Washington Beat

What is indecency, anyway?

Entercom's (N:ETM) WGR-AM in Buffalo was subject to indecency complaints from local resident Michael P. Palko. However, the 5/8/00 broadcast in question was not found to be actionably indecent by the FCC's Enforcement Bureau.

A WGR air personality used the word "prick" when answering a caller's question about what is allowed to be said over the air. The FCC held that the intention was not to "describe or depict a sexual activity or organ, but was used instead as a vulgar insult." Likewise, the work "piss" escaped further FCC action.

Meanwhile, Mancow Muller's show aired on WKQX-FM Chicago 3/12/01 was found by the FCC to contain actionably indecent material. Owner Emmis Communications (O:EMMS) has been ordered to fork over $7K.

Often, complainants in indecency cases are not in possession of sufficient evidence to get a "conviction," but in this case the individual produced a tape which captured the 8:00A-8:10A portion of the program, which featured the offending material, a rap song called "Smell My Finger." (MullerÕs didnÕt personally utter any offending material.) The FCC held that the sexual content of the song was unmistakable.

RBR observation:

The WGR incident is instructive as to the difficulty faced by anyone who would attempt to regulate speech in a society where freedom of speech is one of the most cherished rights.

In particular, it is interesting to look at the famous George Carlin "Seven Dirty Words" routine, which has often been the starting point for determining when broadcasts cross the line into indecency. Both the words "prick" and "piss" figure in the routine.

Prick is part of Mr. Carlin's list of two-way wordsÑwords which are perfectly all right in some contexts, but not in others. Other such words are cock and balls. Regarding prick, Carlin notes that it's okay to prick your finger, but don't...well, you can probably guess the rest.

What's interesting is that the WGR host was not talking about pricking his finger. Explaining to a caller what kinds of speech was allowable, he said, "You can say prick on the air, you can even call someone a sawed-off little prick on the air." The station was exonerated for using the word even though it was clearly leaning toward Carlin's category two use, which he would no doubt have expected to have bleeped out had he uttered it the same way on the "Tonight Show."

Piss, on the other hand, was one of Carlin's "heavy seven," words which were not allowed on TV no matter what. It would appear that in the thirty or so years since Carlin's routine was written that piss has become acceptable. We quote the FCC: "We first find that the hosts' use of the word 'piss' in conjunction with the phrases 'pissed at' and 'pissed off' is clearly not indecent. Both phrases are commonly used slang terms indicating or describing a sense of anger."

Now, if the WGR host had said that someone had pissed on a tree, that may well have been held to be indecent in that it described an excretory activity.

But the bigger point is that when targeting indecent speech, one is definitely shooting at a rapidly-moving target. The transformation in status of the word piss is but one example of changes over the years. Another famous example was the requirement that the expectant Lucille Ball in the 50s be described on air as "with child" rather than "pregnant." And the decision to equip American TV couples with nothing but twin beds.

The government's job is to protect freedom of speech, not play national nanny and decide what we are allowed to hear and what not. As a parent, it is my job to monitor what my children hear, and to teach them what is acceptable and what is not.

The FCC has proven that it is all but impossible to write coherent indecency regulations, and it is even more difficult to fairly enforce them. The government should simply vacate the thankless task of trying to find a way to do this undoable job.

This said, it is sad that some broadcasters are so bankrupt in the taste department that all they can do is try to push the indecency envelope to the exclusion of anything else. It is even sadder that such a large segment of the audience actually finds this entertaining. However, it is heartening that even though it's a large audience, it's still just a small fraction of all radio listeners. The shock jocks have not cornered the market by a long shot.

If you are offended by a station's programming, don't call the FCC. Call the station. Believe me, they want listeners, and if enough people tell them their programming stinks, they'll get the message. Better yet, call the program's advertisers. They'll get the message real fast.

And there is an even simpler and more immediate remedy. If you are like me and find this kind of programming boring as well as distasteful, you don't need to run around trying to fit padlocks and filters onto the Bill of Rights. You can do what I do.

Change the channel.

Buckley tries to unbuckle CCU TV JSA

Clear Channel's (N:CCU) acquisition of Ackerley resulted in, among many other things, a six-radio-station, two-television station cluster in the Monterey-Salinas-Santa Cruz market. Clear Channel brought the radio stations to the table, and Ackerley brought the TVs--one owned, KION-TV and the other, Seal Rock Broadcasters' KCBA-TV, related via an time brokerage agreement (TBA)/joint sales agreement (JSA).

FCC approval for the transfer was conditioned on elimination of the LMA/JSA--the Commission determined that Ackerley-CCU (the deal closed 6/14) was programming over 15% of KCBA, making it attributable and over the limit. The Ackerley/CCU relationship with KCBA was ordered to represent less than 15% of the programming schedule on the station.

"Yet Ackerley's response to this order," wrote attorneys for in-market competitor Buckley Broadcasting in an FCC filing, "was not to cease the joint sales efforts, but instead to simply put a new name on the agreement, and continue right on selling all of the broadcast time on KCBA with absolutely no commitment to stay out of the programming of that station."

According to Buckley, under the new agreement struck by Clear Channel and KCBA licensee Seal Rock, "KION employees will continue to sell all of the advertising time on KCBA. Seal Rock will continue to have all of its bank debt and other expenses paid by KION's licensee. Seal Rock will continue to receive $45,000 per quarter as an LMA fee. KION will continue to house KCBA and provide it accounting, traffic and administrative services. While Seal Rock will have a new employee who will serve, at least nominally, as KCBA's General Manager, Program Director and Sales Manager all at once, there are no assurances anywhere in the June 12 filing that [KION] will absent itself from any role in the programming of KCBA."

"It is worth noting...that the compensation under the TBA, $45,000 per quarter, has not changed, even thought [KION] is supposedly going from having an economic interest in 100% of the sales to having that interest in only 15% of the sales," writes Buckley. "One would think that the compensation would have been reduced if the economic incentives had truly been changed."

Buckley commented on the Seal Rock employee: "Under normal circumstances it would be incredible to think that a single employee would be capable of filling the positions of General Manager, Sales Manager and Program Director for a full-power commercial television station simultaneously; however, as Seal Rock apparently will not have to worry about the management, sales, or programming of KCBA under its agreement...it is possible for a single person to fill these three roles."

Buckley goes on to note that the new agreement stipulates that Seal Rock is entitled to 85% of all profits generated by the station. However, a new expense--a $600K annual fee payable to Clear Channel for the services noted above--make it unlikely that a profit will ever show up on paper. Buckley writes, "There is no evidence that the value of the services to be provided...are the result of an arms-length agreement establishing a real-world cost of such services. In fact, for $600K on would think that Seal Rock, had it wanted to truly have an independent programming operation, could have hired a full station staff. Instead, it appears as if the party's 'extensive negotiations' over these documents were over how best to replicate the existing arrangements...while looking like they were complying with the terms of the decision [by the FCC to terminate the LMA]."

Citing Miller-Kaplan and BIA statistics, Buckley claims Clear Channel controls 49% of radio revenues in the Monterey market, and--counting both TV stations--47.5% of TV revenues in the market. It wants the FCC to reconsider its decision and rescind approval for the sale of KION to Clear Channel.