Commissioners seek crackdown on indecency
Originally published in Current, July 16, 2001
By Dan OdenwaldSix months after President George W. Bush realigned the FCC, shifting power to the Republicans, two commissioners have fired off statements vowing to get tough on indecency. They're the Democrats.
No longer will the FCC be "averse to indecency cases" or erect "barriers to complaints" or stand by a "virtually nonexistent" enforcement policy, said Commission Gloria Tristani in a statement this month. "It's time for the commission to begin taking indecency cases seriously again," she said. Michael Copps, a Democrat newly appointed by Bush, released a similar statement the same day.
What’s indecent now?
The songwriter's intent may be feminist, but an FCC decision said “Your Revolution” by Sarah Jones is indecent. An excerpt:
The real revolution ain’t about bootie size,
The Versaces you buys
Or the Lexus you drives . . .
Your revolution will not be you smacking it up, flipping it or rubbing it down
Nor will it take you downtown, or humping around
Because that revolution will not happen between these thighsWithin the past three months, commission staff have fined at least two radio stations $7,000 each for the broadcast of indecent hip-hop songs.
At KBOO, a community radio station in Portland, Ore., the FCC's reinvigorated enforcement came down upon Deena Barnwell's show, Soundbox. The program is an eclectic mix of hip-hop, rap and soul. But with a twist. As KBOO's urban music director and a rare female presence in the male-dominated hip-hop world, Barnwell flavors her show with feminist messages. It was invented for rappers like Sarah Jones and songs like "Your Revolution."
An excerpt from that song: Think I'm gonna put it in my mouth just because you made a few bucks? Please, brother, please . . . your revolution will not happen between these thighs . . .
Pretty tough lyrics from an artist who's fed up with male hip-hoppers who rap about women as sex objects. To those who would degrade and insult women in their recordings, she sings: I will not be your "six-foot blow-job machine."
The song, while explicit, is a "feminist poem that condemns misogyny and sexism, argues Chris Merrick, KBOO's acting station manager. It's designed to be provocative and shocking — much like the raps that it criticizes.
Poetry or not, the FCC did not approve. The song appears "to be designed to pander and shock" and is "patently offensive," the commission staff wrote in a May 17 notice that fined the station $7,000 for playing the piece. It has no place on the public airwaves before 10 p.m., the FCC said.
Merrick rejects the notion that "Your Revolution" is designed to titillate listeners. That runs counter to the point of the song, he said. In fact, Jones performs the piece in high schools to promote better understanding of negative female images in hip-hop music.
Nevertheless, the FCC ruled, merit is only one variable when considering indecent material, and just because a work contains valuable social commentary doesn't mean it's necessarily protected.
KBOO vows to fight the ruling. Last week, the station appealed the staff decision to the commission. If that fails, Merrick said KBOO will take it to court and argue that the First Amendment protects speech with an important political message.
But that fight comes at a cost. To date, KBOO has spent more than $10,000 trying to get the $7,000 fine overturned. For a small, community station whose staff consists primarily of volunteers, that's money it doesn't have to spare. Merrick promises to raise the money any way he can, including "car washes and bake sales."
Chillin' effect
Worse than the financial costs to the station is the crackdown's "chilling effect" on broadcasters' behavior, Merrick said. KBOO suspended Soundbox from its schedule for four months and then moved it from its Wednesday night 7 p.m. timeslot to Sunday night, after midnight. And station leaders are warning volunteer deejays to take extra precaution when playing questionable material.
Merrick is especially concerned with hip-hop music, calling it a "red flag for the FCC." The commission doesn't understand hip-hop music and is hypersensitive to its traditionally raw lyrics, he said.
Ignorance about rap culture often fuels attempts to ban it, writes Eric Nuzum in his recent book Parental Advisory: Music Censorship in America. Nuzum, program director of WKSU in Kent, Ohio, adds that critics of rap music often "do not understand the important subtext of rap, nor do they understand rap as a teaching instrument, as cultural history, or as comedy."
Barnwell maintains that the FCC made a mistake. "It's a screw-up on their part," she said. "They don't know anything about hip-hop culture and they don't understand it. 'Your Revolution' teaches young girls they're not freaks if they don't want to be sex objects."
Today Merrick wonders where to draw the line, now that the FCC has fined the station. "How much do we continue what we've been doing?" he asked. "What words will get us into trouble?"
What's indecent?
According to the FCC, indecency is "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." Unlike obscenity, it is protected speech and cannot be banned entirely. Instead, the FCC channels it into "safe harbor" hours between 10 p.m. and 6 a.m.
Indecency law has evolved over time, according to KBOO attorney John Crigler. Because the definition is fluid — relying on contemporary community standards — it's difficult to be precise when warning stations about what to air.
Crigler said the FCC definition relies heavily on context. Political ads, news shows and public affairs programs are rarely deemed indecent because of their context. For example, the commission dismissed a claim against All Things Considered that featured a wiretap of mobster John Gotti, even though it contained a great deal of profanity.
