KFCF STATION HANDBOOK
DRAFT PROPOSAL 1.3
ALL STAFF, VOLUNTEERS AND PROGRAMMERS ARE RESPONSIBLE FOR READING AND UNDERSTANDING THIS HANDBOOK.
KFCF HANDBOOK — TABLE OF CONTENTS
FRESNO FREE COLLEGE FOUNDATION & KFCFS HISTORY.. 4
STATION-WIDE RULES & REGULATIONS. 6
CONFLICT RESOLUTION, MEDIATION AND GRIEVANCE PROCEDURES.. 7
PROCEDURE FOR BECOMING A PROGRAMMER: 9
THE PROGRAMMER/KFCF CONTRACT: 9
RIGHTS, REGULATIONS AND RULES. 9
REGULATIONS APPLYING TO PROGRAMMERS.. 10
RIGHTS AND RESPONSIBILITIES OF MANAGEMENT. 11
GUIDELINES FOR PROGRAMMING.. 12
PROGRAMMERS DUTIES AND RESPONSIBILITIES. 14
THE PROGRAMMERS PHONE LIST: 17
PUBLIC SERVICE ANNOUNCEMENTS: 17
CONTESTS AND TICKET GIVEAWAYS: 18
BROADCASTING A TELEPHONE CONVERSATION OR TAPING ONE FOR LATER BROADCAST: 18
GUIDELINES FOR NEWS, PUBLIC AFFAIRS AND COMMENTARY: 19
CULTURAL AND PUBLIC AFFAIRS COMMENTARY POLICY: 19
RULES FOR POLITICAL BROADCASTING: 20
EDITORIALS AND DISCLAIMERS: 21
REBROADCASTING AND COPYRIGHT LAWS: 22
OBSCENITY, PROFANITY, INDECENCY.. 23
Personal Attack Doctrine Repealed. 24
Basic Principles: Reasonable Access, Equal Opportunities, Non-Censorship. 28
Special Rules for Public Stations. 39
APPENDIX B – TELEPHONE CALLS. 42
APPENDIX C —- INDECENCY AND OBSCENITY.. 43
This handbook explains the rights and responsibilities of all station programmers, volunteers and staff. The term programmer refers to anyone who has been authorized by management to operate KFCF equipment or broadcast from its facilities. Along with the FFCF mission statement, the following guidelines constitute station policy. Where noted, they also reflect Federal Communications Commission (FCC) regulations. Station policies may be stricter than FCC or other government regulations. At no time should a programmer violate FCC or other government policies.
FRESNO FREE COLLEGE FOUNDATION & KFCFS HISTORY
The Fresno Free College Foundation is a community-based membership organization dedicated to the principles that the well-being of the community is measured by the respect that it shows for the civil liberties, intellectual and artistic freedom of its citizens, and that the exercise of this freedom enriches the individual and society as a whole.
Since 1968, the Foundation has provided a flexible and responsive institutional structure for fostering the intellectual and political growth of the community. The Foundation is recognized by the State and Federal governments as a charitable and non-profit corporation. Operational funds are derived from annual membership dues and from contributions. The Foundation is governed by a Board of Directors. Day-to-day operations are in the care of an elected president as outlined in the by-laws of the organization, and paid staff.
Upon the 30th anniversary of the Foundation, the Fresno Bee observed in its October 14, 1998 editorial:
The Fresno Free College Foundation was born in the campus turmoil of the “60s, dedicated to academic freedom. Thirty years later, it may look a little different, but that core purpose – nourishing and cherishing a vital intellectual environment in the Fresno Area – is still at the heart of the organization.
Since then, the Free College Foundation has expanded its purview, slowly and surely, into a number of other areas, and in the process become and essential part of the community. The Foundation started its radio station, KFCF, in 1975, and it remains one of the largest elements of the group’s work, transmitting the signal of Berkeley-based Pacifica Radio along with local programming. That has included broadcasts of many public agency meetings over the years, a community service of the highest order.
The Foundation sponsors several community organizations, including the Fresno Poets Association, the William Saroyan Society, the Spectrum Gallery and the Ananda Fund, which helps needy children in India with their education.
In 1998, the Fresno Free College Foundation Board of Directors adopted the following mission statement in observance of its thirtieth anniversary:
The mission of the Fresno Free College Foundation cannot be separated from its origins and its ownership of KFCF-FM, the Central California source for KPFA and Pacifica Network programming. Our origins began in 1968 with the defense of academic freedom at Fresno State College. We are therefore first dedicated to the expression of free speech, including diverse and alternative thoughts and ideas, as well as disparate viewpoints and opinions. To this end, we support arts, humanitarian and community groups. We are further dedicated to the challenge of conventional thought on Central Valley issues, including education, social and criminal justice, racial and sexual equality, agribusiness, economic and cultural viewpoints that impede human progress.
The Foundation sponsors community organizations dedicated to humanitarian activities, civil liberties and the arts by providing a non-profit umbrella for supporting their work in the community and beyond. Some of these are the Ananda Fund, which provides scholarships and aid for children in India, the Spectrum Gallery of fine art photography, the Phillip Stephens Fund for handicapped college students, and the William Saroyan society.
KFCF has been serving the community in many ways. We have provided a venue for thousands of hours of locally produced programming, including music, public affairs, science, poetry and the arts. These programs have featured and been produced by local artists, writers, political and social activists. Local programs have included live broadcasts of music events and community forums on public issues, as well as programs produced at our studios such as interviews, documentaries, dramatic productions, live radio plays and community events calendars.
At the same time, we have been a window to the broader world of human endeavor by broadcasting the unique and excellent programming of KPFA and Pacifica Radio. In the recent past, we have also sponsored many public lectures featuring prominent speakers and issues, including: Amy Goodman, host of Democracy Now; Larry Bensky, producer of Sunday Salon; William Mandel, activist and author; Jennifer Stone, literary radio host; Matthew Lasar, Pacifica Radio historian; Laurie Garrett, Pulitzer Prize winning science reporter, Helen Caldicott, physician and activist; Howard Zinn, author of the People’s History of the United States, and many more.
Currently, KFCF’s broadcast schedule includes 85 percent of programming originating from KPFA, and 15 percent from Fresno. KFCF has a wide variety of local shows including monthly programs on environmental affairs, gay and lesbian issues, local poetry, labor and social justice issues. Our local programming also includes weekly and monthly music programs covering a diversity of jazz, classical, folk, soul, blues and space/ambient genres. KFCF provides public service broadcasts of the meetings of the Fresno County Board of Supervisors, involving political discussions and decisions important to local citizens.
KFCF has been successful, despite its meager financial resources, because of the dedication of its staff and supporters. By working together with mutual respect, continued community support and dedicated volunteers, KFCF will continue to survive and thrive far into the future.
STATION-WIDE RULES & REGULATIONS HOUSE RULES
1. Treat others with respect and the building and equipment with care.
2. No equipment or recorded material may be taken from the station unless specifically authorized by management.
3. Station record albums, CDs and tapes are not to be removed from the building.
4 Long distance calls must be authorized by management and are to be made for station purposes only.
5. The copy and fax machines may not be used for personal business.
6. No food or beverage other than water is allowed in the on-air control/production rooms. Food and beverage are allowed in the office studio.
7. Outside of business hours, only programmers, on-air guests, staff and persons signed up to use the control room/production room are allowed inside the station.
8. Clean up whatever materials you use, including re-shelving CDs in their proper place. Consider it part of your shift duty.
9. Check your mailbox at the office and check your e-mail. Occasionally you may receive mail from the outside, but the primary function of these boxes is for communication among individuals within the organization.
Illegal drugs are not permitted in the station at any time. No alcohol will be allowed in the station unless previously approved by management. Consumption of alcohol is never allowed in the on air control room(s). The use of alcohol or illegal drugs by a staff member or volunteer that affects his/her job performance shall be cause for immediate suspension, and dismissal, in accordance with the procedures set forth in this handbook. Smoking of tobacco is not permitted inside the station.
Minors may not be on KFCF premises outside business hours. (Business hours are, for this purpose, any time staff shall be on KFCF premises, or a member of the board of directors who has been so authorized by a vote of the board). The only exceptions to this are as follows:
A) The minor is accompanied by a parent or legal guardian at all times when on KFCF premises; OR
B) The parent or legal guardian has executed a written consent allowing another adult person to be present with the minor on KFCF premises and that adult is with the minor child at all times.
KFCF will not tolerate any form of sexual harassment. Sexual harassment includes, but is not limited to, any unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature. If any employee or volunteer believes that he or she is being subjected to employment related sexual harassment, the situation must be reported immediately to the employees supervisor, to the manager or to a board member. That individual must investigate and take the corrective action deemed appropriate. If the problem is not quickly resolved, the grievance procedure may be initiated.
CONFLICT RESOLUTION, MEDIATION AND GRIEVANCE PROCEDURES
The following conflict resolution and mediation procedures are to be followed by management, programmers, staff members, and volunteers. For example management shall use these procedures in cases of proposed discipline, suspension, or termination for cause of programmers, staff members, or volunteers. Programmers, staff members, and volunteers shall use these procedures in cases of perceived inequitable work practices, seriously disruptive behaviors, arbitrary management actions, or managements failure to follow procedures provided in this handbook. As an additional step, a grievance procedure is provided to permit programmers, employees, and volunteers to challenge adverse actions on the part of management by appeal to the Board of Directors.
The first step of the conflict resolution procedure is to hold a discussion of the problem by the parties involved, clarifying points of disagreement and agreement, proposing solutions, and if possible, coming to a resolution. A third party may be included in the discussion by mutual agreement of the parties. A written record of the discussion shall be drafted and initialed by the parties.
If Conflict Resolution does not resolve the matter, a second meeting of the parties shall be held within 15 days, unless otherwise mutually agreed upon. This meeting will include but not be limited to: (1) a mutually agreed upon mediator, (2) the station manager/or the President of the Board of Directors, (3) the program director, if a programmer is involved, and (4) the parties involved. The contents of the meeting shall be documented in writing and shall include any decisions and/or intended actions by management. A copy shall be placed in appropriate personnel files and given to all parties.
The grievance procedure may be initiated by programmers, staff members, and volunteers to appeal management decisions and actions resulting from the mediation meeting described above. Within 15 days from the date of the mediation meeting, the grievant shall present to the President of the Board of Directors a written statement of the grievance along with a copy of the meeting record of the mediation meeting. The President shall refer it to a Grievance Committee of the Board of Directors. The committee chair shall convene a meeting of the committee within 15 days of receipt of the grievance for the purpose of hearing said grievance. Said hearing will be scheduled at a time and date mutually agreeable to the parties involved.
Grievance hearings shall not be bound by judicial procedures. Detailed minutes of the hearing shall be kept and/or be recorded on magnetic tape. Records of this meeting shall remain with the committee in their confidential files. Grievance hearings are not open to the public. (But) The staff member, programmer, or volunteer requesting the hearing shall be present, as should other parties requested by the committee chair. A mutually agreed upon mediator should also be present. The aggrieved party may request that other parties relevant to the grievance be present at the hearing. The committee chair should honor such requests. Failure of the aggrieved party to appear may result in dismissal of the grievance.
Within ten days of completion of the hearing, the committee chair shall prepare a written statement of the decision of the committee specifying the reasons supporting the decision. Copies shall be sent to each member of the Board of Directors, management and the grievant.
The committee shall make its report at the next board meeting. The decision shall be final when ratified by a majority of the Board. In the event that the decision is not ratified, the grievance shall come before the board. This decision shall be binding on all parties. A copy of the decision shall be given the grievant and another copy placed in his/her personnel file.
Management may suspend a grievant for cause during the grievance process but may not terminate the grievant until the process is completed and in accordance with the committees findings and decision.
PROCEDURE FOR BECOMING A PROGRAMMER:
Interested prospective programmers may contact the Program Director (PD) to submit a program proposal. Giving due consideration to the commitments and desires of existing programmers, programming from KPFA, and available air time the PD will consider all program proposals submitted in writing and will respond within two weeks. If the proposal is accepted in principle, the appropriate staff will train the prospective programmer in the use of the broadcast equipment and on-air presentation techniques. If the program proposal is for a limited series, the Program Director may assign a Board Operator to assist in the technical presentation of the show. When the staff members feel the trainee(s) is competent to run a show without assistance, the trainee will be given the opportunity to have her/his own show, when the schedule permits. In most cases a trained programmer will be in attendance during the first two shows that a new programmer broadcasts. In the event that a program slot is not currently available, the trainee may be placed on a list of back-up programmers.
When a program proposal is accepted and given a regular time slot, the programmer enters a contractual agreement with KFCF, which typically covers a period of six months. Recognizing that programs are evolving, creative endeavors and may develop in new directions over time; programmers may submit amendments to their program proposals to the PD at any time. Such amendments are subject to the approval of the PD.
