FCC Record, Volume 5, No. 25, Pages 7199 to 7563, December 3 - December 14, 1990 Page: 7,291
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5 FCC Rcd No. 25
Federal Communications Commission Record
Federal Communications Commission
Washington, D.C. 20554
November 29, 1990
Released: December 7, 1990
RETURN RECEIPT REQUESTED
Mr. Mel Karmazin, President 8210-AJZ
Sagittarius Broadcasting C5-223
Infinity Broadcasting Corporation C12-169
of Pennsylvania 3) "had" or "been with a man" and "hop
in the sack" are no more offensive than scenes in daytime
and evening television suggestive of sexual activity; and 4)
the humorous context in which the comments were made
does not render otherwise unobjectionable remarks "patently
offensive." Finally, you assert that written excerpts
exaggerate and concentrate the fleeting nature of the
references which were extended throughout an entire program.
Section 1464 of Title 18 of the United States Code
prohibits utterances of "any obscene, indecent or profane
language by means of radio communication." Pursuant to
Sections 312(a)(6) and 503(b)(1)(D) of the Communications
Act, the Commission has statutory authority to take
appropriate administrative action when licensees broadcast
material in violation of 18 U.S.C. 1464. The Commission
has defined indecency as "language or material
that. in context, depicts or describes. in terms patently
offensive as measured by contemporary community standards
for the broadcast medium, sexual or excretory activities
or organs." Infinity Broadcasting Corporation of
Pennsylvania, 2 FCC Rcd 2705 (1987)("Infinity"). In FCC
v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme
Court upheld the Commission's authority to regulate indecent
broadcasts and rejected the argument that the
Commission's definition, essentially unchanged from the
one used today, was unconstitutionally vague. Using the
same definition of indecency, the United States Court of
Appeals for the District of Columbia Circuit has upheld
the Commission's authority to restrict the broadcast of
indecent material when there is a reasonable risk that
children may be in the audience. Action for Children's
Television v. FCC. 852 F.2d 1332 (D.C. Cir. 1988) (" ACT
We find that the Stern broadcast fits squarely within the
above definition of indecency. Rather than containing
merely an occasional fleeting and isolated reference to
sexual matters, the excerpts in the attached transcript
reflect a dwelling on sexual matters, including sexual
intercourse, orgasm, masturbation, lesbianism, homosexuality,
breasts. nudity. and male and female genitalia.
Detailed "descriptions" of those topics are not prerequisites
to an indecency finding. See, e.g., Letter to Carl J.
Wagner (WFBQ (FM) and WNDE (AM), Indianapolis. Indiana),
dated July 19, 1990 (MMB) at 3-4. Moreover, the
Stern show contained frequent and explicit verbal
references to sexual activities and organs that were lewd
and vulgar and that, when taken in context, were made in
a pandering and titillating fashion. And while a humorous
context will not necessarily exacerbate the offensiveness of
certain remarks. it will also not. ameliorate the impact of
otherwise patently offensive speech. See Letter to Michael
J. Flaherty (WIOD (AM), Miami, Florida), dated October
26, 1989 (MMB) at 2.
2. Comparisons with Prior and Contemporaneous Indecency
Rulings Do Not Exonerate WXRK, WYSP and
You contend that the Stern excerpts were no worse
than other radio programs that the Commission has declined
to find actionably indecent. You claim that this
"precedent" unquestionably insulates the Stern show from
an indecency finding, and that a contrary finding would
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United States. Federal Communications Commission. FCC Record, Volume 5, No. 25, Pages 7199 to 7563, December 3 - December 14, 1990, book, December 1990; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc1641/m1/116/: accessed January 21, 2019), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.