DA 92-623 Federal Communications Commission Record 7 FCC Red No. 13 DISCUSSION Before the 3. The majority of Harris' allegations deal with WZAK's Federal Communications Commission programming decisions. In view of the Commission's sen­ Washington, D.C. 20554 sitivity to the First Amendment rights of the public and of broadcasters, and the noncensorship provision of Section 326 of the Communications Act, 47 U.S.C. Section 326, In re Application of the Commission affords a broadcaster considerable discre­ tion in the programming that it presents. See Mahoning Zapis Communications File No. BRH-890601XB Valley Broadcasting Corp., 39 FCC 2d 52, 58 (1972). With Corp. limited exceptions, such as obscene or indecent program­ ming, the Commission generally reviews a licensee's pro­ gramming only to determine whether the licensee has For Renewal of the License of made a reasonable effort to deal with the problems of its Station WZAK, Cleveland, Ohio community, through programming responsive to issues of importance to that area. See Deregulation of Radio, 84 FCC 2d 968, 982 (1981), recon. granted in part and denied in MEMORANDUM OPINION AND ORDER part 87 FCC 2d 797, aff'd in relevant part and remanded in part sub nom. Office of Communication of the United Adopted: May 18, 1992; Released: June 19, 1992 Church of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983). Against this background, we examine each of Harris' al­ By the Chief, Audio Services Division: legations. 1. This proceeding involves the application of Zapis Sexually Suggestive Material Communications Corp. (Zapis) to renew the license of FM 4. Harris alleges that WZAK's programming and promo­ radio station WZAK, Cleveland, Ohio. Leodis Harris (Har­ tional campaigns are sexually suggestive. In examining ris) filed a Petition to Deny the application (Petition). 1 such claims, the Commission considers whether the broad­ Harris states that, as a Judge in the Juvenile Division of cast material is "indecent," i.e., if it depicts or describes, in the Cuyahoga County Court of Common Pleas, he is con­ terms patently offensive as measured by contemporary cerned with the potential effect of WZAK's programming community standards for the broadcast medium, sexual or on the young people of Cleveland. He alleges that WZAK excretory activities and organs. See FCC v. Pacifica Foun­ ( 1) airs sexually suggestive programming and promotions; dation, 438 U.S. 726, 739 (1978). Broadcast of indecent (2) conducts contests that are disorderly and/or offensive to material is actionable if the broadcast occurs at a time minorities; and (3) condones its Program Director's sexual when there is a reasonable risk that children may be in harassment of women. Zapis filed an Opposition respond­ the audience.2 No terms are per se indecent. and words or ing to these charges. phrases that may be patently offensive in one context may 2. In assessing the merits of a Petition to Deny, the not rise to the level of actionable indecency in another Commission is guided by Section 309( d)( 1) and ( 2) of the context. Infinity Broadcasting Corp. of Pennsylvania, 3 FCC Communications Act, 47 U.S.C. Sections 309(d)(l) and Red 930, 932 (1987), aff'd in part and remanded in part (2), as explained in Astroline Communications Co. v. FCC, sub. nom. Action for Children's Television v. FCC, 852 F.2d 857 F.2d 1556 (D.C. Cir. 1988). First, the Commission 1332 (D.C. Cir. 1988). Therefore, to determine whether determines whether the petitioner makes specific allega­ particular material is indecent, we must have sufficient tions of fact that, if true, would demonstrate that grant of information to examine both the language used and its the application would be prima facie inconsistent with the context. public interest. If so, then the Commission proceeds to 5. Harris has not made a prima facie case of actionable examine and weigh all of the material before it, including broadcast indecency. Much of the material to which Harris any opposition, to determine whether there is a substantial objects was not broadcast but rather used to promote and material question of fact requiring resolution in a WZAK on area billboards. The Commission does not regu­ hearing. Finally, the Commission must determine whether late such non-broadcast material.3 With respect to material grant or denial of the application would serve the public that was broadcast over WZAK, Harris provides the titles interest. For the reasons set forth below, we conclude that of allegedly indecent material but provides no information the Petition does not raise questions of fact requiring a from which the Commission might determine the actual hearing or indicate that grant of the renewal application language used or examine identified phrases in context. would be inconsistent with the public interest. The mere titles: "We Get You Up and Off' (a promotional 