Renewal of a programmers contract is not guaranteed. Programmers will be notified in writing as far in advance as possible, in no case less than one month, if the PD and Station Manager determine their show is not to be renewed. At least one months notice will also be given in the case of a change in scheduling of an existing program, providing that programming changes at KPFA are known far enough in advance to give such notice. Programmers have access to the Conflict Resolution and Grievance procedures described below if they believe they have been treated arbitrarily in program termination or rescheduling.
This section presents summaries of the rights, rules and regulations at KFCF. Many of the points summarized here are addressed in more detail further on in this handbook. Programmers assume responsibility for complying with both KFCF and FCC rules and regulations. A PROGRAMMER WHO DELIBERATELY DOES NOT COMPLY IS SUBJECT TO DISMISSAL; IN ACCORDANCE WITH THE PROCEEDURES SET FORTH IN THIS HANDBOOK.
REGULATIONS APPLYING TO PROGRAMMERS
A programmer is expected to:
1. Be proficient in the operation of all equipment that is routinely needed during his/her shift,
2. Be informed of, and must follow all FCC rules and regulations,
3. Read and understand the contents of this handbook.
4. Participate in and abide by conflict resolution and grievance procedures, as outlined in this handbook.
5. Read all underwriting and announcements assigned to his/her program clearly and without adlibs.
6. Keep accurate logs of his/her shift time in the program log book.
7. Air station promos, PSAs and other announcements as requested.
8. Refrain from using KFCF airwaves to air personal and/or in-house grievances. In a news context, station events of general public interest do not fall within the meaning of in-house grievances.
9. Find his/her own replacement if she/he cannot do a show. Notify the Program Director of all such changes. Holidays are not an exception to this rule.
10. Arrive at least 15 minutes before his/her scheduled airshift.
11. Its important to check your mailbox before you start your airshift as there may be information pertinent to your show (tickets to give away, programming changes, messages from guests, etc.). Be sure to check your e-mail regularly and notify the station of any changes in your e-mail address.
12. Make smooth, courteous and prompt transitions between airshifts and or KPFA programming.
13. Be responsible for extra board time before and/or after his or her show to air pre-recorded or other programs if requested by the Program Director or agreed upon as part of programming duties.
14. Remove and/or re-file all papers, CDs records, PSAs, extra microphones, etc, preferably before the end of his/her scheduled shift.
15. Report threatening phone calls or suspicious activities to management and/or appropriate authorities.
16. Ensure the security and safety of the station. In the absence of paid staff, the board operator on duty is responsible for station security and enforcement of all station and FCC rules.
17. Keep KFCF management informed of any changes in his/her address or phone number, e-mail and other methods of contacting the programmer.
18. Respect and protect the privacy of programmers by refusing to give phone numbers, addresses or, in the case of programmers who use pseudonyms, real names to anyone other than programmers or staff.
19. Notify the PD, in writing, at least four weeks in advance if resigning from his/her shift.
A programmer has the right to:
1. Have access to information on FCC rules and Station Policies and be notified by management of unintentional infractions,
2. Have equipment and facilities in working order and repaired as soon as is reasonably possible, [If programmers have equipment problems they should notify management or an engineer]
3. Have access to the PD regarding station matters,
4. Be notified at least 1 week before his/her show will be pre-empted, except in cases of breaking events,
5. Receive at least one months notice, if the contract is not to be renewed or if of his/her program is to be rescheduled, [Subject to late information from KPFA]
6. Have access to conflict resolution, mediation and grievance procedures,
7. Expect locks and Security devices to be maintained in good working order by staff,
8. Ask others to leave the on-air room during his/her airshift,
9. Begin her/his show on time.
RIGHTS AND RESPONSIBILITIES OF MANAGEMENT
Management has the right or responsibility to:
1. Assign air shifts and determine the stations program format and schedule,
2. Give consideration to the commitments and desires of existing programmers when creating the schedule,
3. Inform programmers of any changes in regulations or policy,
4. Notify programmers of program deficiencies and help them gain needed skills,
5. Provide or help find additional training for programmers, who need or request it,
6. Make available materials and resources for programmers to use in their programs,
7. Terminate a program that fails to maintain standards of quality after attempting to correct program deficiencies and following established procedures,
8. Maintain reasonable station security,
9. Have in place reasonable safety provisions (e.g. fire extinguishers, etc.),
10. Pre-empt programming, when necessary,
11. Immediately suspend programmers, staff members, or volunteers for serious violation(s) of FCC regulations, state and federal laws or station policy,
12. Dismiss a programmer for violation of the programming agreement, FCC regulations and/or station policies, in accordance with the procedures outlined in this handbook protecting programmers rights.
Everyone involved in producing shows at KFCF shall cooperate in achieving quality programming. Programmers have the freedom to choose the content of their shows within the agreed thematic boundaries and consistent with station and FCC policies.
The host of a news, commentary or public affairs show, who expresses or has guests who express strong or controversial opinions about an issue of strong local concern, is encouraged to find guests expressing the opposing point of view in order to engage in a dialogue, so that listeners may develop a better understanding of the issues.
Aesthetic quality, in general refers to the overall broadcast sound. Understanding that this criterion is inherently subjective, aesthetic quality also reflects a number of particular qualities:
A high quality show should deliver a feeling of unity and completeness from beginning to end.
Conceptualization and planning: Spontaneity can work well at times, but concept, research and organization are typically crucial to a well-presented program. At the same time a good live broadcaster avoids being so over-prepared that they are essentially reading a script from beginning to end.
Presentation: A good broadcaster should effectively (a) present and communicate background information on the artist, speaker, or topic; (b) keep the show moving, get from point A to point Z without discussing each stop along the way (e.g. Now Ill read a PSA); (c) be a producer in the sense of knowing what theyre doing, what theyre going to say, and where theyre going;(d) fulfill the on air requirements (e.g. Official Station ID, underwriting); (e) communicate to the outside listener by avoiding inside jargon, including references to here here is wherever the listener is. –
Vocal skills: good diction, natural vocal styles, reading ability, accurate pronunciation and sense of pacing. Effective broadcasters avoid verbal crutches (like um, Ok, and ah), clichés and repetition of words and phrases. Mistakes may happen, but the broadcaster shouldnt draw attention to them.
Source material: In general, recordings must be air quality. Excessive surface noise (old vinyl records) and tape hiss (multigeneration cassettes) are examples of poor source material, unless appropriate in a limited way and in the context of the show. Bootlegs or unlicensed recordings are not suitable for airplay as our licensing agreements with BMI, ASCAP and SESAC may not cover such material. If you have permission from the artist/musician/performers, recordings or performances may be aired. Volume levels from source to source should stay constant (CD, mic, turntable).
Time management: arrive on time; timely announcements (underwriters, Community Calendar, etc.); leave next programmer time (5 minutes) for an effective transition. Plan time to clean up following shift; include time to re-file CDs, etc..
Personality: Ideally, a programmer will sound friendly, open and engaging, so that listeners are interested in the person at the other end of the radio. At best, this occurs when the programmer is thoroughly involved in what he/she is doing and conveys her/his unique personality.
Music program (or portion of show): Again, the individual show or portion of the show should be appropriate to the format. Segues should flow wellfrom topic to topic, guest to guest, and between discussion and musical or other breaks. If an interview is included, it should focus on the interviewee rather the interviewer.
The listener should have a sense that the programmer is in control of the show.
Disclaimers shall be given when appropriate.
All programming is subject to ongoing evaluation by program staff, based on but not limited to: aesthetic quality, technical competence, content consistent with the agreed upon format, and the following of the policies and procedures of KFCF.
Periodic evaluations by the PD are an opportunity to discuss a programmers strengths and weaknesses. In order to prepare for an evaluation, the programmer will be asked by the PD to tape a portion of his/her show. The evaluation will be based in part on this tape.
PROGRAMMERS DUTIES AND RESPONSIBILITIES
Legally KFCF must be signed off the air due to a loss of programming from KPFA, if no local programmer is available. A sign off consists of informing the audience that we are leaving the air and a Station ID [KFCF, Fresno]. If you return the station to the air you must do a Station ID. Contact the Chief Engineer or other management for assistance in turning the transmitter off or on.
Never turn the transmitter off without permission from the PD, manager or chief engineer (CE) unless there is an extreme emergency such as a fire.
Operators are required to keep accurate and legible program logs. These logs are required by the FCC as part of the stations official and legal records of compliance and performance. If in doubt over the correct way to fill out the logs, ask the PD, or CE.
Please arrive 15 minutes early for your program. If you are late starting your program due to your being tardy, it might be best to let the program from KPFA that is on the air continue. Chronic lateness will not be tolerated, and will be considered grounds for dismissal.
Radio happens on time! You should always try to end your show on time. Network (KPFA) shows should begin as close to the scheduled time. Monitoring KPFA will assist in smooth transistions. If youre in doubt about the accuracy of the control room clock simply call time (767-8900) and re-set it. Note in the log the actual times that program changes occur.
Station Identifications (IDs) must be made at the beginning and end of the broadcast day (should the station be on less than 24 hours a day) and each hour, as close to the top of the hour as possible, at the first natural break in programming. If KPFA does not provide a legal ID at the end of their show and the beginning of your show, you must provide one! If your show ends on the hour and you are switching back to KPFA, always do a legal ID, as KPFA may already have done the legal ID .
Each required station identification announcement must include the station’s assigned call letters immediately followed by the community or communities specified in the station’s license. When airing a required station ID, the station has the option of inserting the name of the licensee or its frequency, or both, between the call letters and the community of license. No other sequence is permissible.
· KFCF, Fresno
· KFCF, 88.1 FM, Fresno
· KFCF, Fresno Free College Foundation, Fresno
· KFCF, Fresno, your listener sponsored radio station
- In Fresno, this is KFCF
- FM 88, KFCF
- KFCF, the listener-supported broadcast service of the Fresno Free College Foundation, KFCF, public radio for Fresno
The unacceptable IDs are unacceptable only for the required top-of-the hour or sign on/sign off ID. They would be fine for other announcements.
The optional identification of a station’s frequency may be made in any number of ways, such as: “FM 88.1,” “88.1 Megahertz,” “88.1 on your FM dial,” or “Channel 200.”
Identification of Other Communities
A station may include in its official station identification the names of any additional community or communities it serves, so long as the community to which it is licensed is named first. For example, a station licensed to Fresno could identify itself as “KFCF, Fresno, Clovis, and Minkler.”
When the programming of a station is rebroadcast simultaneously over the facilities of a terrestrial satellite (or “repeater”) station, the originating station may make station identification announcements for the satellite station.
You may not insert ANYTHING other than Frequency and/or the name of licensee between the call letters and the city of license. You must specify Fresno. After Fresno you may mention other communities, but Fresno MUST be first.
Do not reverse the order of the ID. The call letters always go first and the city of license is always last.
Try to announce your legal ID right at the top of the hour. However, dont necessarily interrupt your program to announce it. Make it as near the hour as possible at the first natural break in programming.
Feel free to give any kind of station identification you like at other times during the hour. In fact, youre encouraged to mention the call letters and frequency often so people know what station theyre listening to.
Very few programs on KFCF have underwriting. Our policy is not to accept commercial or corporate underwriting. Some programs however may have received funding from a non-profit foundation or organization, government agency, or an individual. If funding was received for a program, it must be announced.
Procedure for airing underwriting:
1. A programmer must check the program logs before his/her shift begins to see if underwriting is scheduled.
2. All underwriting is to be read exactly as written and scheduled.
You are responsible for the conduct, both on and off air, of anyone you bring into the studio. If you have a show that occurs during non-business hours you must have any guests names recorded in the log book in the control room. Minors under 18 who visit the station after normal business hours must bring with them a signed parental consent form.. Programmers must provide the minor with the form prior to the minors station visit.
The studio is not a place to party. Station security during non-business hours is the responsibility of the person whose board shift it is. Theft of small items like CDs and microphones can be a problem, dont let it happen on your shift.
In late 1996, the Emergency Broadcast System was changed to the Emergency Alert System.
KFCF is required to air an EAS test once a week during working hours.
The procedure for airing an EAS test or alert outlined in the EAS Book in the on-air room. If you miss a test you MUST inform the PD so that it can be rescheduled. Our link to the EAS is through radio station KMJ-AM, TV Station KFSN-30, and the National Weather Service. Monthly, one of their tests turns on the system in our studio and will automatically rebroadcast itself. This occurs on the last Tuesday of the month. It alternates between an overnight and mid-morning test. During an actual alert the EAS system will automatically relay emergency alerts.
When equipment malfunctions, it is the responsibility of the operator to maintain program continuity to the extent that it is possible. Report the malfunction to the Chief Engineer or any other paid staff. If the malfunction occurs during non-business hours, leave a message on the answering machine of the CE and the PD. If the malfunction is serious enough to interrupt regular broadcasting, try to inform the CE by phone. If the CE cannot be reached, try the PD next, then the President of the Foundation and/or manager.
