MESA, ARIZ. — According to the owner of a 6kw Class A FM in the town of Benson, some 45 minutes east of Tucson along I-10, possession of child pornography shouldn’t be a crime.
In fact, this station’s owner feels so strongly about it that in the wee hours of the morning, he’s running public service announcements stating the following: “Never keep paper pictures, tapes, or films of naked juveniles where anyone else can find them.”
It’s a “public service message” from Paul Lotsof. Could such a PSA, which has aired on KAVV for two years but just recently gained wider attention thanks to Facebook, claim Lotsof of his license? We asked one top D.C. communications lawyer for his thoughts on the issue.
Lotsof’s KAVV-FM “Cave 97.7” airs a Classic Country station. In it, Lotsof instructs individuals that possess such material “to always use an external drive, and hide it where nobody will ever find it.”
He doesn’t agree with Arizona’s laws on child pornography. But could airing ways to prevent getting caught — as oppose to his views on the law — eventually lead to the loss of ownership of KAVV?
Not right now, says one Communications Law attorney who spoke with RBR + TVBR.
In Arizona, “Sexual Exploitation of a Minor” is a Class 2 Felony, and according to KVOA-4 in Tucson, which featured a report on this story May 9, it carries a 10-24 year prison sentence per violation.
KVOA reporter Zach Briggs interviewed Lotsof at KAVV’s studios and offices. Lotsof did not allow Briggs to enter the station; the interview was filmed with Lotsof speaking from behind the building’s front door.
When pressed to comment on the possession of pictures of nude boys and girls, Lotsof said, “They’re pictures of whatever you want to call them … they’re pictures of minors and you go to prison for the rest of your life for possessing them.”
He seems to disapprove of this, saying, “There’s no picture in the world that’s that dangerous.”
Lotsof continued, “The difference is, in one case, you’re molesting children and abusing them, causing children to do things that are not natural for children to do. [In] the other case, they’re just possessing pictures. There’s no connection between those two.”
The Facebook post that spread the word about the PSA has since been removed.
KVOA asked Lotsof if he possesses child pornography. He said he did not.
But, he also said that he would not admit to it if he did.
That’s where the FCC could finally get involved, even as a Change.org petition to “shut down Cave 97.7 for illegal broadcasting,” which is not accurate as there is nothing illegal about the PSA, has gathered 1,000 supporters as of Noon Pacific on Wednesday (5/10).
“Has he been convicted?” asks Scott Flick, partner at Pillsbury Withrop Shaw Pittman LLP. “If the nature of the PSA were, for example, that the laws are ridiculous, he should be charged. But, if not, then this is protected by the First Amendment.”
It’s a fuzzy area, and somewhere between advocating for a change in the law, as he suggests individuals with child pornography “hide their stuff.”
“It all depends on how Arizona law is written,” Flick says. “If the PSA ended with a statement that said, ‘ …. because kids shouldn’t see it,’ then you may have a case. To this extent, it’s, ‘Don’t put it any place where law enforcement can find it.’ It’s up to Arizona how to judge this.”
The most likely route Arizona can take is by charging Lotsof with the promotion of illegal activity.
But, “the odds of successfully enforcing it goes down to precise facts,” Flick notes.
What happens next for Lotsof is critically important for those looking to strip him of KAVV’s license.
“If he is convicted of possession of child pornography, he would lose his license,” Flick says. “This is a step lower … but I am sure they’re getting a search warrant and looking for more.”
Until a conviction, the FCC has nothing on which to act for opening a license revocation hearing.
“This is several steps down the Pike,” Flick says.
But, it also conjures up similar situations radio stations face when dealing with marijuana advertisements or PSAs regarding marijuana legalization.
“A few years back there were radio programs focused on changes in marijuana laws,” Flick recalls. “They talked about the need to legalize marijuana. It’s a similar issue. You can’t advertising marijuana, and saying you need to legalize it is protected speech. Balancing that is the challenge.”
RBR + TVBR