F.C.C. 71-;205 Reoords, Review of by Broadoast Lioensees 409 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION . WASHINGTON, D.C. 20,554 InRe '} LICENSE RESPONSIBIIIT:r To REVIEW RECORDS . BEFORE THEm BROADCAST . . . MARCH 5, 1971. The Commission, by Conunissioners Burch (Chairman), Robert E. Lee, Johnson, H. Rex Lee, Wells and Houser, with Commissioner .Johnson dissenting and issuing a statement, Commissioners Robert E. Lee, H. Rex Lee and Houser issuing statements, and Commissioner Bartley abstaining from voting, issued the following PUBLIC NOTICE. .' .... LICENSEE RESPONSillIIITY To REVIEW RECORDS BEFORE THEm BROADCAST A number of complaints received by the Commission concerning the lyrics of records played on broadcasting stations relate to a sub ject of current and pressing concern: the use of language tending to promote or glorify the use of illegal drugs as marijuana, L8D, "'speed", etc. This Notice points up the licensee's long-established responsibilities in this area. 'Whether a particular record depicts the dangers of drug abuse, or, to the contrary, promotes such illegal drug usage is a question for the judgment of the lieensee.~hethrust of this Notice is simply that the licensee must make that Judgment and cannot properly follow a policy of playing such records without someone in a responsible posi tion (i.e., a management level executive at the station) knowing the content of the lyries. Such a pattern of operation is clearly a violation {)f the basic principle of the licensee's responsibility for, and duty to {)xercise adequate control'over, the broadcast material presented over his station. It raises serious qup,shons as to whether continued opera tion of the station is in the public interest, just as in the case of .a failure to exercise adequate control over foreign-language programs.' In short, we expect broadcast licensees to ascertam, before broad cast, the words or lyrics of recorded musical or spoken selections played on their stations. Just as in the case of the foreign-language broadcasts, this may also entail reasonable efforts to ascertain the meaning of words or phrases used in the'lyrics. While this duty may he delegated by licensees to responsible employees, the licensee,remains fully responsible for its fulfillment. . . 1 See Public Notice concerning ForeignI~anguagePrograms adopted March 22, 1967, FCC 67-368. 9 R.R. 2d 1901. 28 F.e.e. 2d 410 Federal Oommunwations Oommission Reports Thus, here as in so many other areas, it is a question of responsible, good faith action by the public trustee to whom the frequency has been licensed. No more, but certainlyno less, is called for. Action by the Commission February 24, 1971. Commissioners Burch (Chairman), \Vells and Robert E. Lee ,,.ith Commissioner Lee issuing a statement, Commissioners H. Rex Lee and Houser concurring and issuing statements, Commissioner J olmson dissenting and issumg a statement, and Commissioner Bartley abstaining from voting. STATE~IENTOF COl\Il\IISSIONER ROBER'.r E. LEE I sincerely hope that the action of the Commission today in releas ing a "Public Notice" with respect to Licensee Responsibility to Re dew Records Before Their BroadcaJ3t will discourage, if not eliminate th~playing of records which tBlld to promote and/or glorify the use of Illegal drugs. .\Ve are all aware of the deep conCBrn in Our local communities with respect to the use of illegal drugs particularly among the younger seg ment of our population. Public officials, at all levels of government, as well as all interested citizens are attempting to cope with this problem. Itis in this context that I expect the Broadcast Industry to meet its responsibilities of reviewing records before they are played. Ob viously, if such records promotB the use of illegal ch'ngs, the licensee will exercise appropriate judgment in determining ,,.hether the broad casting of such records is inthe public interest. CONCURRING STATEMEXTOF CmDIISSIOXER H. REX LEE \Vhile the title of the notice seemingly applies to the licensee's responsibility to review all records before they are broadcast, the notice itself is rlirected solely at records which allegedly use "language tBnding to promote or glorify the use of illegal drugs...." Although I mn coneurring, I ,,.ould have preferred it if the Com mission had not decided to restriet todav's notice to so-called "drug lyrics." The Commission may appear to' many young people as not being so concerned with other pressing broadcasting problem areas. And to many of these young people (and