YOU ARE RESPONSIBLE FOR FINDING YOUR OWN SUBSTITUTE (a list of programmers and qualified substitutes is available.) Notify the PD as soon as you find a substitute. If you have trouble finding a substitute, the PD will suggest people you might ask.
An operator who misses an air shift without notifying the PD is subject to immediate and permanent removal from all air shifts. The only excuse is a last minute emergency that wouldnt allow time to notify the station (auto accident, sudden road washout, etc.).
The PD may preempt your air shift in full or in part to air special programming. The PD will notify you personally as soon as possible after the decision to preempt you has been made. If one hour or more of your air-time is preempted you will not be responsible for any of your air-time if you so choose. The decision of the Program Director on matters of preemption is final. You may be asked to run the board during a preempted air shift if you are preempted for locally originated programming but you may decline with no prejudice against you or your work at the station.
If you are informed while your show is in progress that the remainder will be preempted, you are expected to cooperate in full with the PD. Preemption on such short notice would only be in cases of important, breaking news events or emergencies (see EAS Tests).
It is part of a programmers responsibility to help with the fund drives. Pledge drives are not necessarily considered a preemption if your show falls on a pledge day, you are expected to work your regular air shift and devote it to raising money. Special programming may pre-empt your show.
If a disagreement arises about the content of your show or the frequency of your pledge pitches, you must defer to those managing the drive. Generally during local KFCF pledge breaks we give the KPFA pledge phone numbers.
All programmers phone numbers are included in the Programmers Phone list. This list makes you accessible to other programmers. Under no circumstances, other than express permission from another programmer, may you give information from the list to anyone other than KFCF staff or programmers. If you wish to be omitted from the list, please let the office manager know.
Read through all written announcements before reading them on-air in order to make sure they are timely and you can pronounce all names, etc. properly. It is important to remember that you cannot give ticket prices, use imperative language or call to action in either PSAs or Community Calendar Events. You may give ticket prices and use imperative language when promoting station-sponsored events.
One of the important ways that KFCF serves the community is through Public Service Announcements. KFCF programmers are encouraged to read PSAs . To ensure a fair rotation of announcement, it is best to choose PSAs that havent been read yet or recently, in addition to choosing PSAs of interest to your particular audience. PSAs are for non-profits and may include prices.
Community Calendar events can include for-profit events . These events are introduced by saying something like and now for todays community calendar. You are free to use or not use the Calendar Events file as you wish. Remember that we dont announce prices for commercial events. Remember, also, to use the Calendar to inform about, not promote events (see Commercialism).
You are requested to promote other KFCF and KPFA shows during your shift, and you are expected to promote KFCF-sponsored events. Many of these promos may be available in the on-air room on carts or mini-discs.
Programmers are encouraged to make carts promoting their shows. Carts are also a useful tool to help you time your show or turn a record over without causing dead air. Carts must be approved by the PD before being put in the on-air room for airing. A carts subject, expiration date, and running time in seconds should be clearly written on its label. Carts of 60 seconds or less will fit into more formats and will be played far more often then longer carts. Indeed, a 30 second cart may relay your message as well or better than something longer. 60 seconds is the preferred length. 55 seconds of voice with music taking it to 60 seconds makes it easy to fit into KPFA breaks.
It is station policy that carts are used only to promote KFCF activities, shows, benefits, etc. They are not to be used for PSAs or to promote other activities unless specifically approved by the PD or manager.
CONTESTS AND TICKET GIVEAWAYS:
KFCF does not conduct on-air contests. You may give away tickets on the air to the 2nd or 3rd caller, etc. but you cant conduct a contest for skill or knowledge. Also, you cannot mention the event on the air if you accept complementary tickets for your own use. That could be construed as Payola (see separate lising). The PD must approve ticket give-aways.
BROADCASTING A TELEPHONE CONVERSATION OR TAPING ONE FOR LATER BROADCAST:
The law states that before you put a live phone conversation on the air, or record one for later broadcast, you must inform the other person verbally that you intend to broadcast the conversation. The usual procedure is to ask for permission. During a live call-in show, it is mandatory that you inform the person that they are being placed on air. If the call is initially taken on-air, standard policy is to answer the phone with the information that the caller is on-air. Example: Hello, KFCF, youre on the air! For more info on phone calls see Appendix B
The FCC’s rules require all party consent for recordings made with a wireless microphone. A key exception is made, however, for the recording of private conversations that are not, in effect, “private” (i.e., conversations that occur in a semi-public or public place and in a manner that others would be likely or able to overhear). Restaurants, parks, and streets are all examples of such places. An office, hotel room, and other such locations fall into a gray area. Check with a lawyer for advice on how to proceed in these circumstances.
In situations in which a parabolic or shotgun microphone, or other devices not apparent to those being recorded, are used to record conversations, state laws may again impose more stringent requirements than are contained in federal law. In some states, for example, the interception itself may have been carried out in a legal manner, but use of the material for either non-broadcast or broadcast purposes would require all party consent.
Use of a recording of a private conversation without permission may subject a station to a suit for violation of the right of publicity. The right of publicity (sometimes confusingly called a right of privacy) is the right of every person to control the commercial use of his or her voice, image, or name. Most of the cases relate to celebrities, such as Bette Midler, who sued to stop an imitator on a TV commercial from imitating a personal, but commercially viable, attribute-her voice.
Surreptitious or undercover news gathering techniques may implicate any number of non-FCC legal issues. For example, in Greensboro, North Carolina, in 1992, an ABC television series, PrimeTime Live, sent undercover producers to get jobs with the grocery store, Food Lion, so that they could secretly record unsanitary meat-handling practices with hidden video cameras and microphones. After some of the footage was used in a broadcast of PrimeTime Live, Food Lion sued ABC and the PrimeTime Live producers and reporters for millions in damages, claiming fraud, breach of duty of loyalty, trespass, and unfair trade practices. Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. N.C. 1999). The court held that ABC had illegally trespassed because the journalists had used misrepresentation to gain access to parts of the store that were off-limits to regular customers. Had the filming taken place in an area open to the public, such action would not have constituted a trespass.
GUIDELINES FOR NEWS, PUBLIC AFFAIRS AND COMMENTARY:
News – short, timely, factual, informative pieces.
Cultural /Public Affairs – longer, analytical programs, timely or not.
Commentary – opinion piece or program representing a particular point of view on a topic.
News programming should strive for the highest standards of fairness, accuracy, and credibility; Information is to be confirmed before it is aired. If it cannot be confirmed, a statement to that effect is to be included and the source of the information identified. All sources must be identified or, if confidential, be identifiable to management.
News reporters will be assigned to stories based on KFCFs needs and their interests. No reporter will be assigned to a story which may present a conflict of interest. It is the stations policy that all news personnel receive sufficient training to maintain KFCFs technical and journalistic standards.
CULTURAL AND PUBLIC AFFAIRS COMMENTARY POLICY:
The opportunity for free, informed debate is an important service KFCF provides. Public affairs programmers in particular have a responsibility to facilitate the fullest possible discussion on the issues at hand through in-depth questioning of guests representing multiple points of view. The presentation of a range of perspectives is considered central to KFCFs mission.
Both programmers and guests should be able to identify the source(s) of information they present on the air. Listener participation by telephone should be encouraged on cultural/public affairs programming when possible. Expressions of opinion by programmers and station listeners should be clearly noted as such.
RULES FOR POLITICAL BROADCASTING:
The FCC forbids noncommercial stations to broadcast political advertising. KFCF cannot accept remuneration to broadcast support for or opposition to any candidate or ballot measure. Violation of these rules can put KFCFs license in jeopardy. Willful violation by a programmer is grounds for immediate suspension from the air, at the discretion of the PD and/or manager. For a rundown on Political Rules, see Appendix A:
KFCFs non-commercial license does not allow commercial advertising except on our own behalf. All programmers must understand what does and does not constitute a commercial. Many individuals and businesses will want to put their messages on the air, but if their message is a commercial, we must turn them down.
FCC rules on advertising can be difficult to interpret. The important criterion is to determine who benefits from an announcement. It is each programmers responsibility to be clear on the commercial nature of any announcement s/he reads over the air. If there are any questions, one must consult the PD BEFORE airing the announcement. All Public Service Announcements (PSAs) must be approved by the PD before being included in the PSA file for airing.
Someone calls up and says she has two tickets to a concert this weekend and she is willing to sell them at cost. You cannot announce these tickets for sale. You may, if you choose, offer to help give the tickets away. Or you can write down the information on the remote chance that someone else will call the station looking for tickets to that concert. But, you cannot be involved in selling the tickets on the air, not even if the seller offers to donate the proceeds to the station.
Someone calls up and says the Coalition to Stop Blue Meanies is having their taco-benefit. The station has been reading their PSAs but the turnout is low and the benefit is half over. She pleads with you to go on the air and really encourage people to attend. A case like this will call for some judgment from the programmer. It is not appropriate for a non-commercial station to promote the sale of tacos, It is permissible for you , as an individual, to say how you feel about Blue Meanies, and even personally endorse the work of the coalition. But FCC regulations prohibit you from urging people to buy tacos. In short, you can inform your listeners that tacos are being sold but cant promote them in any way, such as calling them the best tacos this side of Tijuana.
It is both FCC and station policy NOT to make statements that are a call to action, that is, any statement directing the listener to do something-for example, go on down… come by and see… call them at… Nor may you use qualitative or comparative language when describing a product, service or company. For instance, . . . a relaxing and comfortable evening in one of Toms luxurious limousines… is not permissible; . . .an evening in one of Toms limousines… is permissible. You may inform (who, what, where, when, why) but not promote.
It is a station policy that we do not, as a station, editorialize on any subject unless the editorial has been approved by an action of the Board of Directors. In addition, the FCC specifically forbids our editorializing on or endorsing a political candidate or pending legislation.
As individuals, you, your callers and guests are welcome to editorialize as long as a disclaimer is used. It is your responsibility to make clear to the listener that your, your guests, or phone callers opinions are those of whomever expresses them, and are not necessarily the opinion of the station, its staff, or management. A standard disclaimer to that effect is posted on the wail in the on-air studio. This disclaimer must be read at the beginning of any show that by its nature will contain strong opinions. This disclaimer should be re-read every hour and again at the conclusion of the show.
In 1984, the Supreme Court overturned the long-standing prohibition of editorials by noncommercial stations. FCC v. League of Women Voters of California, 468 U.S. 364, (1984). Prior to the Supreme Court’s decision, stations were free to carry programs that presented the opinions of individuals or organizations, but could not themselves take editorial stands. The Supreme Court found the editorial ban to be a content-based restriction that violated the First Amendment.
The fact that FCC rules do not prohibit station editorials does not, of course mean editorials present no legal problems. Editorializing may implicate other laws such as state defamation law or IRS regulations related to grassroots lobbying.
Although there are no special requirements with regard to identifying station editorials, it is a general journalistic and broadcast practice to state when an opinion has been presented on behalf of the licensee. There are no special logging or Public File requirements for station editorials.
The freedom to editorialize does not extend to political editorials, i.e. editorials that endorse or oppose a political candidate. In October 2000, the FCC repealed the political editorial rule 73.1930 after the Court of Appeals for the District of Columbia found that the FCC had done nothing to justify the rule’s existence. In the Matter of Repeal or Modification of the Personal Attack and Political Editorial Rules 2000 FCC Lexis 5725 (2000). Even with the repeal of this rule, however, noncommercial stations are prohibited from airing political editorials. Section 399 of the Communications Act states that: “No noncommercial educational broadcasting station may support or oppose any candidate for political office.” 47 C.F.R. §399
The FCC ban on political editorials applies only to licensee endorsement of or opposition to particular candidates for public office. It does not exclude the expression of political views by candidates or other parties over a public station. In fact, the FCC’s political broadcasting rules encourage the even-handed discussion of political issues.
REBROADCASTING AND COPYRIGHT LAWS:
It is illegal for us to rebroadcast anything from another radio or television station, either simultaneously or delayed, unless we have express, written permission from the originating station. If you want to rebroadcast something on your show you must first consult the PD. KFCF must have written permission from any originator on file before a rebroadcast can be aired. KFCF has permission from KPFA.
If you want to broadcast a speech or concert that was recorded privately and isnt published material, you must submit written permission from the artist(s) or their representative(s) to the PD before the recording is aired.
Copyright laws apply if you quote print material in your program. You are permitted fair use of copyrighted print material if reading or quoting from it on the air. Before you read copyrighted material at great length on the air, ask yourself whether doing so could reasonably interfere with the copyright holders ability to sell the material in our broadcast area. If it would, that would constitute an infringement of the copyright. Consult the PD if you have questions regarding copyright and your program.
Note, however, the following special situations:
Emergency Alert System (EAS)
Stations can rebroadcast the emergency communications of an originating station (operating under a State Area EAS plan) without written authority.