As in the Gotti case, Crigler argues, the FCC ought to have rejected the case against KBOO. In his appeal of the fine, he charges the commission misapplied its own standards by ignoring critical factors that put the song into context. Far from pandering, the song is a "critique" of stereotypical male attitudes in contemporary hip-hop culture and was presented during a two-hour show noted for its feminist framework, he said.
But these arguments are likely to be rejected by the FCC, said Larry Miller, a communications lawyer who represents public TV and radio stations. Context matters, he said, but it's just one of the many factors considered by the FCC in ruling on an indecency complaint.
The commission has taken 31 actions against radio stations for indecency in the past five years, including seven this year.
A new FCC?
Do the recent fines signal a shift in FCC policy toward stricter enforcement? A look at the Eminem decision against commercial radio station KKMG in Colorado Springs, Colo., might be telling.
In June, the station was fined $7,000 for playing the radio edit of the rapper's "The Real Slim Shady." KKMG aired the song roughly 400 times during the period from May through July 2000.
Because the song spent 16 weeks on Billboard's Top 40 list and received a Grammy for Best Pop Solo Performance, lawyers for the station argued that the "contemporary community response" to the song was clear. If offensive, they asked, would so many people listen?
The fine still stands.
The Eminem case "sure shakes things up," Miller said.
Most FCC-watchers and communications lawyers would agree, Crigler said. The standard is getting tougher, and Tristani and Copps are pushing for more rigorous rules.
If asked for advice, both Crigler and Miller would tell their clients to be more careful now; the FCC is sending a message to the country's radio stations to cool things down.
It's difficult to ascertain why the commission does what it does. An FCC spokesman, John Winston, refused to comment on the cases other than to say the rulings spoke for themselves. But some FCC-watchers think that political forces are at work.
Tristani, a Democrat from New Mexico, is trying to unseat Republican Sen. Pete Domenici in the 2002 election and may be looking to connect with concerned parents disgusted with sex-obsessed media.
Before coming to the FCC, Copps served as chief of staff to Sen. Ernest F. Hollings (D-S.C.), a noted critic of TV violence. It is widely believed that Hollings played an important role in naming Copps to the commission and that both are interested in curbing indecency in the media.
Within the past month alone, both Tristani and Copps have criticized the FCC's Enforcement Bureau over the dismissal of indecency cases on procedural grounds, which they'd like to see changed. Currently the FCC requires that tapes or transcripts of alleged indecencies accompany citizen complaints. Without them, the FCC will not act. Tristani has argued that broadcasters have a role to play in providing this documentation.
The standards, she said in a press statement, tilt in favor of broadcasters and against members of the public. In order to produce tapes or transcripts, parents would have to "anticipate broadcast indecency" before it occurs.
Copps agreed in a similar press statement. "Lack of information about what was said and when it was broadcast should not be allowed to derail our enforcement of the laws," he said.
It's unclear whether one of the three Republicans on the five-member panel — Chairman Michael Powell, Kathleen Abernathy or Kevin Martin — will team with their Democratic counterparts to fight indecency, said Peter Tannenwald, a communications lawyer who represents small community radio stations. As of last week, the Republicans had not weighed in on the matter.
Photo: Erin Patrice O'Brien
Later story
'Indecent' female rapper sues FCC for violating free speechOriginally published in Current, Feb. 11, 2002
Sarah Jones, the artist whose song "Your Revolution" earned an indecency fine for KBOO in Portland, Ore., is suing the FCC for violating her First Amendment rights. She's asking a federal appeals court in New York to reverse the decision.
The song appears "to be designed to pander and shock" and is "patently offensive," the commission staff wrote in a May 17 notice that fined the station $7,000 for airing the music.
Jones wrote the song as a feminist response to the male-dominated hip-hop world. To those who would degrade and insult women in their recordings, she sings that she will not be their "six-foot blow-job machine."
KBOO defended its broadcast as part of a public affairs program exploring sexism. Station execs rejected the FCC criticism that the song is designed to titillate listeners. Jones performs the song in high schools to counteract negative female images in hip-hop music, they argued.
Most FCC indecency findings punish radio stations that air shock jocks or multimillion-dollar recording artists, says Elliot Mincberg, legal director for the People for the American Way, who is helping represent the artist. "Sarah is neither of those. She just wants to get her message out."
Mincberg says the fine has prevented people from hearing her music because stations are afraid to play her. It's an unusual step for Jones to bring suit herself, as FCC actions almost always deal with broadcast licensees, says John Crigler, attorney for KBOO. Jones hopes her lawsuit will pressure the FCC to rule on the station's appeal.
Web page posted Aug. 6, 2001, updated Feb. 18, 2002
Current
The newspaper about public television and radio
in the United States
A service of Current Publishing Committee, Takoma Park, Md.
E-mail: webcurrent.org
301-270-7240
301-270-7240
Copyright 2001
