Red Zebra responds


Dan SWashington Redskinsnyder’s Red Zebra Broadcasting is facing a license challenge for WWXX-FM for mentioning the name of its co-owned NFL football team on the air. RZB and its attorneys acknowledge that there is a proper place to discuss this issue and that there are repercussions to consider.

In the filing, RZB counsel Wiley Rein acknowledges the public debate over the name and makes no suggestion that the debate is inappropriate.

But Wiley Rein states that the FCC is clearly an inappropriate venue. In fact, said there is no government agency with the power or expertise to ban the use of the operative word: “Redskins.” Just as there is no agency that can confer its blessings on the word and ban the right to challenge its use.

The FCC’s job, in a license renewal, is simply apply the appropriate standards of the Communications Act under Section 309(k) and determine: “(i) the station has served the public interest, convenience, and necessity; (ii) there have been no serious violations of the Communications Act or Commission rules; and (iii) there have been no other violations by the licensee of the Act or Commission rules which, taken together, constitute a pattern of abuse.”

Not only has the license challenge failed to make such a case, Wiley Rein says that “…it is clear from the Objections themselves and the press statements that accompanied their release that they were not filed in good faith and are a crass misuse of the license renewal process as part of a broader strategy to extort broadcasters to stop using the term ‘Redskins.’”

In the filing, WR says that the word “plainly” fails to fit the narrow definition of “obscenity,” “indecency” or “profanity. ” Nor does it fit under the term “hate speech” – and even if it did, it would be beyond the FCC’s regulatory reach. It also objected to personal attacks on Snyder, which it called “shameful and baseless.”

WR stated that what the challenge seeks is a “…limitless expansion of the government’s censorial powers.”

And there is a deeper reason for denying a hearing on the topic and throwing out the license challenge, and refusing to entertain any further similar challenges. This is where the repercussions figure in.

“John F. Banzhaf III, the individual responsible for orchestrating the Objections, has publicly threatened to attack the renewals of, and even extract settlements from, stations throughout the country whose broadcasts accurately use the Washington Redskins’ full name.  The Commission should expeditiously grant the Station’s renewal application and signal that it will not be a party to Banzhaf’s attempt to abuse the licensing process to gain leverage to silence accurate, truthful and fully-protected speech on the airwaves.”

RBR-TVBR observation: Here’s what we said 10/1/14 – and we stand by these remarks today:

It seems to us that the FCC’s main function should be making sure radio stations are living up to their regulatory duties, making sure their facilities are properly licensed, safe and not interfering with other stations or services.

Deciding nuanced debates about which words are derogatory and which are not, or getting into First Amendment issues, would not seem to be the FCC’s area of expertise.

We will point out, by way of evidence, that the FCC’s handling of its job of being the indecent content police officer through the years has been inconsistent at best and downright incompetent at worst, to the point where at the moment indecency policy is highly litigated, completely muddled, and virtually unenforceable
Do we really want to add assessing sports nicknames to the FCC’s slate of responsibilities?

Maybe the court system would be a better bet.