Subcarrier Communications Authority (SCA) programming can only be rebroadcast with written permission of the originating station.
US. Government Stations
Voice of America (VOA) and Armed Forces Radio and Television Service (AFRTS) programming can be rebroadcast only pursuant to a program-specific written contract.
Foreign Broadcast Stations
Unless precluded by international agreement, stations can rebroadcast the programming of a foreign broadcast station and do not need to obtain the consent of the originating station. Consent generally needs to be obtained to rebroadcast programs from stations in Canada, Mexico, and Latin America.
Rebroadcast Of Non-Broadcast Transmissions
Some non-broadcast material can be picked up over the airwaves, but is not originally transmitted to the general public-Citizens Band (CB) radio transmissions, for example. The following rules apply to non-broadcast transmissions:
Amateur Radio and CB Messages
Messages originated by stations in the Amateur and CB radio services can be rebroadcast without consent of the originating party.
Other Privately-Owned Non-broadcast Stations
Messages originated by privately-owned non-broadcast stations that are not part of the Amateur and CB radio services may be broadcast only with prior permission from the non-broadcast licensee. Messages transmitted by common carrier stations may be rebroadcast only with prior permission from both the station licensee and the originator of the message. (See the section in this chapter on “Monitoring Police and Like Frequencies” for additional information on use of non-broadcast station transmissions.)
Federal Government Non-Broadcast Stations
In general, stations must obtain written permission from the appropriate government agency before broadcasting material that originates from a non-broadcast station licensed to the federal government.
Special Non-Broadcast Rules
Stations may rebroadcast time signals of the National Observatory and the National Bureau of Standards and weather information of the National Weather Service without prior permission, under the following conditions:
National Observatory Time Signals
(1) The programming must be obtained by direct radio reception or land line circuits of a naval radio station. (2) An announcement must be made without reference to any commercial activity. (3) The Naval Observatory must be identified as the source of the programming substantially as follows, “With the signal the time will be . . . courtesy of the U.S. Naval Observatory. (4) Schedules of time signal broadcasts are available from the Superintendent, U.S. Naval Observatory, Washington, D.C. 20390.
National Bureau of Standards Time Signals
(1) The programming must be obtained by direct radio reception from a National Bureau of Standards (NBS) station. (2) Rebroadcast equipment must not delay rebroadcast of time messages by more than 0.05 seconds. (3) Time messages must be rebroadcast live and cannot be rebroadcast from tape or other recording. (4) NBS call sign information (voice or code) may not be rebroadcast. (5) The rebroadcast must be made in association with an announcement that states substantially as follows, “At the tone, 11 hours 25 minutes Coordinated Universal Time. This is a rebroadcast of a continuous service furnished by the National Bureau of Standards, Fort Collins, Colorado (or appropriate city and state).” No commercial sponsorship of this announcement is permitted and none may be implied. (6) Stations using NBS time signal messages must forward notice of this use to the National Bureau of Standards on a semiannual basis to: NBS, Radio Stations WXYZ, 2000 East Country Road 58, Ft. Collins, Colorado 80524. (7) Stations cannot produce programming that is imitative of NBS time messages and present that programming as NBS time signals, even if the station calibrates its clocks to the NBS time in the process of producing such a message. (8) Details on automatic or manual switching techniques for rebroadcast of NBS time signals are contained in the FCC’s Rules Section 73.1207(d)(vii) and can be obtained from NBS at the above address.
Weather Service Messages
Messages of the National Weather Service (NWS) must be rebroadcast within one hour of the original broadcast. If advertisements are given in connection with weather rebroadcast, these advertisements must not directly or indirectly convey an endorsement by the U.S. Government of the products or services advertised. Stations must include announcements that credit the National Weather Service as the programming source in association with use of NWS weather information.
OBSCENITY, PROFANITY, INDECENCY
Obscenity, as legally defined (see below), has always been prohibited by the FCC and is not allowed on KFCF. Programmers should be aware that they will not only lose their program, but may be prosecuted directly for obscene broadcasts under both state and federal regulations. FCC policy on profanity and indecency has been subject to change in the past and may be again. The following policy reflects the managements understanding of current FCC requirements, in it sensitive language refers to indecency and/or profanity. PLEASE UNDERSTAND TIHAT IF THE FCC GETS A SINGLE COMPLAINT ABOUT KFCF AIRING SUCH LANGUAGE, WE CAN LEGALLY BE FINED. Deliberate abuse of this policy is grounds for a programmers dismissal.
It is station policy that:
1. Words that could be taken as obscene by any listener will not be used at any time in any on-air format (conversation, phone-in, taped material etc.). Participants should be told of this rule.
2. Guests and callers who use obscene words will be reminded of the rules after the first instance and immediately removed from the air if it continues to occur.
3. Any program material containing sensitive language must be cleared in writing with the PD or manager before being aired.
4. Programming containing sensitive language will only be aired between 10:00 p.m. and 6:00 am. The PD or manager must clear exceptions in writing.
5. Programming that may contain sensitive language will be prefaced by reading the following statement over the air:
LANGUAGE WARNING: The following programming contains sensitive language which may be considered unsuitable for children. Listener discretion is advised. This program will conclude at X oclock.
Ignorance is no excuse for airing obscenity or sensitive language at an improper time. Be aware that this policy includes music. You are responsible for what you air, including recorded material, and are expected to have previewed whatever goes out on your program.
Be aware these policies apply to all languages, not only to English. In addition, the FCC also requires that broadcasters reasonably screen out songs which promote drug use. More specific material regarding obscenity, profanity, and indecency may be obtained from the PD or manager.
Personal Attack Doctrine Repealed
The “personal attack” rule provided that, if an attack was made on a person’s integrity during the presentation of views on a controversial issue of public importance, the station had to inform that person or group attacked and provide a reasonable opportunity to respond. The rule was under scrutiny for over ten years because of First Amendment concerns that it chilled free speech. In 1999, the Court of Appeals for the District of Columbia ordered the Commission to explain its rationale for the rule. Radio-Television News Directors Association v. FCC, 184 F.3d 872 (D.C. Cir. 1999). In October 2000, the same court ordered the FCC to repeal the personal attack rule after the FCC took no action to justify the rule’s continued existence. Radio-Television News Directors Association v. FCC, 229 F.3d 269 (D.C. Cir. 2000).
On October 26, 2000, the FCC repealed the personal attack rule, but noted that it could, consistent with the D.C. Circuit’s order, institute a rulemaking proceeding to reinstitute the rule if, in the future, it found that the rule was in the public interest. In the Matter of Repeal or Modification of the Personal Attack and Political Editorial Rules, 15 FCC Rcd 20697 (2000).
According to the FCC, no programming may be aired that will violate the privacy or other rights of third person parties. Invasion Of Privacy may arise from
1. Intrusion upon the seclusion of another
2. Public disclosure of embarrassing private factors or unreasonable publicity given to a private life,
3. Publicity which places a person in a false light before the public, and
4. Appropriation of a persons name or likeness for commercial advantage.
California Civil Code Section 46 (first enacted in 1872) defines slander as… a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his officer, profession, trade, or business that has a natural tendency to lessen its profits;
4. Imputes to him impotence or a want of chastity; or
5. Which by natural consequence, causes actual damage.
Examples from California courts of statements found untrue and therefore slanderous under category no. 3 are: Statements that a school principal was about to be dropped because his superior considered him a weak spot in the school system; president of a nonprofit corporation called a liar and black sheep; statement that a master mariner was in the habit of getting drunk; calling an attorney a crook; accusing a car dealer of having a hot title.
The meaning of category no. 5 is that, even though the statement may not fall into one of the other categories, if it actually causes damage to a person (such as loss of a job or income) and is not true, it constitutes slander.
Truth is, of course, an absolute defense to a charge of slander.
Slander may arise from original material or material repeated from another source. In court, the origin of a slanderous statement is unimportant. For example, if a programmer repeats verbatim a slanderous remark made by another, even though the third party source is made clear, a slander lawsuit may result. Also, if a programmer encourages a guest to make slanderous statements or makes no reasonable effort to prevent such statements from being made, a slander lawsuit may result.
An organization or person sued for slander has the burden to prove that the statement was true. The person wronged by a slanderous statement made on KFCFs air may sue any or all of the following: KFCF Radio, Fresno Free College Foundation, the programmer, members of management, and individual board members.
Guidelines to help programmers avoid slander and inform them of their rights in the event that slander is charged:
1. If a programmer has a question about information or statements that she or he intends to broadcast or questions the style of a planned presentation, he or she must clear the broadcast with management. If a programmer follows this procedure, obtains Mitten approval, and is later sued for slander over the material approved, the station will provide a legal defense in the suit to the extent of its financial ability.
2. If slanderous material is inadvertently broadcast (i.e., by a phone caller or a guest who gave no prior indication that she or he planned to make the statement) and the programmer is sued, the station will provide a legal defense to the extent of its financial ability. The programmer is responsible, however, to exercise due care to prevent the utterance of slanderous statements. If a programmer suspects that a guest or phone caller is heading into a questionable area, the programmer should cut that person off immediately. If the statement is made before the programmer has time to do so, s/he should cut the caller off as soon as possible and immediately read the standard disclaimer.
3. If a programmer makes a statement that does not adhere to these slander guidelines or encourages others to make such statements, and if that programmer is sued for slander, the station is not obligated to provide a legal defense.
In the event that slander is charged, the PD and manager will meet with the programmer involved to verify what happened. This information will be given to an attorney who will advise on the next steps to be taken. Legal timelines will be followed and the programmer will be expected to be available for telephone or in-person meetings as necessary
Common sense and the truth are the best guidelines for avoiding a slander lawsuit. Programmers should be concerned for and respectful of the privacy and reputations of others. While truth is a defense to slander, it is not Sufficient that a programmer believes in the truth of the statement, or even that others have assured the programmer of the truth of the statement. Sensitive information must be carefully confirmed. While it is station policy to confirm accuracy and check sources before airing any information, you must be especially careful to adhere to this policy where the information may be damaging to a persons reputation.
KFCFs policy is to strive for truth and not shrink from controversy. A forum for free and informed debate is one of the most important services we can render. In no way is this policy intended to stifle controversy or investigation into areas which are uncomfortable for some people. This policy is intended, rather, to clarify the legal rights and responsibilities of programmers and to encourage respect for both truth and individual rights of privacy.
The FCC has rules regarding payments to individuals. KFCF has developed the following policy to conform to those rules. Any KFCF employee or volunteer who has any role in the selection of broadcast matter will not, on behalf of his or her own person,
1. Accept money, services, goods, or other valuable consideration from individuals, organizations, associations, or other entities to broadcast a program or program material, or
2. Promote any activity or matter in which he or she has a direct or indirect financial interest, or
3. Broadcast any material that, to his or her knowledge, requires sponsorship identification as outlined in the FCCs regulations and that does not include the required announcements.
Among other things, this policy means that you cannot accept tickets to an event for your own use in exchange for mentioning that event on the air. You can, however, accept tickets to give away to listeners on the air.
Detailed information regarding payola is found in Sections 317 and 508 of the Communications Act and the Commissions Rule 73.1212, both of which are found in the NFCB Legal Handbook. Consult the Program Director if you are unclear about the station policy or require more information.
Basic Principles: Reasonable Access, Equal Opportunities, Non-Censorship
The federal statutes on political broadcasting and the FCC regulations that implement those statutes are designed to address several basic concepts:
· That broadcasters will give all candidates “equal opportunities” to use broadcast stations. 47 U.S.C. §315(a)
· That candidates can speak without fear of censorship by broadcast stations. 47 U.S.C. §315(a)
· That all qualified candidates for federal elective office will have reasonable access to airtime on broadcast stations. 47 U.S.C. §312(a)(7)
· That the rates commercial stations charge for candidates’ use of airtime will be at least as low as the rates given to the station’s most favored advertisers. As discussed later in this chapter, noncommercial stations are prohibited from airing political ads, but may broadcast material for which they charge nothing. 47 U.S.C. §315(b)
The FCC’s rules focus on the consequences that arise when a candidate appears on, or “uses,” a broadcast station. The FCC’s rules do not address many other concerns that arise in the course of an election, such as coverage of public issues, balance between political parties, and internal party politics. This distinction is especially important in understanding the different requirements that apply to such situations as candidate appearances on newscasts, documentaries about a political campaign, and statements by candidate support groups.
In 1984, the FCC issued the Political Primer, a readable guide to the intricacies of the political broadcast rules, which remains a helpful, if dated, guide. In 1991 and 1992 the FCC systematically reviewed and revised its political broadcast rules. In the matter of Codification of the Commission’s Political Programming Policies, Report and Order, 7 FCC Rcd 678 (1992); In the matter of Codification of the Commission’s Political Programming Policies, Memorandum Opinion and Order, 7 FCC Rcd 1616 (1992); In the matter of Codification of the Commission’s Political Programming Policies, Memorandum Opinion and Order, 7 FCC Rcd 4611 (1992).
