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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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June 10, 2004

FCC "Responds" on Lack of Profanity in Clear Channel Consent Decree

Posted by Ernest Miller

As I noted earlier today, there is an odd absence in the compliance plan the FCC agreed to with Clear Channel (Where's the Profanity?). Strangely, while the compliance plan requires Clear Channel to do many things in the event they broadcast obscene or indecent language, there is no corresponding requirements for action in the event Clear Channel broadcasts profane language, which is one of the categories of language the FCC regulates.

I found this odd, so I called the FCC to ask why the apparent oversight. The response I got was thus:

If issues were to arise about the consent decree then the FCC would review them at that time.

Not a "no comment" but it didn't really answer my question as to why the term "profane" was not included in the first place. Nor does the statement really mean anything. Of course if issues arise you should review them. But review doesn't necessarily lead to action. I can review things all day long and not accomplish a thing, except for the "reviewing."

Even if the review determines that the FCC should have insisted that Clear Channel include "profane" language as triggering disciplinary action on Clear Channel's part, there is nothing the FCC can do about it now. The reason is that such a modification would most likely be seen as modifying the agreement to Clear Channel's prejudice, which would mean the admission of Clear Channel's guilt goes away.

Of course, Clear Channel is free to modify its compliance plan, presumably at will, as long as the FCC is notified 30 days in advance. There is no requirement for public notice either:

Clear Channel reserves the right to revise the plan from time to time, provided that the Commission shall be given not less than thirty (30) days advance written notice of any revisions to the plan.

Comments (2) + TrackBacks (0) | Category: Freedom of Expression


COMMENTS

1. akb on June 15, 2004 08:09 PM writes...

"This American Life" did a great show on the FCC indecency frenzy. They asked grade school kids, those that the crackdown is supposed to protect, about what the words mean and it made the rules look ridiculous. They also interviewed Powell's legal aide and he came off looking pretty silly. Its on their website if you missed, listen here.

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2. james burns on June 28, 2004 07:48 PM writes...

I am hoping to find a lawyer to sue clear channel personally for me and maybe the FCC. I was one of the 200 citizens who had an indecency complaint filed against clear channel prior to June 9, 2004. My complaint involved a DJ out of San Francisco who was coaching a 4 year old girl to tell jokes about oral sex and yeast infections; weekly. I have this on tape and sent copies to the FCC at the time of broadcast. I also taped this DJ giving kidnapping tips on where to buy supplies and how best to restrain and then dispose of little girl bodies during the Samantha Runnion memorial service. That story went associated press July 28 29, 2002.

www.bayarea.com/mld/mercurynews/news/local/3747151.htm

Then I caught this DJ singing a song he wrote and produced with the lyrics, "Is she nine or is she twelve, ain´t got no pubic hair, I like them bald and bare. I am such a bad boy I like gorls from hanoi and ends with I love to video tape i am into statutory rape." That was written up in the San jose Mercury september 21, 2002.

www.bayarea.com/mld/mercurynews/news/local/4121848.html

This dj was taken off the air for three months after this last complaint and then returned with the press release from the Clear Channel program director, "Mikey stands for what KSJO FM stands for." I downloaded and have copies of this press release. The DJs name is Mikey. Then Clear channel put his face up on billboards and bushelters all over the Bay area with the tag line, "Listen before we fire him . . . Again."

I am an artisan who sells my wares at art and wine festivals. Clear Channel employees began showing up and handing out bumperstickers in front of my booth promoting Mikey at numerous shows. Now Clear Channel has fired howard stern and replaced his spot with Mikey in San Diego.

www.themorningmouth.com/

Then the FCC decree of June 9 came out where the FCC took a $1.75 million bribe and signed a gag and restraining order against itself.

www.fcc.gov/eb/News_Releases/DOC-248237A1.html

I want to civil suit against the FCC for censoring my complaint against clear channel with the illegal decree they signed on June 9 and released during Reagan´s funeral. Under the 1934 fcc act amended it is the job of the fcc to investigate listener complaints and not make deals with media companies to censor the public. This is a full blown scandal, a complete cover-up to specifically bury the material that my clear channel dj was broadcasting. I have been told by the enforcement office that the agreement to bury my complaint was instrumental in making clear channel offer $1.75 million to get the FCC to sign the gag order.

Clear channel has broken numerous anti trust laws, payola laws, ownership laws, indecency laws and the FCC has allowed them to get away with it all. This media monopoly is not only a threat to decency but also democracy in America.

My case will be sensational. There is no one who is not sickened when they hear the tapes I have made of Mikey´s broadcasts. I have the tapes, the bumperstickers, pictures of the bus shelter and billboard, and a copy of the press release to prove that clear channel not only knew what this dj was doing, but was actively taking part in promoting this message with a tag line, which promises he will do it "AGAIN."

My wife and I have focused a lot of effort on getting this dj off the air. We attended a public meeting in san francisco last april and played the song for FCC commissioner adelstein and handed him a copy personally. The chief enforcement officer Dana Levitt had us send three copies to the FCC capitol heights office.

This is not about gross indecency, this is a case of criminal obscenity, which I define as . . . "the portrayal of children as sexual prey." I believe this wording is narrow enough not to be a threat to real speech. Children are denied the right to vote and the right to carry a gun and so they can ask for special protection under the law because they are legally denied the right to protect themselves.

I want to file a civil suit against both the FCC and Clear Channel so that these important points can be made in the press and this DJ taken off the air. He calls himself "the perpetrator" and i have made a 45 minute documentary of all the times my wife and I were on television news and in the newspaper. Our documentary is presently running on our Public Access station in Monterey were the FCC will hold its public meeting July 21st. The response has been great.

If you do not think you can take this case then please refer me to someone who can.

Thank you for your time, Sincerely James burns

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