So, You Want to File a Broadcast Indecency Complaint?

The most effective action against indecency remains the formal complaint. “The most important piece of information I can give you is to include your local congressman in the process, every step of the way.” — citizen activist David Smith

New rules proposed by the Federal Communications Commission (FCC) would make filing a broadcast indecency complaint as easy as picking up the telephone or sending an email. That system, however, handled by the Consumer and Government Affairs Bureau, does not carry as much weight as the existing process. The most effective action against indecency remains the formal complaint. Unlike other areas under the FCC’s charge, such as complaints over telephone bills or poor cable reception, there is no official form for a formal indecency complaint.

“One of the few fortunate things about dealing with the FCC is that they do not require strict adherence to form in the complaints, and they even say that in some of their decisions,” said veteran FCC complaint filer Judge Tom North of Michigan. “So a legibly-typed letter is sufficient to get a complaint in as long as it contains all the information.”

What Happens Next?

Once received, the letter will be reviewed by FCC staff to determine if you have provided enough information to support your claim of an obscenity or indecency violation. If you have not, the FCC will dismiss your complaint.

If you have provided adequate information and context, the FCC will then begin an investigation. The first step of that investigation is sending a letter of inquiry to the broadcast station. That action gives the broadcaster a chance to either dispute your facts or to argue that the broadcast does not violate broadcast decency standards.

The FCC will then review both sides and issue an opinion. If the FCC determines that a violation has occurred, it will issue a Notice of Apparent Liability (NAL) for Forfeiture against the station. In other words, it will impose a fine.

Should the review determine that a violation of broadcast decency standards did not occur, your complaint will be denied.

In any case, the FCC’s Enforcement Bureau should respond to you with a letter explaining their decision.

Gather the Necessary Information

What is “all of the information” you ask? Just a simple list:

• The call letters of the radio or television station airing the program in your area.

• The city in which that station is licensed.

• The name of the program on which the offensive material was heard (these are often syndicated programs like The Howard Stern Show or The Lex and Terry Show on radio or Boston Public or The Victoria’s Secret Fashion Show on television.)

• The day and exact time the offensive material aired.

• And the most important ingredient in official indecency complaints: a detailed description of the offending material.

With regard to the last item — the details of the offending material — it is vital that the FCC be given as much information as possible about what was actually said, and the context in which it occurred. According to the FCC’s Consumer and Governmental Affairs Bureau, with respect to indecency investigations, “context is key.”

“The Commission staff must have sufficient information regarding what was actually said during the alleged broadcast, the meaning of what was said, and the context in which it was stated,” reads the FCC instructions on filing an indecency complaint. While a tape of the broadcast is not required by the FCC, at least a partial detailed transcript is. Therefore, recording the broadcast is recommended, as it makes it easier to provide the context.

But even if you are caught off guard by a program, transcripts are often available from many pro-family organizations. The Media Research Center and its affiliate, The Parents Television Council, regularly monitor television broadcasts, and can provide the context you need. Likewise, the American Decency Association and the American Family Association regularly keep tabs on The Howard Stern Show, while Citizens for Community Values monitors Mancow’s Morning Madhouse.

Keep a copy of the tape or full transcript so you can refer to it throughout the complaint process. The documentation you provide the FCC as part of your complaint becomes a part of federal records and is not returned. A copy in reserve could come in handy if the FCC dismisses your complaint — but we’ll discuss that later.

What Qualifies as Indecent?

Both indecent and obscene programming are regulated by the FCC. Obscene material is not protected by the First Amendment and cannot be broadcast at any time. Obscenity can be determined by the three-prong test set forth by the U.S. Supreme Court, known as the Miller test. For material to qualify as obscene:

An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest; the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and the material, taken as a whole, must lack serious literary, artistic, political, or scientific value.

Indecency, on the other hand, is defined more broadly, and is restricted to hours when children would likely not be a part of the audience, specifically 10 p.m. to 6 a.m.