One change in the political broadcasting rules occurred immediately after the November 2000 elections. Congress amended the Communications Act to relieve noncommercial stations of their duty to provide “reasonable access” to federal candidates. This amendment grew out of well publicized demands that noncommercial stations air, for free, the same paid political spots that congressional and presidential candidates were running on commercial stations.
Who is a “Candidate?”
The Commission uses three criteria to define a legally qualified candidate. First, the person must publicly announce that he or she is a candidate. Second, the person must meet the qualifications for office prescribed by applicable federal, state, or local law. Third, the person must either qualify for a place on the ballot or seek election by write-in ballot and make a substantial showing that he or she is a bona fide candidate. The following examples illustrate these principles:
The candidate must meet the legally prescribed qualifications for office.
Station WXYZ has had the Republican and Democratic candidates for governor on the air. A candidate from the “Hip Hop party” calls up and demands airtime. She is nineteen years of age. Is station WXYZ obligated to give airtime?
If the Hip Hop party candidate met all the qualifications of law, the station would certainly be obligated to consider her request for airtime. If state law requires a person to be at least twenty-one years of age to hold the office of governor, however, the Hip Hop party candidate is not a legally qualified candidate and thus is not entitled to “equal opportunities.”
The Hip Hop party has registered a twenty-two year-old with the state as a candidate for governor. She meets all the legal qualifications, but it’s clear she’ll be lucky to get a smattering of votes. In the station management’s view, this person is not a serious candidate. Is the station obligated to afford her equal opportunities for airtime?
If a candidate is legally qualified, the political broadcast rules apply-even if it appears the candidate has no chance to win.
The political rules apply only to primaries and elections.
The issue of whether to recall a county commissioner has been placed on a ballot. The county commissioner appeared on station WXYZ. A councilman who is interested in holding that public office has demanded equal time. Must the station provide the councilman an equal opportunity for airtime?
No. The vote is on the issue of recall. Since there are no legally qualified candidates running for a public office, the political broadcast rules do not apply. If the recall ballot had been an election the candidate rules would have applied.
The political rules apply only to elections to a public office.
Station WXYZ recently aired a commentary by a woman who is seeking the “County Democratic Committee Chair.” A man claiming to be her opponent calls the station and demands time to respond.
The political rules apply only in situations in which a legally qualified candidate seeks public office. A party office may involve election by some members of the public, but a vote by members of the public does not necessarily make the office a “public office.” For clarification about whether an election is an election for public office, contact the secretary of state, state attorney general, or state election bureau.
The political rules apply only to election by the public.
The city council will vote to fill the unexpired term of a council member who resigned. Two people are seeking the post. The race is controversial. Do the political broadcast rules apply?
No. The political rules apply only in situations involving election by the general public.
The political rules apply only within a station’s community of service.
Station WXYZ serves towns A, B, and C. The station recently aired the views of a man who is running for the office of mayor in town D, located outside the station’s service area. The opposing candidate for mayor calls station WXYZ and demands equal time. She says that station WXYZ’s program will affect town D’s election process even if the signal does not reach that area. Do the political rules apply?
No. If the station’s broadcast signal does not reach at least one county in the district in which the candidate is running for office, the political rules do not apply. The reach of a station’s signal is determined by the station’s primary signal contour (that’s the 0.5 mV/m for AM stations, the 1 mV/m for FM stations)
What if in the above example WXYZ was carried on town D’s cable system?
Same answer. Candidates in communities where WXYZ is retransmitted by cable, the Internet, translators or boosters, would not be eligible for equal opportunities in the above example. The political rules apply only to a station’s broadcast coverage area. Cable systems are directly subject to political rules only when the cable system originates the political material.
The political rules distinguish between primaries and general elections.
The distinction affects the determination of when candidates are “opposing candidates.” Prior to the completion of primary elections, including any “run-offs,” candidates who seek the nomination of the same party for the same office are opposing candidates in a primary. Candidates seeking the nomination of different parties are not opposing candidates in the primary. After the primary, those competing for the same office are opposing candidates.
In the District of Columbia, Democrats outnumber Republicans by a huge ratio. The battle over the Democratic nomination for mayor is considered the “real race.” A station has devoted virtually all of its primary campaign coverage to the Democrats, and Republican candidates complain that their exclusion during the primary period hurts their visibility and thus their chances in the general election. Must the station provide more balanced treatment?
No. The political rules allow a licensee to decide what amounts of time to allocate to different races. The Democratic and Republican primaries are considered to be separate races. There is no requirement to balance the time devoted to the two races.
What is a “Use?”
Many of the FCC’s requirements are triggered by the “use” of a broadcast station by a political candidate. A use is defined as the broadcast of a candidate’s voice (or, in television, by the candidate’s picture or image). In general, a use by one candidate requires the broadcast station to provide to opposing candidates equal opportunities to use the station, if a timely demand is made.
Any programming that portrays the candidate in a positive light is considered a “use” unless it falls into one of the categories of exempt programming discussed below. This definition can result in some surprising “uses.” For example, when old Ronald Reagan movies, such as the chimpanzee comedy, Bedtime for Bonzo, were aired during one of Reagan’s political campaigns, other candidates were entitled to equal opportunities. Similarly, appearances by a celebrity candidate, that are unrelated to an election campaign, such as a public service spot promoting the United Way, would be considered a “use.”
Even if a public service announcement voiced by an incumbent official does not help the public understand the candidate’s political platform, such programming may promote a favorable image of the candidate and thus constitute a “use.”
In order to constitute a “use,” the candidate’s voice or image must appear in an identifiable and positive manner. In other words, Candidate X’s negative use of Candidate Y’s voice or image does not create equal opportunities for Candidate X or other candidates opposing Y.
Richard Smith, Randy Stenner and Robert Schneider are candidates for U.S. Congress. Schneider is the incumbent. Smith runs a spot on which Schneider says “I will not raise taxes,” followed by an announcer listing three tax increases for which Schneider voted. The spot ends with the announcer saying, “He did it before and he’ll do it again. Vote Smith.” Stenner demands equal opportunities based on Schneider’s appearance in the spot. Should his request be granted?
No. Smith’s spot does not cast Schneider in a positive manner and therefore does not give rise to equal opportunities.
Jim Thorn and Rita Daye are candidates for mayor. The Jim Thorn for Mayor Committee is given airtime. What are Rita Daye’s rights to airtime?
If the broadcast includes the voice of Jim Thorn (live or pre-recorded), Rita Daye is entitled to equal opportunities. If the broadcast does not contain the voice of Thorn, however, the answer is more complicated. The candidate rules are primarily designed to afford equal opportunities to individual candidates, not to committees or other members of the public. Political programming in which candidates themselves do not appear may nonetheless result in obligations for “quasi-equal opportunities” under what is known as the Zapple Doctrine. See the end of this chapter for a discussion of the Zapple Doctrine.
Jim Thorn and Rita Daye are candidates for mayor. A campaign by the All Bark No Bite Committee portrays Thorn as a sleeping dog, with Thorn’s head superimposed on a hound’s body. Daye demands equal opportunities. Is Thorn’s appearance a “use” by Thorn?
No. Thorn’s appearance in the spot is not positive, and is thus not a “use.” Also, coverage of the All Bark No Bite campaign presumably occurs in a newscast, an exempt program, as discussed in the next section.
Requirements related to candidate “use” apply only when a person actually becomes, or is designated as, a legally qualified candidate.
Jim Thorn, incumbent Democratic mayor, has a regular monthly ten-minute “constituent report” on station WXYZ. Rita Daye has been nominated as the Republican candidate for mayor. Jim Thorn has not formally announced his intentions, but it is generally assumed that he will seek another term on the Democratic ticket. Rita Daye requests equal opportunities from station WXYZ. Is she entitled to the time?
No. Until Jim Thorn becomes a legally qualified candidate for the office of mayor, Rita Daye is not entitled to equal opportunities afforded an opposing candidate. After Jim Thorn announces his candidacy for office, or is nominated for office, Rita Daye will be entitled to equal opportunities.
Bona fide newscasts, news interviews, news documentaries, and on-the-spot coverage of news events are exempt from equal opportunities requirements. A candidate’s appearance in these programs is not a “use.”
The Commission takes a number of factors into account in determining whether programs are exempt. Such factors include:
· Whether the program in question is regularly scheduled
· How long and how often the program has been on the station’s schedule
· Whether station staff produce or control program content (in whole or part), as opposed to programming produced by an outside source
· Whether the program is intended to advance the candidacy of a particular person
· Whether the candidate or topic is newsworthy
The Commission has held that the bona fide news coverage exemption extends to debates arranged and controlled by stations themselves. Petitions of Henry Geller, 95 F.C.C.2d 1236 (1983), aff’d sub nom., League of Women Voters v. FCC, 731 F.2d 995 (DC Cir. 1984). In order to be exempt, however, the debate must meet the following criteria:
· A decision to broadcast the debate must be a bona fide journalistic decision by the station and the format of the presentation must ultimately be determined by the station or by an independent third party
· There must be “structural safeguards” to ensure that no candidate will be favored or disfavored in the broadcast
· All station decisions, including the exclusion of certain candidates, must be based on view-point neutral, bona fide news judgments
Consider the following news programs the Commission has ruled exempt from equal opportunities provisions:
· Today, Good Morning America, Access Hollywood, Inside Edition, 60 Minutes, Meet the Press, Face the Nation, and (believe it or not) Entertainment Tonight.
· A regularly scheduled program in which the governor gives unrehearsed and unedited answers to questions from a group of area journalists. The program was produced by the station and had been on the air for two years.
· An A&E Biography series on current presidential candidates-this illustrates how a program that does not qualify for one exemption may qualify for another. In order for a documentary to be exempt, for example, the candidate’s appearance must be “incidental” to the program. The A&E Biography series did not qualify as a documentary because the candidate’s appearance was not incidental to the program, but the program was found to be exempt as a bona fide news interview program.
· A 30-minute news interview program run on a regular basis but lengthened to one hour for six weeks prior to the election. The Commission ruled that the length did not significantly alter the content of this regularly scheduled program.
· “Phone Forum,” a regularly scheduled program with a two-year run. Guests were selected by the station’s news department, and the same staff controlled selection of the phone callers to assure balance in the questions.
· A news interview program aired on station KABC, which was regularly rebroadcast several weeks later by station WXYZ.
· A documentary in which a candidate appeared for less than two minutes, and the appearance was incidental to the program.
· Coverage of political conventions.
· A broadcaster-sponsored debate covered live and in its entirety and broadcast on the basis of its newsworthy content. Delayed broadcast would also be exempt.
By contrast, the Commission has ruled the following programs were not exempt from equal opportunities provisions:
· A series of three news interview programs aired on station KABC from which station WXYZ sought to rebroadcast one program. Selection of the one program altered the initial balance of a three-program series.
· “Governor’s Forum,” a regularly scheduled program in which the incumbent governor selected letters he had received, and sent an edited, pre-recorded program to the broadcaster.
· A special interview scheduled with an incumbent. Despite complete editorial control by news staff and newsworthy content, the program did not meet the test for interview programs because it was not regularly scheduled.
· A program entitled “Know Your Congressman,” scheduled to begin eleven weeks prior to the election.
Whenever a legally qualified candidate makes “use” of a broadcast station in a non-exempt program, that station must afford all opposing candidates equal opportunities to air programming that reaches comparable audience size. The obligation is to provide “equal opportunities,” not equal time. For example, if one candidate has been given five minutes during peak audience, morning drive time, while an opposing candidate is given five minutes at 1:00 a.m., the two candidates would have been given equal time but not equal opportunities to communicate with the public.
A station is not obligated to contact candidates to offer “equal opportunities” after a competing candidate has appeared on the station. The station’s obligation is simply to place a record of use in its Public File as soon after the appearance as possible. Legally qualified opponents must assert their right to equal opportunities within seven days of the appearance by the first candidate, so prompt placement of a record of the appearance in the Public File is critical.
The right of “equal opportunities” may be exercised by candidates for any state, local or federal primary or election.
An announcer conducts a 30-minute interview program after he becomes a candidate for U.S. Congress. His opponent requests equal opportunities in the form of a series of 60-second announcements that total 30 minutes. Must the station comply with the opponent’s request?
No. The opponent is entitled to the same block of time as given the first candidate, in a comparable time period, but is not entitled to reconfigure the time into a series of 60-second spots. Generally, the opponent will only be entitled to equal opportunities for the amount of time the announcer/candidate is actually on the air, not the entire length of the program on which he or she appears.
Suppose a DJ becomes a legally qualified candidate for public office. Can the DJ continue to work at the station?
