Television and radio stations are now on notice that repeated violations of the Federal Broadcast Indecency Statute (18 USC 1464) may lead to license revocation.
The Federal Communications Commission (3 April 2003), by a vote of 4-1, issued a Notice of Apparent Liability (NAL) against Detroit radio station WKRK-FM for egregious violation of 18 USC 1464, proposing a $27,500 fine. The fine is a punishment against the station’s owner, Infinity Broadcasting, based on “explicit and graphic sexual and excretory references” in material that aired on the station on 9 January 2002 between 4:30 and 5 p.m.
The FCC found that the material “was extremely lewd and vulgar, and … it appeared to have been used to pander, titillate and shock.” Because of this, the FCC more than tripled the usual fine of $7,000 to the statutory maximum of $27,500. It also said, “Additional serious violations by Infinity may lead to a revocation proceeding,” and put broadcasters on notice “that the Commission would not hesitate to adopt strong enforcement actions in the future, including possible license revocation.”
[Note: The NAL against WKRK-FM can be found at this link on the FCC’s Web site (MS Word document). This includes a transcript of the WKRK-FM broadcast, with all of the “explicit and graphic sexual and excretory references.”]
FCC Commissioner Michael Copps dissented from the decision, saying that the FCC “should initiate a hearing to determine whether the WKRK-FM license should be revoked.” Commissioner Copps called the decision “a financial slap on the wrist [that] does not adequately reflect the seriousness of the station’s actions.”
The original indecency complaint against WKRK-FM was filed Right to Decency, Inc., based in Fraser, Mich, with the assistance of Morality in Media.
WKRK’s response to the FCC did not deny that the program was patently offensive or indecent. Instead, the station attacked the validity of the FCC’s definition of indecency in broadcasting.
MIM General Counsel Paul J. McGeady prepared and filed the response of Right to Decency to the station’s position, assisted by Mr. Richard Thompson, Chief Counsel of the Thomas More Law Center of Ann Arbor.
The Right to Decency Response to the station made these key points: First, the Supreme Court has made it clear that the First Amendment does not protect indecent material in the broadcast medium. Second, the Supreme Court has rejected vagueness challenges to the Federal broadcast indecency law. Third, the station asked the FCC to do something beyond its power by, in effect, overruling the Red Lion broadcast spectrum scarcity case. Fourth, the Supreme Court said in Pacifica that enforcement of the broadcast indecency statute is not censorship. Fifth, it is not necessary to show a proximate link between broadcast indecency and harm to children—it is enough that Congress believes or finds that such harm may exist now or in the future.”