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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

Where's the Profanity?

Posted by Ernest Miller

The FCC just entered a major consent decree with Clear Channel resolving (by terminating) all existing and ongoing investigations into whether Clear Channel broadcast obscene, profane or indecent language. Basically, Clear Channel now has a clean slate for anything that happened before today. In return, Clear Channel is paying a $1.75 Million fine, admitting to broadcasting indecent (but not profane) language, and implementing a compliance plan. Interestingly, however, the compliance plan doesn't mention anything about profane language, although Clear Channel has been absolved of violating restrictions on broadcasting profane language. Why doesn't the compliance plan include anything about profane language? I believe the FCC has some pretty devious reasons.

UPDATE 0910 PT
I called the FCC to ask about this issue and got their answer.
Read about it here: FCC "Responds" on Lack of Profanity in Clear Channel Consent Decree.

Background

On March 18, 2004, the FCC went out of its regulatory way to declare that broadcasting the use of the word "fucking" as an adjective, as in "fucking brilliant," was not only indecent but also profane - a designation unused for many decades (FCC Revives Notion of the Profane). The definition of profane speech provided by the FCC is not terribly clear (Enforcement Bureau - Obscene, Profane & Indecent Broadcasts):

The FCC has defined profanity as “including language that denot[es] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” See Complaints Against Various Broadcast Licensees Regarding Their Airing of the Golden Globe Awards Program, FCC 04-43 (released: March 18 2004) (“ Golden Globe Awards”). In announcing this definition, the FCC ruled that the single use of the “F-word” in the context of a live awards program was profane. The FCC further stated that it, “depending on the context, will also consider under the definition of profanity the “F-Word” and those words (or variants thereof) that are as highly offensive as the “F-Word,” to the extent such language is broadcast between 6 a.m. to 10 p.m. We will analyze other potentially profane words or phrases on a case-by-case basis.”[link and emphasis in original]

But what does this brand spanking new doctrine of profane speech mean, exactly? My first post speculated a bit, and I followed up with some other posts exploring the concept of the "profane" (Howard Stern Should Ask FCC: What is Profane? and Violence is the New Profanity?). Profane speech could possibly incorporate things like blasphemy, hate speech and violence, I believe.

After announcing this new profane speech doctrine, the FCC has had a single opportunity to clarify this doctrine when it issued a massive NAL against a Howard Stern broadcast, but no analysis of profane speech was part of the decision (Howard Stern: Indecent But Not Profane). This is exceedingly strange as the definition of profane speech overlaps a great deal, if not entirely, with the definition of indecent speech. Certainly anything that is indecent is also plausibly profane and one would expect the FCC to make the distinction, being that they were so proud of reviving the doctrine of profane speech just a short, few months ago. Read on...

Latest Decision

"Today, the FCC entered into a $1.75 million Consent Decree with Clear Channel Communications, Inc., and its subsidiaries (Clear Channel) to resolve investigations into whether Clear Channel stations had broadcast obscene, indecent, or profane material in violation of the Communications Act and Commission rules." Read the rest of the press release: FCC and Clear Channel Communications, Inc., Enter Into $1.75 Million Consent Decree Concerning Indecency Restrictions [PDF]. Read the order and consent decree: In the Matter of Clear Channel Communications, Inc. NAL/Acct. No. 200432080140 [PDF]. Strangely, given the importance and emphasis the new doctrine received when first adopted, the doctrine of profane speech doesn't really make an appearance in the consent decree.

For example, in admitting violation of the laws, Clear Channel only admits violation of the prohibition on indecent speech; there is no admission at all with regard to profane speech:

Clear Channel admits, solely for the purpose of this Consent Decree and for FCC civil enforcement purposes, and in express reliance on the provisions of Paragraph 8 hereof, that the broadcast material at issue in the NALs and certain of the broadcast material at issue in the Inquiries is indecent in violation of 47 C.F.R. § 73.3999, assuming construction of this term as it is construed by the Commission as of the date hereof.

Now, 47 C.F.R. § 73.3999, is only one part of what the FCC calls the "indecency laws." The other part is 18 U.S.C. 1464.

18 U.S.C. 1464:

Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.

47 C.F.R. § 73.3999:

Sec. 73.3999 Enforcement of 18 U.S.C. 1464 (restrictions on the transmission of obscene and indecent material).