Yes, but each broadcast of the DJ/candidate’s voice will be a “use,” even if the DJ does not talk about his candidacy or discuss political issues. The opponents of the candidate would be entitled to demand equal opportunities based on the amount of time the DJ is on the air. There have been instances where opposing candidates have waived their rights to equal opportunities based on a DJ/candidate use, but opposing candidates are under no obligation to sign such waivers.
Slick and Shiny Car Wash is a frequent underwriter on a station. Sammy Slick, the owner of the car wash, recently became his party’s nominee for U.S. Senate. If the station continues to air Slick and Shiny Car Wash underwriting announcements, will it owe Sammy’s opponent equal opportunities?
It depends on whether the candidate’s voice is heard in the announcement. If Sammy’s voice is heard in the Slick and Shiny Car Wash announcements, then the underwriting announcements will constitute a “use” that will trigger the station’s equal opportunities obligations. If Sammy’s voice does is not heard in the announcement, no use will occur.
The following are further illustrations of how the “equal opportunities” principle is applied:
· When time is made available at different periods of the broadcast day, but with approximately equal audience potential during each, the equal opportunities requirement is met.
· Two opposing candidates are offered equal amounts of time in the same time slot, but one candidate uses more time than another. The second candidate has the right to request additional time, but must make its request within seven days of the opposing candidate’s appearance.
· A station invites only two of five competing candidates to participate in a station sponsored debate. If conducted in compliance with FCC guidelines, debates are exempt programs. The exclusion of some candidates from the debate is appropriate as long as the decision is based on “reasonable, viewpoint-neutral exercise of journalistic discretion.” Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, 118 S. Ct. 1633, 140 L. Ed. 2d 875 (1998).
· A station offers three candidates for state office the opportunity to appear on an interview program. Two candidates accept, but one candidate declines and the station withdraws its offer of time based upon its conclusion that the programs will be of interest to the public only if all candidates appear. As long as no actual use has occurred, no equal opportunity rights arise.
· A station offers four candidates the opportunity to appear on a program. Three candidates accept and the program airs. If the program qualifies for one of the exemptions, the fourth candidate is not entitled to equal opportunities. If the program is not an exempt program, the fourth candidate is entitled to equal opportunities even though he or she was unable or did not choose to participate in the program offered by the station.
· A station offers all candidates for an office an opportunity to appear on a program. The moderator of the program agrees on a format that should result in roughly equal amounts of time going to each candidate, but fails to enforce the procedure. One candidate receives approximately seventy-five percent of the airtime. The other candidate is entitled to additional time on the station.
Requests for Equal Opportunities
A station’s responsibility to provide “equal opportunities” extends for a seven-day period following the use of the station by a legally qualified opposing candidate. This “Seven-Day Rule” Section 73.1941(c) reads as follows:
A request for equal opportunities must be submitted to the licensee within one week of the day on which the first prior use, giving rise to the right of equal opportunities, occurred . . . A person requesting equal opportunities must have been a legally qualified candidate for the office in question at the time of such first prior use.
Mary LaForge has been making a weekly five-minute broadcast on behalf of her candidacy for Congress. After the fourth such broadcast, her opponent makes a request for twenty minutes of time.
LaForge’s opponent is entitled only to the amount of time used in the previous seven days: five minutes.
There are several key points to remember with regard to the timing of a request for equal opportunities. For example, only a “use” by a legally qualified candidate triggers the responsibility to provide equal opportunities, and only a legally qualified candidate can assert a claim for equal opportunities.
Paul Anderson has been nominated as the Democratic candidate for governor. Alice Pibble, the current lieutenant governor, is running unopposed for the Republican gubernatorial nomination but has not yet been officially nominated. Pibble appears on a candidate forum and denounces Anderson as a “prisoner of special interests.” Anderson claims a right to equal opportunities to respond.
Since Pibble is not yet a legally qualified candidate for governor, but only for her party’s nomination, her appearance on the candidate forum does not create an equal opportunities obligation with respect to candidates for governor. Anderson’s claim is thus invalid.
In the above example, could the station comply with Anderson’s request?
Yes, but if Anderson’s response is a use, it would trigger equal opportunities rights for any other person who is a legally qualified candidate in the Democratic primary.
Same situation as above: Paul Anderson has the Democratic nomination for governor and Alice Pibble is unopposed in seeking the Republican nomination. Immediately after his nomination, Anderson, in a non-exempt program, directly attacks Pibble as incompetent. Pibble demands an equal opportunity to respond.
Since Pibble is not yet a candidate for governor, she is not an opponent of Anderson and cannot assert an equal opportunity claim.
The Republicans nominate Pibble three weeks after Anderson’s campaign began. Anderson continues his attacks on Pibble in a non-exempt program the morning after her nomination. Pibble again makes an equal opportunities claim.
Pibble’s claim is now valid, provided she makes the claim within seven days of Anderson’s “morning after” message. She cannot claim equal opportunities for the broadcasts prior to her nomination.
When there are multiple opposing candidates, the initial broadcast date triggers the seven-day request period.
Candidate #1 appears in a non-exempt program on station WXYZ. Candidate #2 requests equal opportunities within seven days of that broadcast. Candidate #2 appears on station WXYZ. Candidate #3 requests equal opportunities based on candidate #2’s airtime, but candidate #3’s request for airtime is made more than seven days after the appearance of candidate #1. The station is not obligated to afford equal opportunities to candidate #3 because the request for airtime was not made in a timely fashion.
If a station announces a scheduled appearance by a candidate, that candidate’s opposition can request equal opportunities prior to the actual use. The obligation to provide the equal opportunities does not arise until the scheduled appearance has taken place.
A station decides to broadcast a special series of four weekly interviews with the Democratic and Republican nominees for U.S. Representative. Within seven days of the first interviews, the candidate of the Reform Party makes an equal opportunity claim. That claim may be asserted not only with respect to the first interviews, but also with respect to the three interviews scheduled to take place subsequently.
If a licensee mistakenly denies equal opportunities due a candidate, the Commission expects that the first step in remedying the situation will be an attempt by the licensee and candidate to work out a mutually acceptable solution. If the licensee and candidate are unable to reach an agreement, FCC staff will usually try to resolve the issues informally. If the candidate remains dissatisfied, he or she can file a formal complaint with the FCC.
The Commission has noted that even if timely requests for equal opportunities are made under the Seven-Day Rule, a “licensee may be called upon to exercise reasonable judgment in affording ‘equal opportunities,’ particularly where there has been an accumulation of time.” Complaint of Emerson Stone, Jr., 40 FCC 385 (1964). This flexibility should only be used if last-minute requests for equal opportunities would deluge the air with candidate statements or preclude a fair chance for messages by all opposing candidates.
Censorship of Candidates
Section 315 of the Communications Act prohibits broadcasters from censoring a candidate’s statements-even candidate statements that are libelous, indecent, or likely to incite racial hatred or violence.
Stations cannot force candidates to sign an indemnity agreement. The Supreme Court has ruled that licensees are immune from suits for libelous statements made by candidates and that to require a formal indemnification agreement would have a chilling effect on a candidate’s proclivity to use a station. Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY, Inc., 360 U.S. 525, 535 (1959).
Broadcasters cannot require that a candidate appear live or that a program be pre-recorded, review the candidate’s programming material in order to make changes in the content, insist that a candidate discuss certain issues or refrain from discussing certain issues, or require the candidate to include or exclude the other individuals in the broadcast.
A station is entitled to take a few measures to assure compliance with the political rules. To ascertain the “equal opportunities” obligations that may be incurred by a candidate’s use of the station, as well as to assure compliance with other FCC requirements, broadcasters may request an advance script or tape to check such matters as length of the broadcast, proper sponsor identification announcements, or actual appearance of the candidate. Primer on Political Broadcasting and Cablecasting, 100 FCC 2d 1476, 1512 (1984).
The anti-censorship restrictions apply only to programming that would constitute a “use.” See WMUR-TV, Inc., 11 FCC Rcd., 2728 (1996). Other politically oriented programming is subject only to the usual content-related considerations. Such programming includes statements by a candidate’s supporters in which the candidate does not participate, and news and information programming that is specifically exempted from the candidate rules as discussed above. In these cases, a station is free to control program content, specify program format, and apply normal editing procedures.
Broadcasters may be liable for defamatory programming that is not a “use.” It would be entirely proper for a station to refuse to broadcast a program by a campaign committee or a political action committee (PAC) if the station concludes that the content is potentially libelous. Felix v. Westinghouse Radio Stations, 186 F. 2d, (3d Cir. 1950), cert. denied, 314 U.S. 909 (1950).
While a wide range of programming may serve the public interest, Congress historically elevated access to airtime by candidates for federal office to a unique status. Until recently, all broadcast stations were required to provide reasonable access to any candidate for federal elective office who requests such time.
In December 2000, an eleventh-hour addition to an Omnibus Budget Bill exempted noncommercial stations from the federal access provision of the Communications Act and forbade the FCC from taking action against any noncommercial educational station that declined to carry a political advertisement.
The amended Section 312 of the Communications Act now reads:
· The [Federal Communications] Commission may revoke any station license or construction permit-
· (7) for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station, other than a noncommercial educational broadcast station, by a legally qualified candidate for Federal elective office on behalf of his candidacy.
The full impact of the amended language may not be known until the Commission is faced with specific cases. Until then, noncommercial educational stations should assume that the only purpose of the statutory language is to relieve them of the duty to grant demands for reasonable access. Public stations are presumably not relieved of duties to comply with equal opportunities, sponsorship identification, and public file requirements.
Before Congress exempted noncommercial educational stations from granting access to federal candidates, a station had to make its “reasonableness” determination on a case-by-case basis. In deciding whether a request for time is reasonable, a station could consider such practical factors as the number of candidates in a race, and the amount of time requested. Carter/Mondale Presidential Committee, Inc., 453 U.S. 367, 387 (1981)
The Zapple Doctrine
The Zapple Doctrine is a cousin of the Fairness Doctrine, which is triggered when supporters of candidate A advocate A’s election or oppose the election of B, A’s opponent. The Doctrine has limited applicability for noncommercial radio, because of the bans on political ads and political editorials. The demise of the Fairness Doctrine in 1987 has also created doubts as to the constitutionality of the Zapple Doctrine. The Zapple Doctrine is still enforced by the FCC, however.
The Zapple Doctrine requires that in particular situations broadcasters afford “quasi equal opportunities.” Letter to Nicholas Zapple, 23 FCC 2d 707; First Report, 36 FCC 2d 40 (1972). The Zapple Doctrine applies to broadcasts by supporters of legally qualified candidates in which no candidate actually appears.
Even though such broadcasts do not constitute a “use,” the Commission recognizes the broadcasts are “in the political arena” and has required that when such broadcasts are made, the licensee must, if requested, provide comparable amounts of time, under comparable circumstances, to an opposing candidate or to an opposing candidate’s supporters for a similar message. (Note the programming flexibility that is left to the broadcaster.) The Commission has emphasized that obligations outlined under the Zapple Doctrine are limited to formal campaign periods, apply only to major political parties, and do not apply to programming exempt from equal opportunities (bona fide news, etc.). In the Matter of The Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act, First Report, 36 FCC 2d 40 (1972).
Special Rules for Public Stations
Most of the political broadcast rules apply to commercial and noncommercial broadcasters alike, some special restrictions and exemptions apply only to public stations. The Communications Act contains four provisions that ban certain types of programming on noncommercial stations: (1) political editorials; (2) political ads; and (3) issue ads.
The rule with respect to political editorials is simple. “No noncommercial educational broadcasting station may support or oppose any candidate for political office.” 47 U.S.C. § 399 This ban applies only to licensee endorsement of or opposition to particular candidates. It does not exclude the expression of political views by candidates or other parties over a public station. In fact, the candidate rules encourage the discussion of political issues. On-air personnel should, however, be carefully instructed to refrain from making statements that suggest the station supports or opposes any candidate.
The Communications Act bars public broadcasting stations from presenting political “advertisements.” A political advertisement is defined as “any message or other programming material broadcast or otherwise transmitted in exchange for any remuneration and which is intended . . . to support or oppose any candidate for political office.” 47 U.S.C. § 399B
Section 399B of the Communications Act also bans “issue ads.” This ban includes programming, broadcast in exchange for remuneration, that expresses “the views of any person with respect to any matter of public importance or interest.” The ban on issue ads thus includes, but is broader than, ads which advocate a position on a political topic. The ban applies to programming which express a view “with respect to any matter of public importance or interest,” and is not limited to political candidates or political campaign groups. It applies to “any person”-even other nonprofit organizations-who offer to remunerate a station for expressing a “view.
Historically, the ban on political editorials, political ads and issue ads did not relieve the station of its duty to grant candidates for federal office “reasonable access.” In fact, Section 312(a)(7) of the Communications Act provided that the Commission could revoke any station license or construction permit for failure to allow reasonable access to a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy. The FCC reconciled these conflicting directives by requiring public stations to grant federal candidates “reasonable access,” but at no charge. Public stations were entitled to charge only for expenses incurred in producing a political spot for a candidate. As discussed above, noncommercial stations have not been exempted from the “reasonable access” requirements.
