The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Wednesday, March 10, 2004
 

More FCC-tit madness? The Sandra Tsing Loh Affair


McCarthy had his Red Channels, we have our Clear Channel...

STL is, I gather a sort of jobbing hack who, amongst other gigs, worked for NPR station KCRW Santa Monica.

Until one day she recorded a promo for her show with a fuck that was supposed to be bleeped, but wasn't.

STL Central is Cathy Seipp [1] (this is the Ur-post on the subject, I think), who covers the saga in some detail.

[Puzzling point: Seipp says STL
says they told her they got zero complaints the first time her spot aired -- at 7:35am Sunday morning, because who's listening then? -- and then a few complaints after it repeated at 9:35am.

Repeated?

I've complained many a time and oft about newspapers not reading copy before its printed. But a radio station not listening to its own programmes? Even if there's no one at the station (I assume these things are automated), surely at least one station employee was listening at 0735!]

Back on January 17, I considered why the FCC did not censor Don Imus and his right-wing media jock friends.

I looked at the FCC decision in the case of Bono at the 2003 Golden Globes (PDF) - which Chairman Michael 'Sonny Boy' Powell is trying to get reversed, of course [2]: Bono's fuck - not being descriptive of sexual or excretory material, but used just as a cuss-word - was held to be outside the definition of indecency that the FCC uses.

STL's fuck doesn't get out via the same trapdoor: what she said, Seipp says in an LA Beat piece was this:
Sandra began her February 29 Loh Life complaining that her husband sleeps late and doesn't listen, "but he DOES play guitar for Bette Midler on her MASSIVE new STAGE show - there are times when he stands within five feet of her! So I guess I have to f*@&k him."

STL was clearly referring to sexual activity there!

Seipp links to a Volokh piece, which, in turns links to the FCC Policy Statement of March 14 2001 (PDF): not, I think, as valuable as a ruling, but a useful statement of guidance for the industry [3] - and manna for kibitzers, of course!

Starting at para 18, the Statement cites various fleeting references to sexual material held not to be indecent - and a couple which are truly sick, that, I suspect might have ranked as obscene, but were certainly indecent.

Para 19 says
...even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness. Examples of such factors illustrated by the following cases include broadcasting references to sexual activities with children and airing material that, although fleeting, is graphic or explicit.

Volokh, citing the Bono ruling, says that
...the decision also rests on the principle that "fleeting and isolated remarks of this nature do not warrant Commission action" -- and this does equally apply to Tsing Loh's words.

The point here is that the Bono words fell outside the scope of the prohibition on two grounds, ie that they were both non-descriptive and fleeting.

(The words quoted in the case cited by the Bono ruling (page 3 note 16) are clearly expletive, not descriptive.)

For reassurance, if I were the management of KCRW, I would want to look at cases on all fours with STL's - that is, fleeting descriptions of sexual material - to see how, and how often, the FCC has ruled in the broadcaster's favour in such cases.

On the basis of the 2001 Statement, I don't think KCRW could be sure that STL's words had not infringed the indecency rule, even judging the matter on the day before the Super Bowl! To fire the woman out of hand, though, seems like a clear over-reaction.

On the legislative front, it's of interest to note that HR 3717 (discussed here last on March 5) merely provides for an increase in penalties for breach of 18 USC 1464; as at present drafted, it does not widen the scope of the prohibition - to cover the Bono case, or otherwise.

S 2056, the companion bill to HR 3717, was reported out of the Senate Commerce Committee on Tuesday, with a rider freezing FCC relaxation of concentration of ownership rules until the GAO has reported on a possible link between such concentration and broadcasting indecency!

The Senate tried to attach a rider on the subject to one of the appropriations bills last year (trace back from piece of November 26).

My recollection was that this rider was likely to be opposed by the House in conference. The fact a concentration of ownership rider is appearing again now suggests that the appropriations rider fell by the wayside at some stage.

Amongst broadcasters - and NPR stations are, if anything, more exposed (pun intended) to executive and legislative pressure on the issue than the likes of Bubba the Love Sponge's Clear Channel Communications - the FCC are surveying a rout. Right now, Sonny Boy could more or less name his terms, just so long as they didn't mean any station losing its licence.

Call for a volunteer to be the first to tell him to fuck off?

So that's what they call radio silence!

  1. Mother of the pseudonymous Cecile Dubois whose blog has previously been noticed here several times, and continues to provide entertainment to the discerning.

  2. It's not clear to me whether the Bono ruling will, or can be, reversed. Presumably the FCC can make a new, prospective ruling - but that would presumably reopen the whole question of the definition of indecency.

  3. It comes with caveats (in para 30, page 18).

MORE


The case comparisons section of the 2001 Guidelines starts thus (para 10, page 5):

The principal factors that have proved significant in our decisions to date are: (1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.

The cases reviewed under factor (1) are long descriptions, rather than a single word. One might say that STL's fuck is not graphic at all, but is merely a vulgar equivalent for have sex.

Under factor (3), serious discussions on sex matters on Oprah and Geraldo (everything is relative!) escaped being characterised as indecent for lack of intent to titillate or shock. The fact that the word in SLT's promo was intended to be bleeped when broadcast is presumably helpful in negativing such intent. (Corroboration of the intention to bleep would be handy.)

The Guidelines also has a section (para 24ff) laying out the procedure used by the FCC to handle indecency cases. The first thing the section says is
The Commission does not independently monitor broadcasts for indecent material. Its enforcement actions are based on documented complaints of indecent broadcasting received from the public.

Let's suppose that KCRW must expect some enemy or other to make a complaint to the FCC about STL's promo.

What are the chances of successful enforcement action? In my March 5 piece, I quoted Rep Henry Waxman as saying that
In 2003...the commission received 240,000 complaints about indecency on 375 programs but proposed fines in only three cases.

Even if Super Bowl hysteria racked [oops! lexical malfunction] that up a hundred-fold, I suspect that this year there will many more than 300 worse cases that SLT's.

Does the fact that the station fired her count in its favour? Apparently it has a zero tolerance policy - so perhaps it shouldn't matter either way.

Has FCC enforcement activity measurably increased since the Super Bowl? Do staffing constraints apply? If so, it might be some time before such activity is able to pick up significantly.

An energetic discussion at LA Observed canvasses the role of the First Amendment in the affair. KCRW is a private actor; but, in ending STL's contract, it clearly had the possibility of FCC action in mind.

Clearly, the First Amendment would apply to any action taken by the FCC against the station. But does STL have any claim against the station for breach of her First Amendment rights? Hasty a priori judgements on the matter will, I suspect, be prone to error!

[Whilst in interrogative mood, I'm impelled to ask: What if Jackson had kept her tit covered? The animus of legislators seems to have been largely pent-up, rather than generated by the incident itself: in which case, if it hadn't been Jackson, some reality show or other would have set them off, wouldn't it?]


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