications Act demands that the F.C.C. act as it has today is not clear.  If that statute does so empower and direct the F.C.C., then the Constitutional infirmities inherent in today's decision are attributable  [*923]  to both the Congress and the Commission.  That Congress must share the blame for today's decision is made more clear by the fact that the Commission majority very probably would not have acted as it has absent severe Congressional pressure to do something in this area.

My difficulties with the majority's reasoning are many.

First, though "obscene" expression is not protected by the First Amendment, see Roth v. United States, 354 U.S. 476 (1957), expression which falls outside the obscenity category is, except in rare cases which I shall discuss, not subject to governmental regulation.  The majority admits that "indecent" expression is something less than obscenity, yet the majority nevertheless asserts that it may outlaw indecent expression.

Aside from constituting a blatant attempt to regulate expression which is protected by the First Amendment, the majority's approach poses additional problems because nowhere does the majority come forth with a precise definition of its concept of "indecency." The majority asserts, rather, that indecent programming is programming that meets all the indicia of obscene programming except that it need not appeal to the prurient interest.  The "definition" of obscenity is, itself, very vague and ad hoc.  And if obscenity is so vaguely defined, then the "indecency" variant promulgated by the majority is a hopeless blur.

In such circumstances, broadcasters, perforce kept in the dark as to the types of programs they can and cannot broadcast, will obviously steer as wide of the "indecency" mark as possible, declining to carry programming which might meet the majority's amorphous "test" as well as programming which is obviously protected by the Constitution.  In short, the vagueness problem inherent in the majority's approach is accompanied, as it always is in the First Amendment area, by the vice of unconstitutional over breadth.  See, e.g., my dissenting statement in WUHY-FM, 24 F.C.C. 2d 408 at 422 (1970); see also Note, Conspiracy and the First Amendment, 79 Yale L.J. 872 at 884-886 (1970).

Second, the majority holds that while "Femme Forum" involved indecent programming, it also involved obscene programming -- programming which the majority believes to be clearly beyond the protections afforded by the First Amendment.  There are numerous problems with this aspect of the majority's opinion.

The majority claims to define "obscenity" in the manner set forth by the Supreme Court in Roth, supra, and Ginzburg v. United States, 383 U.S. 463 (1966). The majority then suggests that this definition must somehow be molded to meet the peculiar nature of the broadcasting medium.  In effect, the majority appears to argue that expression which would not be considered obscene if contained in a book becomes obscene on television or radio because of the "obtrusive" nature of the medium.  The majority thus presents broadcasters with a "continuum definition" of obscenity; with this approach I cannot agree.

If there exists a definable category of expression called "obscenity," that category does not expand as the medium through which it is communicated changes.  While the Supreme Court has suggested that some  [*924]  forms of sexually explicit, but non-obscene, expression might be subject to regulation if that expression should assault an individual's rights to privacy, see, e.g., Redrup v. New York, 386 U.S. 757 (1967); Cohen v. California, 403 U.S. 15 (19 ), the Court has also made clear that such privacy rights are not "assaulted" unless the expression is communicated in a manner "so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it." Redrup, supra at 769.  First Amendment rights may not be abridged, then, simply because some persons may find offensive forms of expression which they could readily avoid.

On this theory, assuming for the moment that the F.C.C. should be engaged in this sort of programming regulation at all, sexually explicit, but nevertheless non-obscene material could be regulated only if the broadcast medium makes it impossible for an unwilling individual to avoid exposure to the particular expression.  That is not the case when the offending speech is contained in a single, clearly identified program which may be accepted or avoided in its entirety.

I believe the F.C.C. has no business regulating non-obscene material.  I see great dangers in allowing this Commission to regulate even material which might properly be deemed "obscene." But in this instance the majority even failed properly to apply the Roth test to the facts before us, and thus erred in concluding that the instant programming material was obscene.  Roth demands, inter alia, that the expression, taken as a whole, be patently offensive by contemporary community standards.  In the instant case, the majority focuses only on portions of the challenged program, makes absolutely no attempt to delineate the relevant "community" in question, and makes no effort whatsoever to determine the nature of the relevant community's standards.  As a result, it seems rather bizarre for the majority to conclude that the "Femme Forum," taken as a whole, is patently offensive to an undefined community with unknown standards when it knows nothing of (1) the whole program, (2) the community, or (3) its standards.

And, indeed, such a conclusion becomes even more remarkable given the fact that WGLD-FM's "Femme Forum" has, according to at least one television columnist, become the top rated radio program in the Chicago area.  See Clarence Petersen's column in the Chicago Tribune, March 12, 1973.  Though a growing number of citizens are obviously not offended by this sort of programming, the F.C.C. majority has apparently determined that they ought to be.