The sponsorship identification rule requires that when a station transmits any matter in exchange for the payment or promise of any consideration-including programming furnished by the sponsor-the station must air a complete sponsor identification. Stations may insert the sponsor ID into any programming that fails to include it even if the insertion causes the spot to be modified. If time prohibits adding the ID, the licensee may air the spot without the proper identification, so long as the ID is added before the next airing. The identification must appear at the beginning and end of any program longer than five minutes.
A sponsorship identification must state that the political announcement is “sponsored by” or “furnished by” the specific entity on behalf of whom such announcement is made. While there is no absolute formula for the length or format of a sponsorship ID announcement, the audience must be accurately informed as to who sponsored the spot. Design Media, Inc., 5 FCC Rcd. 5584 (1990). For example, “Friends of Al Konyers” may be too general unless it is the official name of the entity. Letter to KOOL Radio-Television, Inc., 26 FCC 2d 42 (1970). Stations need not be private investigators, but they must use “reasonable diligence” to confirm that the sponsor identified is truly the entity behind the spot.
Public File Requirements
A station must keep a “political file” as a part of its Public File The political file requires that, for a period of two years, stations keep the following records in this “political file”:
· A record of all requests for broadcast time made by or on behalf of candidates
· A record of the station’s response-positive or negative-to any request for time by or on behalf of a candidate, and the charge made
· A record of any use
Equal opportunities means that the station must make available the same length of time with an audience potential comparable to that of the first candidate.
To be eligible for equal opportunities, a person must be a legally qualified candidate for office. To be legally qualified, a person must A. publicly announce his or her candidacy and EITHER B. meet Californias requirements to be on the ballot, OR C. make a substantial showing that s/he is a bona fide write-in candidate.
An opponents request for equal opportunities must be made within seven days of the first use. The station is not obliged to contact candidate B. However, the station has a duty to place information about the use in its political file, which is part of the public file. Programmers are therefore required to provide the PD with all information about a use on their program.
Certain situations are exempt from the use requirements.
1. bona fide newscasts bona fide news documentaries
2. on the spot coverage of bona fide new events
3. bona fide news interviews
If the station grants access to an individual or group promoting candidate A and the group does not actually use the candidates voice, the station must also provide quasi-equal opportunity. to a comparable group supporting candidate B (providing Bs supporters make their request within seven days of the broadcast). This rule only applies to major candidates and major opponents. We are not required to give air time to fringe opponents (although you may elect to do so).
Issue programs can involve subtle issues as to whether “consideration” is received. The furnishing of a program is generally deemed to be “consideration” for broadcasting that program. In order to allow stations to broadcast free programs, however, FCC rules permit stations to receive programs and production costs from third parties, if no additional consideration is received.. Thus, if a station is supplied with a series of commentaries addressing public issues, and no other consideration is involved, the station may broadcast such programming, provided it airs a sponsorship announcement disclosing that the material had been furnished.
Similarly, if in the course of meeting its obligations to provide “equal opportunities” to a political candidate, a station receives material produced by the candidate’s campaign organization, it may broadcast such material, along with an appropriate sponsorship identification.
A station may not, however, broadcast any matter that expresses a view on a public issue or supports or opposes a political candidate, if it receives consideration beyond the program or the costs incurred in producing it. There is no nonprofit exception to this rule.
The restrictions on issue and political ads are designed to provide “insulation of program control and content from the influence of special interests-be they commercial, political or religious.” As long as (1) the station determines which views are heard by applying a public interest rather than a partisan standard; and (2) does not receive donations or underwriting contingent upon the exclusive presentation of a particular view, support for issue-oriented and political programming is acceptable.
Additional information regarding political broadcasting may be obtained from the PD.
A telephone conversation begins the moment a party answers the phone. Therefore, a party’s “hello” on the air or on tape before the required notification is given violates the rule. The rule requires a station to “inform” members of the public that the call is “being broadcast live” or “being recorded for broadcast” prior to the broadcast.
Express notification is not necessary when it is obvious from the circumstances that the conversation is likely to be broadcast. For instance, the rule presumes a person’s awareness that a conversation will be aired if that person originates the call to a call-in show or if the person is associated with the station (such as an employee or part-time reporter).
Violations may occur when callers are given misleading information. For example, nationally syndicated shock jocks Don Geronimo and Mike O’Meara pushed the telephone conversation rule’s limits too far by informing a caller she was being placed on hold, while they continued to broadcast her private (and quite personal) conversation with her sister. Infinity Broadcasting Corp. of Washington, D.C., Licensee Radio Station WJFK-FM, Manassas, VA, 14 FCC Rcd. 5539 (1999).
Although the caller was informed at the outset that her conversation was being broadcast live, the FCC found that she reasonably believed her “on hold” conversation was private. Even after the embarrassed caller settled a civil suit against two stations that aired the program and withdrew her FCC complaints regarding the matter, the FCC issued a $4,000 fine to the stations. The fact that the stations were broadcasting a syndicated program rather than originating the program was also found to be irrelevant-the licensee was held responsible for the content of any material broadcast on its station, regardless of the source.
Broadcasters have periodically sought to have the telephone rule changed in order to allow stations to record or broadcast conversations that are spontaneous and unguarded. The Commission has always rejected elimination of the rule on grounds that it protects the private citizen’s right to privacy. Broadcast of Telephone Conversations, 3 FCC Rcd. 5461 (1988).
How Stations Handle the Prior Notification Rule
The prior notification requirements outlaw “ambush interviews,” in which a reporter gets on the air, telephones a party, and simply broadcasts that conversation live without telling the other party what is happening. The rule also prohibits live out-going calls to unsuspecting members of the public. An announcement that “This is Susan Smith of station WXYZ and you’re being broadcast live” does not satisfy the prior notification requirement if the party called is already on the air. Stations may, however, call a party and, immediately, advise the party that the call will be broadcast, and then put the call on the air.
Licensee Control During Live Telephone Broadcasts
A licensee is generally responsible for any and all material it broadcasts. Statements by members of the public during the course of a live telephone call-in program are no exception. Programs devoted to controversial issues require a high alert. Content issues are more likely to arise during a discussion of AIDS than during a discussion of cooking techniques.
APPENDIX C —- INDECENCY AND OBSCENITY
The Commission does not monitor broadcasts for content. Its enforcement actions are based on complaints of indecent or obscene broadcasting received from the public.
Stations must be prepared to defend everything they broadcast. While the Commission treads carefully in the area of program content, it is strict with regard to licensee control. The Commission will have little sympathy for a licensee that defends a questionable broadcast by stating, “We had no idea anybody was going to play records like that.” Such a statement is tantamount to admitting that the licensee is not in control of the airwaves entrusted to it.
Clear station policies and prompt, consistent enforcement of those policies are essential to demonstrate that a licensee exercises control over its programs
Two statutory provisions are relevant to the broadcast of obscene, indecent, or profane language:
· Whoever utters any obscene, indecent, or profane language by means of radio communications shall be fined not more than $10,000, or imprisoned not more than two years, or both. 18 US.C § 1464
· Nothing in this [Communications] Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication. 47 U.S.C. §326
As these provisions indicate, the Commission must walk a fine line between its obligation to penalize licensees who break the law and its inability to interfere with the licensee’s rights of free speech. The tension between these competing duties is addressed in a number of judicial and administrative decisions, as are the distinctions between obscene and indecent material.
FCC rules prohibit broadcasters from transmitting obscene material at any time. The Supreme Court has determined that three elements must be present for material to be considered obscene:
· An average person, applying contemporary community standards, would find that the material, taken as a whole, appeals to the prurient interest
· The material depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable law
· The material, taken as a whole, lacks serious literary, artistic, political, or scientific value Miller v. California, 413 US. 15, (1973).
What does this mean in practical terms? In one case, Morality in Media of Massachusetts, Inc., filed a petition to deny the license renewal of WGBH-TV of Boston, Massachusetts. WGBH Educational Foundation, 69 FCC 2d 1250, (1978). Morality in Media contended that the station had repeatedly broadcast offensive, vulgar, and other material harmful to children without adequate supervision or parental warnings. Among the programs cited were “Monty Python’s Flying Circus” and “Masterpiece Theatre.” Morality in Media claimed the programs were obscene.
The FCC denied this petition. It pointed out that the FCC was prohibited by the First Amendment and by Section 326 of the Communications Act from censoring broadcast matter and held that Morality in Media had failed to show that the programs cited met the legal definition of obscenity. For example, Morality in Media did not indicate which programs appealed predominantly to the prurient interest of minors, nor did Morality in Media show that the programs lacked serious literary, artistic, political, or scientific value for minors.
While the above discussion illustrates the Commission’s cautious approach in the area of obscene programming, there have been several instances in which the FCC has taken action against broadcasters for obscene programming. Probably the best known such case concerning a noncommercial station involved WXPN-FM, a Philadelphia station licensed to the University of Pennsylvania. In December, 1975, WXPN-FM was fined two thousand dollars for the broadcast of obscene material in connection with a live, weekly, call-in program, “The Vegetable Report.” Notice to Trustees of the University of Pennsylvania of Apparent Liability for Forfeiture, 57 F.C.C. 2d 782 (1975). During the shows in question, callers carried on sexually explicit conversations with the disc jockeys that included the words “fuck,” “piss,” and “titties” and discussed “beating off” and “blow jobs.” During one call, a three-year old boy was asked if he could say “fuck” and the mother of the boy was told that she should let her son “screw” her so he wouldn’t turn out to be a rapist.
The Commission’s harshest action against WXPN was not based on the obscenity, but on the lack of control by the university licensee. When the station’s license came up for renewal, the Commission denied the renewal. The University had to reapply for its frequency and face the risk of competition from other parties. Application of the Trustees of the University of Pennsylvania Radio Station WXPN(FM), Philadelphia, Pennsylvania for Renewal of License, 69 F.C.C.2d 1394 (1978). Miraculously, the University’s construction permit application was approved and the University got the station back.
Unlike obscene material, indecent material is protected speech under the Constitution. It is channeled to certain hours, not banned altogether. The FCC’s rules limit the time period in which indecent material may be broadcast to the hours between 10:00 p.m. and 6:00 a.m. Section 73.3999(b) The broadcast of any indecent programming outside this “safe harbor” period is prohibited.
The FCC defines indecency as language that:
describes, in context, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs. Infinity Broadcasting Corporation of Pennsylvania, 2 FCC Rcd 2705 (1987) (subsequent history omitted), citing Pacifica Foundation, 56 FCC 2d 94, 98 (1975), aff’d sub nom. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
While this definition is similar to that for obscenity, there are three important differences. First, obscenity requires that the language in question appeals to the prurient interest; indecent language need not. Indecent speech need refer only to sexual or excretory activities or organs in a “patently offensive” way. Second, material is obscene only if it lacks any literary, artistic, political, or scientific value. A great literary work is never obscene, but may be indecent. Merit is relevant to the issue of whether material is indecent, but is not a complete defense. Third, obscenity is defined by reference to local community standards; indecency by a single national standard “for the broadcast medium.” Local community values are irrelevant to the issue of whether a work is indecent.
The “Seven Dirty Words.”
The standard initially used by the FCC in enforcing the indecency standard was determined by, and for many years narrowly limited to, the language in a satiric George Carlin routine. This case was considered by the United States Supreme Court in 1978. FCC v. Pacifica Foundation, 56 FCC 2d 94 (1975), affd. 438 U.S. 726 (1978). The Supreme Court upheld an FCC ruling that comedian George Carlin’s twelve-minute monologue, “Filthy Words,” broadcast at 2 p.m. when children were likely to be in the audience, was indecent. Carlin’s monologue repeatedly used what became known as the “seven dirty words”: fuck, shit, piss, motherfucker, cocksucker, cunt and tit. The Pacifica decision affirmed the Commission’s constitutional authority to regulate indecent speech and “channel” the “repetitive, deliberate use” of words that referred to excretory or sexual activities or organs in an offensive fashion. For almost a decade after Pacifica, the Commission limited its enforcement of Section 1464 to those broadcasts which repeatedly used the “seven dirty words” before 10:00 p.m.
In April 1987, the Commission issued a Public Notice that expanded the definition of indecency and the FCC’s enforcement policy. Indecency Enforcement Standards, 2 FCC Rcd. 2726 (1987). The Public Notice summarized three concurrently released decisions which found several broadcasts, which would not have been found indecent under the prior FCC standard, would violate the new standard. Two of the broadcasts had aired after 10:00 p.m. (Ironically, one of the broadcasts, which involved dramatic readings from a play describing gay sex, was aired by a station licensed to the Pacifica Foundation.) The Public Notice announced that the definition of indecency would no longer be limited to Carlin’s “seven dirty words,” but would thereafter extend to any material found indecent under a broad, “generic” definition of indecency. This expanded definition not only included graphic descriptions, but innuendo and indirect allusions. The new definition would be enforced whenever there was a reasonable risk that children would be in the audience.
