Obscenity Issue Still Unresolved

The Federal Communications Commission’s most far-reaching action in 1987 promises to be its most unresolved issue in 1988.

On April 16, the FCC announced that three FM radio stations--KPFK in Los Angeles, KCSB in Santa Barbara and WYSP in Philadelphia--had violated broadcast decency standards.

The FCC asked the Justice Department to prosecute KPFK’s owners--the nonprofit Pacifica Foundation and its officers--for obscenity. The Justice Department announced in July that it would not prosecute the station over its broadcast of the play “Jerker,” which featured four-letter words and explicit sexual dialogue. But Pacifica’s anxieties didn’t disappear. According to foundation executive director David Salniker, concern over the indecency issue will affect even more broadcasters in 1988.

“It’s not paranoid that our case was referred to the Justice Department,” Salniker said. “It’s not paranoid that we’ve been brought before the FCC in the past for airing things like (poet Lawrence) Ferlinghetti and (Allen) Ginsberg. That we’ve had to defend the right to air Edward Albee back in the ‘60s.

“We don’t make these things up,” he continued. “We’ve been dragged before every committee in government. We have never once chosen one of these fights.”

Commercial broadcasters and even many public broadcasters have frequently scorned the admittedly left-leaning Pacifica Foundation in the past for its fear that the Reagan Administration, religious fundamentalists and even Richard Nixon might be attempting to silence the five radio stations it operates in Houston, New York, San Francisco and Washington, as well as in Los Angeles.

The Rev. Larry Poland, a fundamentalist minister who brought the original complaint to the FCC about KPFK’s “Jerker” broadcast, has said he isn’t interested in silencing Pacifica. Poland and media watchdogs, such as New York’s Morality in Media and the Tupelo, Miss.-based National Federation for Decency, say that their sole concern is in keeping the public airwaves free of obscenity and indecency.

They emphasize the word public.

“They (the airwaves) don’t belong to any one person,” Morality in Media’s general counsel Paul McGeady told The Times last summer. “The airwaves belong to the public.”

Indecency, critics insist, is not political. Salniker disagrees.

“The litany of what we’ve been investigated for is in FBI files 300 pages long dating back 20 years,” said Pacifica’s Salniker. “They deal mostly not with obscenity, but with giving air time to advocates for civil rights, gay rights and black power advocates. It’s just that politics and unpopular ideas are what we’re being harassed and investigated for, not indecency.”

Communications law specialists from the broadcast networks to the National Assn. of Broadcasters (NAB) may not agree with Salniker that his organization is being singled out for persecution, but they are no longer scoffing at Pacifica’s concerns either. NAB general counsel Jeff Baumann called the FCC indecency guidelines “vague.” Steve Lerman, attorney for Infinity Broadcasting, which owns the Philadelphia station cited in the FCC complaint, chastised the commission for giving no specifics at all in defining indecency. Lerman has filed suit against the FCC on behalf of Infinity, seeking a clearer definition of indecency.

The American Civil Liberties Union assigned First Amendment specialist Carol Sobel to pursue the Pacifica case in court in 1988. To date, the FCC has declined to elaborate on its new guidelines.

Harking back to the existing language of federal obscenity law and court precedents, FCC general counsel Diane Killory warned broadcasters in April against using patently offensive references to sexual or excretory functions over the airwaves. The FCC has reserved the right to decide on a case-by-case basis what it deems “patently offensive.”

The April order preempted obscenity guidelines that had been observed by broadcasters for a decade. The old rules, defined by the Supreme Court in the so-called “seven dirty words” case, was based on the 1973 airing of a George Carlin comedy routine over Pacifica’s New York station, WBAI-FM. The Carlin decision banned the seven words until 10 p.m., when it was assumed that children were no longer in the listening or viewing audience.

More than a dozen broadcast organizations--including the NAB, NBC, ABC, CBS and National Public Radio--filed petitions with the FCC in May seeking a clearer definition of indecency. Six months later, Killory announced that the commission’s only clarification would be pushing the curfew on adult-oriented programming to midnight.

“My guess is we spent over a quarter of a million dollars fighting the Carlin case,” Salniker said.

So far, Pacifica has spent $50,000 fighting the FCC and the Justice Department over the current indecency flap, according to Salniker. Even with the free services of the ACLU, those costs will probably climb to at least $120,000 in 1988, he estimated.

Infinity Broadcasting, which owns KROQ-FM in Los Angeles as well as WYSP and nine other stations, will probably incur similar legal fees fighting the FCC in 1988.

Though the FCC indecency guidelines are supposed to apply to both television and radio, it is inevitably radio that is cited, Salniker said. “The interesting thing is that the FCC never goes after television and to this day you can hear and see movies with all the obscene and profane language that the FCC is supposedly complaining about. And they are on at eight o’clock at night on independent stations and cable across the country.”

From current FCC Chairman Dennis Patrick down through the FCC ranks, government officials have repeatedly denied that they only go after radio. They contend that the crackdown on indecency is industrywide and overdue.

“The commission has no interest in chilling protected speech and broadcasters do have a legitimate concern about and interest in as much certainty as can be provided,” Patrick told The Times last summer.

But the commission has taken no action against television, Salniker pointed out.

Indecency is not an issue that should be fought by Pacifica, the FCC or Morality in Media, according to Salniker.

“There’s not a radio dial in this country that can’t be turned within about a quarter of a second,” he said. “I think if somebody’s offended they really ought to learn to turn the dial. I understand there are people in this country who do not like to listen to profanity and I think by and large they should learn to turn the dial, just like they walk away from conversations they don’t like.”