(a) No licensee of a radio or television broadcast station shall broadcast any material which is obscene.
(b) No licensee of a radio or television broadcast station shall broadcast on any day between 6 a.m. and 10 p.m. any material which is indecent.



You notice something strange? 47 C.F.R. § 73.3999 only talks about obscene and indecent language, although 18 USC 1464 talks about obscene, profane and indecent language. What's up with that? Why no admission of profane language? Isn't it important? Isn't some offensive language profane but not also indecent? Is the FCC telling us that none of the language in the complaints was profane?

Profane Language Not Covered by Clear Channel's Compliance Plan

Even though Clear Channel made no admission regarding profane language, the consent decree absolves Clear Channel of any charges of broadcasting profane language. Man, what a deal! But it gets better. Clear Channel does have to pay a $1.75 Million fine. In addition to the fine, however, Clear Channel also had to promise:

that it has adopted, and is currently in the process of implementing, a company-wide compliance plan for the purpose of preventing the broadcast of material violative of the Indecency Laws. A summary of that plan is set forth in the Attachment.

Well, I've gone through the summary of the plan, and surprisingly, there is nothing about profane speech in the plan. I mean, the FCC is all down with keeping profane language off the air, but Clear Channel isn't required to do anything to comply with the FCC's profane lanugage doctrine. Not only do they get absolved of violating the profane language doctrine, they don't even have to take any steps going forward to ensure they don't violate it again in the future. What a deal for Clear Channel! And the Chairman of the FCC himself, Michael K. Powell signed off on this. Boy, he must feel foolish for forgetting the doctrine he so proudly revived.

Let's look closely at the compliance plan (it starts on page 7), here [PDF]:

Clear Channel will conduct training on obscenity and indecency for all on-air talent and employees who materially participate in programming decisions, which will include tutorials regarding material that the FCC does not permit broadcasters to air.

How hard would it have been for Clear Channel to conduct training on obscenity, indecency and profanity for all on-air talents? Too difficult apparently. And that last bit about materials the FCC doesn't permit broadcasters to air doesn't cover it either. The only thing the FCC doesn't permit broadcasters to air is obscenity. Profane and indecent language aren't prohibited, they are only required to be broadcast during certain hours.

If a Clear Channel station receives a Notice of Apparent Liability or other proposed action for a broadcast occurring after the adoption of this Initiative that the Commission believes to be obscene or indecent, the following steps will be taken:

I guess none of those steps have to be taken if the FCC believes a broadcast was profane. It seems that profane speech just doesn't get the respect the FCC gave it just a few months ago.

One of the steps required is:

The employees accused of airing, or materially participating in the decision to air, obscene or indecent content will be suspended and an investigation will immediately be undertaken;

Well, since the steps don't apply if the FCC thinks the language is merely profane, but not indecent, I guess it doesn't make sense to suspend anyone. Another step also ignores the profane language doctrine:

Such employees will be required to undergo remedial training on the FCC’s obscenity and indecency regulations and policies and satisfy station management that they understand where the line between acceptable and unacceptable programming falls before resuming their duties;

The above two requirements only apply if the FCC believes a broadcast was indecent or obscene. If the FCC finds that a broadcast was actually indecent or obscene the following applies:

If a Notice of Apparent Liability or other proposed action issued by the FCC is finally adjudicated and Clear Channel is finally found to have aired or decided to air an obscene or indecent program that results in enforcement action by the Commission, the offending employees will be terminated without delay. This will ensure those employees who break the law by broadcasting, or by materially participating in a decision to broadcast, obscene or indecent material will not work for Clear Channel.

Where's the love for profane speech? Sure, broadcast indecent speech and you'll be fired. Broadcast profane speech and ... what, exactly?

Finally, we have some forward looking language - Clear Channel promising to get ahead of the program:

Clear Channel will fully participate with representatives of the broadcast, cable and satellite industries in any efforts that may emerge to develop a voluntary industry-wide response to indecency and violence.

Indecency and violence?!?! Violence!?! What about profane language? Shouldn't Clear Channel be concerned about profane language too? Apparently violence gets more respect than profanity. And, frankly, I'm having a hard time picturing an overly violent radio broadcast.

And with that, we come to the end of the profanity-free compliance plan.

Why the Mysterious Absence of the Profane Language Doctrine

If I didn't know any better I would think that the FCC was slowly stepping away from its profane language doctrine, but I know better.