On reconsideration, the FCC defined a “safe harbor” period and clarified other aspects of its new policy. Broadcasters were not given leeway to make reasonable, good faith judgments as to what was indecent. Instead, broadcasters would be strictly liable for weighing a “host of variables” that made up the “context” of the material. Variables which the broadcaster had to weigh included the “vulgar” or “shocking” nature of the language or imagery at issue, the “manner” of presentation, consideration of whether the material in question was isolated or fleeting, and the merit of a work. The Commission hastened to add that merit was simply one of many variables, and that it was entitled to no greater weight or respect than any other variable. 2 FCC Rcd 2726 (1987).
The Action For Children’s Television (“Act”) Cases: Act I.
The Commission’s indecency standard was reviewed and invalidated in part by the Court of Appeals for the District of Columbia Circuit in Action for Children’s Television v. FCC, 852 F.2d 1332 (DC Cir. 1998) (“Act I”). The Court found itself “impelled” to affirm the “less than precise” definition of indecency, because that definition was derived from the Supreme Court’s Pacifica decision. A determination that the standard was unconstitutionally vague would have to be left to “higher authority.” Merit, the Court found, although properly a factor considered by the FCC in its analysis, did not automatically “immunize” indecent material from FCC channeling authority. The Court did, however, strike down the “safe harbor” period that had been prescribed (then midnight to 6 a.m.) as arbitrary and capricious. The Court found that the Commission had not only failed to explain how the proposed safe harbor would achieve the government’s interest of helping parents supervise their children’s listening, but had failed to explain what constituted a “risk” to children.
The Court remanded the case to the FCC for a “full and fair hearing” to determine an appropriate “safe harbor” period. The Court instructed the FCC to keep in mind that indecent material is protected by the First Amendment, and that “the FCC may regulate such material only with a due respect for the high value our Constitution places on freedom and choice in what people say and hear.” Act I at 1334.
In the wake of the Act I decision, Congress stepped in and directed the FCC to promulgate regulations imposing a 24-hour ban on broadcast indecency.
Six months later, the Supreme Court decided Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989), which struck down a 24-hour ban on indecent telephone services. In Sable, the Court reaffirmed that “sexual expression which is indecent but not obscene” deserves full First Amendment protection and can only be proscribed if government chooses the least restrictive means to further a compelling governmental interest. The means chosen must be carefully tailored to achieve those ends without unnecessarily interfering with First Amendment freedoms.
In spite of the Sable decision, the Commission followed the Congressional directive and imposed a 24-hour ban on indecent broadcasts. The Commission declined to consider “individual station data” on grounds that “such data are unnecessary to determine children’s listening and viewing habits.” Notice of Inquiry, 4 FCC Rcd. 8358 at 8361, 8366 n. 30 (1989). The Commission instead relied on composite, national listening and viewing data to support its conclusion that there was a reasonable risk that significant numbers of children (ages 17 and under) listen to radio and view television at all times without “active” parental supervision. Report and Order, 5 FCC Rcd. 5297 at 5306 (1990).
The Action For Children’s Television (“Act”) Cases: Act II
The Commission’s generic definition of indecency and the 24-hour ban were again challenged in the D.C. Court of Appeals in Action for Children’s Television v. FCC (“Act II”), 932 F.2d 1504 (D.C. Cir. 1991). Although the Court again rejected the challengers’ argument that the definition of indecency was unconstitutionally vague, it struck down the 24-hour ban. The court stressed that the Supreme Court’s decision in Sable affirmed the protected status of indecent speech and the strict constitutional standard that government regulations of such speech must satisfy. The Court again ordered the Commission to conduct a “full and fair” hearing” to determine the times indecent speech could be broadcast. As part of this inquiry, the Court again instructed the Commission to consider the appropriate definition of children and what constituted a “reasonable risk” of exposing children to indecent material, program-specific audience data broken down by age group, and the scope of the government’s interest in regulating indecent broadcasts.
Before the FCC could implement the court’s mandate, Congress again intervened by enacting the Public Telecommunications Act of 1992. Section 16(a) of the Act directed the FCC to promulgate a rule banning indecent broadcasts from 6 a.m. to midnight. The Commission, accordingly, again solicited public comment, and issued a rule implementing the Congressional mandate.
The Action For Children’s Television (“Act”) Cases: Act III
In Action for Children’s Television v. FCC (“Act III”), 11 F. 3d 170 (D.C. Cir. 1993), a panel of the D.C. Circuit unanimously struck down Section 16(a) on the grounds that it was not “narrowly . . . tailored” to avoid “unnecessary abridgment of First Amendment rights. ” The Court found that the 6:00 a.m. to midnight ban was not the least restrictive means to advance the Commission’s asserted interest of protecting children since it did not provide adults with a reasonable period during which they could “exercise a meaningful choice to view the material while still awake.” Act III at 182. Nor had the Commission demonstrated that the government’s interest in protecting children outweighs the First Amendment rights of adults and older minors in receiving such protected material.
The Court again remanded the case to the FCC to conduct a “full and fair hearing” to determine an appropriate “safe harbor” and to review and address concerns the court had raised in Act I and Act II.
The Action For Children’s Television (“Act”) Cases: Act IV
Before the Commission acted on the Act III mandate, all the judges on the Court of Appeals re-heard the case, and in a 7 to 4 opinion, reversed the prior decision of the three-judge panel. Action for Children’s Television v. FCC, 58 F. 3d 654 (D.C. Cir. 1994) (“Act IV”). The 6 a.m. to midnight ban on indecent broadcasts was upheld as constitutional. Because there was a reasonable risk that children would be in the audience during the restricted hours, and because, the Court held, the safe harbor period would provide an opportunity for “adult” programming, the proposed rule would effectuate the goal of protecting children from indecent broadcasts without unduly restricting the First Amendment rights of adults. The Court concluded that “although the restrictions burden the rights of many adults, it seems entirely appropriate that the marginal inconvenience of some adults be made to yield to the imperative needs of the young.” Act IV at 667.
The Court also addressed an exception in the regulations which allowed public radio and television stations that went off the air at or before midnight to broadcast indecent programming beginning at 10 p.m. The court found this distinction to be unjustified. The less restrictive approach was to enforce a 6 a.m. to 10 p.m. ban for all stations.
The Supreme Court chose not to hear an appeal of the Act IV decision (Action for Children’s Television v. FCC, 58 F.3d 654, D.C. Cir., 1995), cert. denied, 516 U.S. 1043, 1996), and thus indirectly upheld the FCC’s enforcement of its generic definition of indecency and the 6 a.m. to 10 p.m. safe harbor period.
In March 2001, The FCC released a Policy Statement to illustrate its interpretation of the indecency standard. In the Matter of Industry Guidance On the Commission’s Case Law Interpreting 18 U.S.C. §1464 and Enforcement Policies Regarding Broadcast Indecency, 2001 FCC Lexis 1889 the “Policy Statement”). The Policy Statement reviewed FCC indecency rulings and identified three basic principles underlying its decisions. These are:
· whether the description or depiction of sexual or excretory activities is explicit or graphic;
· whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and
· whether the material panders or titillates, or is presented for its shock value.
The particular weight given each of these, and other factors, depends on the overall “context” of the broadcast. Policy Statement, paragraph 5.
Explicit/Graphic Description Versus Indirectness/Implication
The first issue the FCC considers is whether the material “depicts or describes” sexual or excretory activities or organs. The more explicit or graphic the description or depiction, the greater the likelihood that the material will be considered patently offensive and, thus, indecent. Policy Statement, paragraph 12. The FCC issued either a warning or a Notice of Apparent Liability after finding that the language in question was immediately understandable as sexual in nature. Policy Statement, paragraph 13.
Even in cases involving innuendo or double entendre rather than explicit references to sex or excretion, the FCC has found language to be indecent where the context of the language made the sexual or excretory import “unmistakable.” Policy Statement, paragraph 14 (e.g., “Candy Wrapper,” a song which uses the names of different kinds of candy to suggest sexual organs and activities).
In some cases, the FCC did not find material to be indecent, despite sexual innuendo, because the context of the broadcast did not have “inescapable sexual import.” Policy Statement, paragraph 15 (e.g., a suggestive description of a Peterbuilt truck as “Big Peter”).
Otherwise indecent material may not be actionably indecent if such material is edited or “bleeped out.” The editing must be effective, however. If portions of the indecent material are understandable, the FCC may still find the material indecent. Policy Statement, paragraph 16 (e.g., “What’s up fu(bleep)ck head“).
Dwelling/Repetition Versus Fleeting Reference
The more repetitive the references to sexual or excretory material are, the more likely the FCC is to find the material indecent. Policy Statement, paragraph 17. In a few cases, the FCC has found that fleeting or isolated references to sex or excretion are not indecent. These cases grant the broadcaster some latitude for spontaneous remarks made during live broadcasts. Policy Statement, paragraph 18 (e.g., a single usage of the word “mother fucker”).
All factors are not created equal. For example, offensive references to sexual activities with children or extremely graphic sexual material have been found indecent even when the references are fleeting. Policy Statement, paragraph 19 (e.g., a joke about “screwing an eight-year old”).
Presented In A Pandering Or Titillating Manner Or For Shock Value
An analysis of “context” includes more than a verbal analysis of the language used. The FCC considers the “purpose” for which the material is presented. A sexual act graphically described on a radio program for the purpose of titillating, sexually arousing, or amusing listeners, is more likely to be found indecent than similar language used in a bona fide news program or medical program, even if explicit language is used. Context is the most important factor in determining “purpose.” Policy Statement, paragraphs 20 and 21 (e.g., a sex education program for teens was not considered indecent because the material was presented in a clinical or instructional manner).
One inaccurate conclusion to draw is that a “news” context is an absolute defense to an indecency complaint. The newsworthiness of a particular topic does not immunize the programs from an indecency ruling if the topic is presented in a pandering or titillating manner. Policy Statement, paragraph 22 (e.g., banter about the alleged rape of Jessica Hahn by the Rev. Jim Baker).
Similarly, the absence of a lascivious purpose is not an absolute defense. References to sexual activities or organs may be patently offensive even if those references are not pandering or titillating. Policy Statement, paragraph 23 (e.g., “Penis Envy,” a satiric song about what a woman would do if she had a penis).
Although broadcasters are required to apply these less-than-precise indecency standards with unerring accuracy, the FCC gets to make mistakes. The Commissioners may reconsider and reverse a staff ruling, or Enforcement Bureau staff may reverse an earlier decision. For example, after fining a commercial station $7,000 for airing an edited version of the Eminem song, “The Real Slim Shady,” outside the harbor period, the Enforcement Bureau rescinded the fine and concluded that the sexual references (e.g., “My bum on your lips”) contained only “oblique” sexual references that were not “patently offensive” after all. Citadel Broadcasting Company, DA 02-23 (Enforcement Bureau, January 8, 2002).
The FCC’s Enforcement Process
The FCC does not monitor broadcasts for indecent material, but relies on complaints from the public. What the FCC wants is unclear at this time. Previously the FCC said that complaints will be considered by FCC staff if they include 1) a full or partial tape or transcript of the offending program; 2) the date and time of the broadcast; and 3) the call sign of the station that aired the program. If staff concludes that they do not have enough information to determine whether a program is indecent, or if the allegedly indecent material was aired during the “safe harbor” period, the complaint will be dismissed with a letter from the staff to the complainant. If the staff concludes that the material meets the definition of indecency, and it was broadcast outside the “safe harbor” period, they will analyze the material for patent offensiveness. Recently the FCC has stated that tapes and transcripts may not be required.
If staff determines that the material was not indecent, the complaint will be denied. The staff may issue a Notice of Inquiry (“NOI”) if they need more information about the circumstances surrounding the broadcast in question. The staff may also issue a Notice of Apparent Liability (“NAL”), to which the licensee can respond, or refer the case to the full Commission in cases that may raise new policy issues. For additional examples of indecency rulings, visit the FCC’s Enforcement Bureau website, http://www.fcc.gov/eb/broadcast/obscind.html.
Although the Communications Act prohibits the broadcast of “profane,” as well as “obscene” and “indecent” language, the FCC has not treated profanity as a separate category of speech. Complaints concerning profanity have been analyzed under the indecency standard. LBJS Broadcasting Company, L.P., 13 FCC Rcd 20956 (MMB 1998).
All programmers and on-air participants will use caution with respect to on-air speech and their choice of aired materials. Both editing and forethought may be necessary, where appropriate, to avoid jeopardizing KFCFs license. Obscene words are never allowed on air. The use of sensitive language is restricted to programming in which it constitutes part of an artistic, literary, or documentary device, that is, it is consistent with the aims and context of the subject matter.