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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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May 17, 2004

Yet Another FCC Decision Regarding the Pulling Capacity of the Penis

Posted by Ernest Miller

Last Friday, the FCC affirmed a fine against a broadcaster for violating the FCC's indecency regulations. Read the press release: Commission Affirms Forgeitture Against Entercom for Violations of Indecency Rule [PDF]. Read the decision: In the Matter of Entercom Seattle License, LLC, Licensee of Station KNDD(FM), Seattle, Washington [PDF].

The interesting thing about this decision is that it stands for the proposition that mentioning "sexual organs" can get you in trouble, even if the discussion regards non-sexual matters - "the Bureau specifically ruled that the indecency definition encompasses references to sexual organs, separate and apart from sexual activities, where those references are patently offensive." In this case, the verboten language included "material concerning whether and how a penis could be used to lift or pull objects."

The decision also emphasizes the FCC's claimed ability to view a work not as a whole, but as isolated elements:

Although Entercom argues that the complained-of material includes “numerous traffic reports, celebrity new items, concert updates and other news related breaks[…that] ultimately diluted the segments’ overall focus on the pulling capacity of the penis,” the fact that the broadcasts repeatedly returned to the topic demonstrates a persistent focus on the male sexual organ and removes any doubt that this material was patently offensive. [footnote omitted]

Of course, this decision isn't enough for some of the Commissioners...

True Believer and Commissioner Michael Copps dissented against what he considered too small a fine, Statement of Commissioner Michael J. Copps, Dissenting, Re: Entercom Seattle License, LLC, Licensee of Station KNDD(FM),Seattle, Washington,
Memorandum Opinion and Order

I dissent from today’s decision upholding an Enforcement Bureau decision that I believe is inadequate. In response to complaints about two separate broadcasts on KNDD, the Enforcement Bureau proposed a forfeiture of $7000 for each incident of airing indecent material. In a subsequent order, the Bureau reduced the fine for each broadcast by $1000. I am concerned that this fine for what the majority concludes is a violation of the indecency statute will be easily absorbed as a “cost of doing business.” I am further troubled that the Bureau, rather than the Commissioners, made the initial determination. Our enforcement actions should send a message that licensees cannot ignore their public interest responsibilities. The Commission’s action today fails to do so.

"Sword of Righteousness" Commissioner Kevin Martin doesn't dissent, but expresses his displeasure with the decision in a statement, Statement of Commissioner Kevin J. Martin, Re: Entercom Seattle License, LLC, Licensee of Station KNDD(FM), Seattle, WA, Memorandum Opinion and Order [PDF]:

Consistent with my past statements, I believe we should be fining broadcasters on a “per utterance” basis.

You can read Martin's previous statement here: Separate Statement, Commissioner Kevin J. Martin, Concurring, Re: Infinity Broadcasting Operations, Inc., Licensee of Station WKRK-FM, Detroit, Michigan, Forfeiture Order [PDF]:

I am disappointed with today’s decision.

I agree that Infinity Broadcasting Operations, Inc. violated our indecency rule during the broadcast of the “Deminski and Doyle Show” on January 9, 2002. As I noted when we issued the Notice of Apparent Liability, however, I believe the fine of $27,500 is inadequate, and therefore I concur in this Order.

As the attached Order explains, the indecent broadcast included conversations with nine callers over a 30-minute period. I believe each of these 9 calls could be separate “utterances” or “material” for purposes of the statute and our rules.1 Because of the extremely graphic, lewd and offensive nature of this broadcast, I would have applied the statutory maximum fine for each call,
for a total of $247,500.

You can read the decision he refers to here: In the Matter of Infinity Broadcasting Operations, Inc., Licensee of Station WKRK-FM, Detroit, Michigan, Forfeiture Order [PDF].

I'll simply finish this piece with a reference to a recent article in the Washington Post (reg. req.) (TV Has Grown Up. Shouldn't FCC Rules?).

Comments (1) + TrackBacks (0) | Category: Freedom of Expression


1. newsie on May 18, 2004 03:58 PM writes...

Lorena Bobbitt: The first time major newspapers used "penis" in a headline was when she cut off her husband's. (It was why it became such a big story.)

Jokes followed.

Would they draw a fine now?

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