The FCC defines indecency as:

Language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory references that do not rise to the level of obscenity. As such, the courts have held that indecent material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted in order to avoid its broadcast during times of the day when there is a reasonable risk that children may be in the audience.

The Commission has established an Indecency Policy Statement, setting forth a lesser three-prong test for indecency. Those three factors are:

“The language or depiction, in context, depicts or describes sexual or excretory organs or activities.” The language need not be direct. The Commission has repeatedly held that “innuendo may be patently offensive within the meaning of our indecency definition if it is understandable and clearly capable of a specific sexual or excretory meaning, which, in context, is inescapable.”

The broadcast must be “patently offensive as measured by contemporary community standards for the broadcast medium.” — While fines are levied against local broadcasters, the community standard used by the FCC is a broad, national one.

“The material appears to pander, or is used to titillate or shock.” — News broadcasts and medical shows generally do not meet this third criteria.

Drafting Your Complaint Letter

Compile this information into a letter, addressed to David H. Solomon, Chief, Enforcement Bureau. Mail your complaint to:

Federal Communications Commission

Enforcement Bureau, Investigations and Hearings Division

445 12th Street, SW, Room 3-B443

Washington, DC 20554

Citizens for Community Values (CCV) has a sample letter posted on their Web site, only be sure to mail your letter to the address above, as the FCC has just completed a massive reorganization, shifting many duties to different offices.

Tips from an Indecency Complaint Pro

David E. Smith of Chicago has made a name for himself at Emmis Communications, but not for what you might think. Smith is best known for lodging many successful indecency complaints against the Emmis syndicated show Mancow’s Morning Madhouse.

“Begin by stating outright that you are filing an official complaint, and expect a timely response,” Smith told C&F Report. Without this, FCC staff could very likely misfile your letter and never respond.

“The most important piece of information I can give you is to include your local congressman in the process, every step of the way. Talk to the congressional staff person who handles FCC issues,” Smith said. “Ask them to help you get a response from the FCC. Copy him or her with each piece of correspondence you get and send.

“Don’t ask them to take a side in your complaint; all you want is their help as your federal representative to get the FCC to acknowledge your complaint, and to respond,” Smith added. “However, raising the congressman’s awareness of what is being broadcast, and the FCC’s lack of enforcement, doesn’t hurt.”

Smith said you can even send copies of your complaint to members of the House and Senate Commerce Committees, which oversee the FCC.

Time for Appeals

If your complaint is upheld and an NAL is issued against the station, the broadcaster will have 30 days to file an appeal. A good example of this is the FCC’s recent reversal of a fine against Citadel Broadcasting Company’s KKMG in Pueblo, Colorado &30151; better known as the “Real Slim Shady”/Eminem song case.

Likewise, if your complaint is dismissed or denied, you have appeal options as well.

While the FCC does not highlight this process, it has garnered several fines against radio shock jocks.

“As far as appeals, the process in the regulations is more formal,” said Judge North. “The process depends on the nature of the issue being raised.”

If your complaint was dismissed due to lack of information, you have thirty (30) days to re-file with additional information. If your complaint is investigated and then denied, you also can appeal.

“Don’t fret,” says indecency activist David Smith. “If, after you’ve considered their response, you still believe that the broadcast clearly violated FCC guidelines, you can write a letter (within 30 days) appealing their decision.”

That letter can take the form of either a petition for reconsideration of the staff action or an appeal to the full commission. If you choose the latter, your case will be reviewed by the FCC Commissioners themselves rather than Enforcement Bureau staff.

“My appeals have been very simple,” said Smith. “I just ask them to review my complaints again, clarifying why I thought they violated FCC standards.”

Judge North filed an indecency complaint against a local television station for the showing of full frontal nudity in airing an unedited version of Schindler’s List in February 1997.

“My advice in the dismissal of a complaint is to appeal it and to follow the regulations to the ‘t.’ That way, your appeal won’t be dismissed on procedural grounds,” said North. I made a motion for reconsideration in the Schindler’s List matter, which got it to the full commission. However, they ruled against me.”