So, why was the profane language doctrine ignored? I doubt it was because of oversight. Poke an FCC Enforcement Bureau lawyer with a stick and they spout "obscene, profane and indecent." One of them must have noticed the glaring absence of "profane" in Clear Channel's compliance plan. Heck, I noticed it on my first, quick read through.

The other thing I noticed though, was that the compliance plan was pretty harsh. It is a one strike and you're fired rule. One foul-up and you're gone.

Imagine if Clear Channel has an extremely popular radio personality and one day, completely by accident, an indecent word slips through the cracks (mistakes are bound to happen, especially given the vagueness of the standard) and a complaint is generated. This would not be good for Clear Channel, having to fire a popular personality for one mistake. But Clear Channel only has to fire the DJ if the language was "indecent." There is no requirement to fire the DJ if the language is only "profane." Imagine that.

Imagine also if the DJ who accidentally violated the indecent language restrictions was favored by the political powers that be. Could it be that, for example, Howard Stern saying something would be considered indecent and thus require Clear Channel to fire him, but that someone like Rush Limbaugh might only be guilty of using profane language and Clear Channel could keep him on? The FCC would never manipulate their standards for political reasons, would they?

Heh. I guess the profane language doctrine is important after all, as a loophole. Gotta love the way the devious minds of censors work.

Comments (5) + TrackBacks (0) | Category: Freedom of Expression


COMMENTS

1. cypherpunk on June 10, 2004 08:04 PM writes...

What do you want them to do? Say, we're sorry we ever mentioned profanity, that was a mistake, we'll never bring it up again?

Well, that's not going to happen, for obvious reasons. The FCC can't say, profane speech is fine, go ahead and use it all you want. The best you can hope for is for them to silently drop it and not refer to profanity again. And that sounds like exactly what they're doing.

So why are you beating them up over this? Do you want to not only win the point, but to grind their faces into the dirt in the process?

Permalink to Comment

2. Ernest Miller on June 10, 2004 08:27 PM writes...

Yeah, an admission they were wrong would be very nice. Until and unless they make such an admission, which wouldn't have to be an apology, but rather a restatement of the doctrine, then we need to be afraid that they'll use it to beat up people they don't like.

After all, they're the ones who pulled it out of history in order to beat U2's Bono over the head with it. What will keep them from doing it again, whenever they darn well choose?

Additionally, there are ongoing legal challenges to this doctrine. By constantly calling them on it, their legal defense will be weakened. "Um, yeah, judge, it is really important, but we don't really enforce it too often ... cuz, it is so, important, yeah..."

Finally, the FCC decided to mess with free speech, not me. I didn't start this debate. They did. I think it is perfectly fine to beat up on people rhetorically when they choose to abuse free speech for political reasons.

Permalink to Comment

3. cypherpunk on June 11, 2004 12:18 AM writes...

Isn't your argument really with the statute and not the FCC? Some bluenose could almost have written your entire essay, even if the FCC had never mentioned profanity. "What's wrong with you, FCC? Why aren't you talking about profanity? Why are you ignoring the statute, which lists profanity right there alongside indecency and obscenity? How come you're not making Clear Channel promise not to be profane, as long as you're making them clean things up?"

How would you feel if the FCC took you up on your challenge, and said fine, you want us to enforce profanity? We'll enforce profanity! and started fining people left and right every time they took the Lord's name in vain. It's right there in the statute that says they can do that.

Do you think that enforcing profanity would be found unconstitutional, when indecency and obscenity are known to pass muster? That seems to be a pretty slim hope.

You should let sleeping dogs lie. My reading is that the criticism has led the FCC to realize that enforcing profanity will be a can of worms that they don't want to open. But they can't back off publicly, because that would look like an endorsement of profane speech, which is impossible for a political body. Calling attention to the change is only going to increase the likelihood that we will see more enforcements against profanity, which will be bad for free speech.

Permalink to Comment

4. Ernest Miller on June 11, 2004 01:26 AM writes...

I would absolutely love to see them enforce their restrictions on profane because, quite frankly, I think their enforcement would be seen as unconstitutional and would undermine the indecency aspects of the statute as well.

Why do you think they don't want to open the can of worms? Because they would win?

Permalink to Comment

5. 2600mhz on June 12, 2004 11:30 PM writes...

Wtf. You can rant on the radio about denying the Holocaust and killing Blacks but you can't say 'fucking'. what a joke your society has become

Permalink to Comment


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