FMC Letter to Senate Stating
Concerns about
S. 193, the Broadcast Decency Enforcement Act
United States Senate
Washington, DC 20510
March 10, 2005
Dear Senator:
The Future of Music Coalition is a national nonprofit organization that
has spent the past five years identifying, examining, interpreting and
translating the challenging issues at the intersection of music, law,
technology and policy.
FMC is very concerned about S.
193, the Broadcast Decency Enforcement Act of 2005. For
years, FMC has documented the negative effects of increased consolidation
of radio including increased homogeneity in programming and artists’ limited
access to the airwaves. In this environment, artists have no
influence or control over what is broadcast. It is therefore critical
to reiterate that the responsibility for broadcast content lies with
licensees and not with artists. The House bill failed to make
this distinction. The resulting notion that an artist will be held
liable when they have no control over what is broadcast is not only
illogical, but also unjust. The Senate must not follow this course
and should not add performer fines to S. 193.
FMC is also extremely concerned
that the Federal Communications Commission lacks the resources and perspective
necessary to fully assess in each instance what may or may not be considered
indecent according to a specific local community’s standards. Further,
the language of S. 193 does not distinguish between political/ social
commentary and industry attempts to generate revenue via risqué programming.
This
is especially pertinent in the realm of non-commercial radio. Non-commercial
radio is often locally operated and focused on education, information
and community building. This stands in stark contrast to commercial
radio, which operates to amass the largest possible audience in a specific
demographic in order to maximize advertising revenue. The ability
of non-commercial radio to provide insightful and thought-provoking programming
is vastly impeded when licensees are constantly worried about being fined
for broadcasting potentially controversial art, political discourse or
social commentary.
The case of KBOO is but one example of how the current regulatory structure
can place a disproportionate economic burden on non-commercial stations. In
May of 2001, Portland non-commercial station KBOO was fined $7,000 for
playing Sarah Jones’ “Your Revolution”, a specific
response to negative female stereotypes found in several chart-topping
hip hop songs.[1] KBOO incurred more
than $25,000 in legal fees just defending itself against the FCC’s
ruling that the song’s lyrics contained ‘unmistakably patently
offensive sexual references’,[2] arguing
that the song was not indecent but a context-laden cultural critique.
The increased fines proposed in the Broadcast Decency Enforcement Act
would be a slap on the wrist to major media corporations but crippling
to non-commercial broadcasters. It is our sincere concern that
such inequity will have a chilling effect on the ability of non-commercial
stations to contribute to our society’s cultural discourse.
In conclusion,
it is critical to point out that indecency rulings have focused disproportionately
on particular genres of music and specific cultural communities. Since the FCC issued its Indecency Policy
Statement in 2001, the examples of indecency enforcement involving music
(other than parodies) in the public record involve urban, rap and hip-hop
songs, most notably Sarah Jones and Eminem’s “The Real Slim
Shady”.
In his dissent in the landmark Pacifica case,
Justice Brennan was prescient on this issue, criticizing the plurality’s
"depressing inability to appreciate that in our land of cultural pluralism,
there are many who think, act, and talk differently from the Members
of this Court, and who do not share their fragile sensibilities."[3] In
1970, FCC Commissioner Johnson further expanded, in a dissent, "What
the Commission decides, after all, is that the swear words of the lily-white
middle class may be broadcast, but that those of the young, the poor,
or the blacks may not."
We believe there are
serious unintended consequences to this legislation. Individual performers
who have no control over the broadcast airwaves may be fined for programming
actions out of their control. Non-commercial stations may self-censor
and not air important political or controversial topics for fear of fines.
Entire genres of music may be boycotted for fear of being labeled indecent.
For
these reasons, FMC urges you to strongly consider the potential impact
of the Broadcast Decency Enforcement Act on artists and non-commercial
speech. Thank you for your time and consideration and please let
us know if you have any questions or need further information.
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Act March
10, 2005
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MB Docket 04-233
January
3, 2005 PDF of document