1 Jeffery D. Johnson, an elected member of the Cleveland City ity continues to be limited to material broadcast between the Council, and Reverend C. Jay Matthews, Pastor of the Mt. Sinai hours of 6 a.m. and 8 p.m. See, e.g., Kansas City Television, Ltd. Baptist Church, join in Harris' Petition. (KZKC-TV), 4 FCC Red 6706 ( 1989). Harris identifies one song 2 A federal court has held unconstitutional a Commission rule ("Put Your Mouth on Me") as being broadcast at 7:20 a.m., thus that would have prohibited the broadcast of indecent material falling within our enforcement authority, if the song was inde­ 24 hours a day. Action for Children's Television v. FCC, 932 F.2d cent. However, Harris does not show that other allegedly inde­ 1504 (1991); cert. denied U.S. , 117 L. Ed. 2d 507 cent broadcasts occurred at times within our enforcement (1992). The court remanded that case with instructions that the authority. With respect to these other broadcasts, the record Commission establish a "safe harbor" during which material shows only that the broadcasts occurred in the "morning" and that may be indecent, but which is nevertheless constitutionally in the "evening." protected, may be broadcast. Until such time as a new "safe 3 Additionally, Harris' allegation that WZAK's promotional harbor" goes into effect, the Commission's enforcement author- campaigns are designed to distort audience ratings does not 3888 7 FCC Red No. 13 Federal Communications Commission Record DA 92-623 slogan for a morning show); "Put Your Mouth On Me" (a personal injuries, and traffic disruption. WZAK canceled song title); and "Pillow Talk," "Just the Two of Us," and the contest as a result of the unforeseen size of the crowd. "For Lovers Only" (three titles of shows aired during In another instance, Harris alleges that a large crowd of evening hours) are insufficient to support a finding of listeners assembled at the station in response to WZAK's indecency. See Infinity Broadcasting Corp. of Pennsylvania, promise to give 20 dollars to the first 20 people to show 3 FCC Red 930, 932 (1987), aff'd in part and remanded in up wearing underwear on their heads. He states that the part sub. nom. Action for Children's Television v. FCC, 852 crowd became unruly when the station decided to give 20 F.2d 1332 (D.C. Cir. 1988) (double entendre and innu­ dollars to the first 100 people wearing underwear on their endo must be examined in context). Furthermore, as dis­ heads instead of to the first 20 as announced. cussed in note 2 supra, Harris does not provide us with the 9. At one time, the Commission's regulation of licensee­ times at which most of the allegedly indecent material conducted contests was designed to avoid property damage, aired, making it impossible for us to determine whether traffic disruption, and other adverse consequences. See broadcast of this material would be actionable. While we Contests and Promotions Which Adversely Affect the Public share Harris' concern about exposure of children to inde­ Interest, 6 RR 2d 671 (1966). In 1985, however, the Com­ cent material, we cannot from the information provided mission narrowed the scope of its contest regulation. See conclude that the material to which Harris objects is inde­ Elimination of Unnecessary Broadcast Regulation, MM cent or that it was aired at a time when there was a Docket No. 83-842, 57 RR 2d 939 (1985). At that time the reasonable risk that children may have been in the au­ Commission stated that, while it does not encourage con­ dience. tests that disrupt the public safety, it recognizes that such matters are more appropriately handled at the local level.4 Contests Id., 57 RR 2d 939 at 942. The Commission currently 6. Harris also makes several allegations concerning li­ regulates licensee contests to the extent necessary to pre­ censee-conducted contests promoted on WZAK. He states vent contests that are false, misleading, or deceptive. See that several contests were disorderly and not conducted as Rules Relating to Licensee-Conducted Contests, Docket No. announced, while others allegedly showed an insensitivity 20500, 60 FCC 2d 1072, 1073 (1976 ). Toward this end, our to minorities. rules require that licensees fully and accurately disclose 7. Insensitivity to Minorities. Harris states that two li­ the material terms of each contest, and conduct each censee-conducted contests: "The Biggest Cockroach Con­ contest substantially as announced. See 47 C.F.R. Section test" and "The Big Butt Contest" were insulting to and 73.1216. stereotypical of minorities. As stated earlier, however, free­ 10. The two contests in question do not appear false, dom of speech concerns dictate that the Commission misleading, or deceptive. With respect to the underwear rarely interfere with a licensee's individual programming contest, Harris has not made a prima facie case of any rule decisions.