One last bit of advice that Smith says has been key to his persistence: “Pray as if all depended on God.”

Guard Your Expectations

While Smith has enjoyed some success in bringing indecency complaints before the FCC, he put in a lot of work to achieve them. Smith filed his first two complaints in June 1997 — both were dismissed by the FCC. However, efforts targeted at advertisers of Mancow’s Morning Madhouse caused a revenue drop-off.

Smith began a second round of FCC indecency complaints in November 1999. Within a span of six months he had filed a total of 30 complaints. All were initially dismissed by the FCC. Smith appealed 11 of those.

Upon appeal, the FCC launched an investigation into five of the 11 complaints. Two of those investigations resulted in fines issued on January 7, 2002.

Most recently, Smith filed nine indecency complaints, of which the FCC investigated seven. On March 20, 2002 the FCC issued fines for three of those seven complaints.

Judge North has encountered roadblocks over other media complaints.

“I have seen firsthand time and time again how they absolutely bend over backwards to find a way to dismiss every TV indecency complaint, and they take a year or two to do it,” North said.

“I have actually seen them interpret court decisions in a way that favors dismissal of the complaint, and then on another complaint, misinterpret the same decision 180 degrees in the other direction to ‘justify’ an order to dismiss,” he added.

“When the full commission ruled against me in the Schindler’s List matter, there was a limited time to appeal it to the court — only about 20 days. But the FCC conveniently did not mail me their decision until after the appeal period expired!” North said.

Others have filed official complaints with the FCC, following all of the correct procedures, and have never even received a response.

On March 21, 2002, the FCC dismissed 20 complaints about ABC’s Victoria’s Secret Fashion Show. In response, Brent Bozell, president of the Parent’s Television Council, said, “What will it take for the FCC to wake up and do its job? According to Morality in Media, the FCC has not fined a television station in 20 years [as of the original writing of this article in 2002]. That’s a pretty telling indictment of just how seriously the FCC takes its responsibility to the American public.”

Bozell stressed that the main reason America is swamped with broadcast indecency is not the failure of the public to complain, but the FCC’s failure to investigate and act on those complaints.

Smith said the public shouldn’t be deterred by this uphill battle.

“Patience and persistence is the key,” he said. “Remember, nothing is moved unless it is pushed.” If those filing complaints are willing to “push” the issue with constant appeals and oversight of federal officials, progress can be made.

In Closing

Once you file a complaint you should monitor the FCC’s “Daily Digest,” available on the FCC’s Web site, or via e-mail, for their action. The agency’s action, however, may take a year or more.

Given that time lapse, it may be helpful to keep a pro-family organization apprised of your complaint. Groups like Concerned Women for American and the Parents Television Council monitor the FCC as a part of their regular activities, and can inform you when an action is posted in your case.

These groups can bring your complaint to the attention of members of Congress, as well as drawing media and public attention to the issue.

If you plan to monitor a shock-jock or a regularly offensive program, we recommend that you recruit some help. Going it alone in the battle against the filth on today’s airwaves can be emotionally and spiritually draining.

We suggest you reach out to like-minded people in your church. You can even reach out to members of other congregations. Divide up the chores so that no one person gets more than they can handle. And don’t forget to reach out to everyone! Retirees may be able to tape the program without listening to it. Young, godly singles may be in a position to monitor the show due to an unfortunate roommate or work situation — for instance, overhearing it in a military barracks or the local auto repair shop.

Don’t forget to note the local advertisers of the offensive program. While you are waiting for FCC action, take the time to confront them with the program they are supporting. You could see the program removed from your local station if advertising revenue drops off.

We thank you for choosing to add this resource to your activism arsenal. If you decide to take this advice and file an indecency complaint with the FCC, we would love to hear from you.

We would also like to thank Kathy Valente, Concerned Women for America’s acting Illinois State Director as well as Phil Burress and David Smith with Citizens for Community Values for sharing their knowledge and efforts with us on indecency complaints, and blazing a trail the rest of us can follow.

(This article courtesy of Concerned Women for America.)