Surprisingly, Mr. Petersen reports that far from appealing to anybody's prurient interests, "Femme Forum" presents "lots of banal nonsense, lots of common sense, most of it so common as to be a bore." Mr. Petersen adds: "At times Moore [the show's announcer], former record promoter and disk jockey, asked challenging questions.  At other times his questions indicated that he had not even been paying attention to what the women were saying.  I suspect that even he was getting  [*925]  bored from time to time." And so it appears that the F.C.C. majority has vented its spleen not against "titillating" (their favorite term) sexual material capable of arousing one's prurient interest, but, rather, against mundane -- even bland -- discussions that might offend some, strike others as bizarre, but which clearly appeal to a growing audience of listeners who are, I suppose, curious.


 [*926]  Finally, while I do not believe that the F.C.C. may, constitutionally, censor non-obscene expression, and while the majority could not properly conclude on the record before it that the instant expression was obscene, I also have great doubts about whether this Commission should take action even in a case where programming might be termed obscene under the appropriate Constructional test.

Because the term "obscenity" is so elusive, so incapable of precise delineation, and because governmental regulation of so amorphous a category of expression creates a tension between social demands and the individual's most precious right to free expression, I believe the courts -- and not administrative agencies -- are more competent to determine whether particular forms of expression fall within the unprotected category.  While I certainly do not condone programming such as that before us, I am nevertheless extremely reluctant to use my power as a federal official to impose my tastes upon anyone, let alone upon an entire nation.  The F.C.C. majority, however, does not entertain such hesitations, preferring instead to sit as an omniscient programming review board, allegedly capable of deciding what is and is not good for the American public to see and hear.

The dangers in such an approach are obvious.  But they are amplified ten-fold when the F.C.C. -- the agency which possesses the power to grant and deny all broadcast licenses -- plays the Big Brother role.  For it seems patently clear that any F.C.C. pronouncement against a particular kind of programming will cast a pall over the entire broadcasting industry -- not so much because these broadcasters fear the imposition of fines, but, rather, because they fear the potential loss of their highly profitable broadcast licenses.  As a result, F.C.C. regulation of obscenity is dangerous not only because this agency is, as the instant case painfully reveals, incompetent to deal properly with the problem, but also because such regulation creates a "chilling effect" of enormous proportions on all forms of broadcast expression.

In a real sense, then F.C.C. regulation in this area is akin to the imposition of prior restraints on expression absent the sorts of judicial scrutiny and due process protections which the Supreme Court has held to be necessary in this highly sensitive area.  See, e.g., Freedman v. Maryland, 380 U.S. 51 (1965); Bantam Books v. Sullivan, 372 U.S. 58 (1963). In my view, only the Justice Department should be allowed to initiate proceedings of this nature, and only the courts should be allowed to resolve the ultimate question whether a given program is or is not protected by the First Amendment.

Under the majority's approach, however, a judicial determination will become necessary only if Sonderling appeals.  In the meantime, extensive damage will have already been done to the First Amendment.  F.C.C. action in this area should be preceded, and not followed, by judicial review.  For it is, after all, the courts which have enunciated the "obscenity" doctrine, it is the courts which are most competent to apply that particularly judicial doctrine, and the F.C.C., as today's decision reveals so well, is in no way comparable to a court.

I dissent.


In this action, the Commission has determined to assess a statutory forfeiture against a broadcaster on the basis of its transmission of sex-oriented talk shows about which this agency has received an onslaught of complaints.  My concurrence is short and obvious.

The precarious balance between First Amendment rights and legitimate governmental review of expression in the public interest rests on a finely honed fulcrum.  The preponderant Constitutional tilt towards the widest possible liberty in this area is weighted by nothing less than the strength of freedom.

But, freedom of speech is a multi-edged sword.  Brandishing its right to voice grievances, the public -- the real proprietor of the national airwaves -- and the public's elected representatives have vociferously spoken out to this Commission against broadcast programming which it considers disgraceful, of little speech value, and wasteful of the limited radio spectrum.  Indeed, contingent on a definitive court interpretation, the matter complained of could be in conflict with the federal statute prohibiting the broadcast of obscene and indecent material.  (18 U.S.C.   1464) As public servants, the Commission, while cognizant and rueful of any stigma of censorship, has a legal and moral obligation to be responsive to the causes of public outcry and a duty to act to the extent permitted by law.

Mindful of all of these circumstances, yet distressed by the nature of the subject with which we deal, I find justifiable the limited action taken here for the reasons amply set forth in the majority opinion.  n1

n1 Letter to Sonderling Broadcasting Corporation,     FCC 2d    , (FCC 73-401, April 11, 1973).

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