not just to that segment who use illegfll drugs) the Commission ma, appear as "an ominous government agencv" merely out to clamp down on their music. C A preferable approach would have heen to repeat, with an addi tional reference todnl~abui'e of all k-inds, our 1960 Program PolWy Statement wherein we stated: Broadcasting licensees lllust assume reRponsibility for all matf'rial which is broadcast throngh their facilities. This includes all progra-ms and ad17crUsinU material which'thcy present to the public. ... This duty i" personal to the licensee ,and may not be delegated. He is obligated to bring his positivE' respon sibility affirmatively to 'bear .upon all who have a hand in providing broadcast material for transmission through his facilities so as to assnre the discharge of his duty to provide acceptable program schedule consonant with ope-taring in the public interest in his commlmity.l (Emphasis added.) 1 Report and Statement oj Policy re: Oommission En Bane Programming Inquirv3 FCC 60-970.20 R.R J901. 1912-1913 (July 27,1960). 28 F.e.e. 2d Records, Review of by Broadcast Licensees 411 Because of the Commission's expressed concern with the drug pl"?blem, I wouldho~ethat we~uldinitiate action with other appro pI'late Federal agencIes to reqUIre a reassessmeut by pharmaceutical manufacturers, advertisers, and the media., looking toward the reform of advertising practices in the non-prescription drug industry.Ad~ vertising Age expressed its concern with the increased use of drugs- both the legal and illegal types-wheu it stated in an editorial: With an estimated $289,000,000 being spent annually on TV advertisiug of medicines, this serious question is heing raised: Is the flood of advertising for such medicines so pervasive that it is convincing viewers that there is a mediC"a} panacea for any and all of their problems, medical and otherwise? Are we being so consistently bombarded with pills for this and pills for that and pills for the other thing that we have developed a sort of Pavlovian reaction,which makes us re-aeh for a pill everytime we are faced with an anxious moment, be it of physical or psychic origin? a Drug abuse Vi a serious problem in theUnit~dStates. It is found in every sector of the population, not merely among the young who listen to hard rock music. . I believe the broadcasting industry has made a good start in helping to discourage illegal drug abuse. Many local radio and teJeI"ision sta tions and the four networks have broadcast documentaries and specials, carried spot announcements, helped to raise funds for local drug abuse clinics and information centers, and have helped to establish "tie-lines" and "switchboards" where all people can call for free medical and psychological help and guidance. These activities represent "communi cating" in the best sense of the word. . My concurrence in this notice, therefore, should not be regarded as a reflection on the good start that I think most broadcasters have made in dealing with this problem. They must continue with even more det~rminationand support from everyone. . CONCURRINGSTATE~IENTOF COMMISSIONER THOMAS HOUSER I join in the sentiments expressed in the concurring statement of Commissioner Robert Lee and concur in the action taken by the majority. I take this opportunity, however, to emphasize that the positive action taken by the Commission with regard to popular song lyrics is only a portion of a much larger problem which I intend to bring to the Commission's attention for future deliberation. It is my fear, and the concern of many prominent Americans, that we are rapidly bee coming a "pill oriented society". IVe are constantly bombarded with advertIsements which would have us believe that life's problems can be solved by swallowing a pill. lYe are told by the "pill pushers" that we can "feel brighter" or be "give(n) a Iift"-that our tensions will be relieved and that there is a pill for virtually every mood. Our children are told that pills are playful "Pals". Indeed on(l leading advertising executive advocates using "the idiom of the 18 year old (to) wrap'; a "hard" drug sell in "a velvet glove". To the extent that broadcast media contributes, wittingly or un wittingly, to the drug problem, the Commission is charged with the responsibility of insuring that the public interest will prevail through our recognitIOn of the problem and the consideration of solutions, oJ AdvertisingA.ge~May 11, 1970, p. 24. '28 F.e.C. 2d 412 Federal Oommunications Oommission Reports DISSENTING OPINION OF COMMISSIONER N ICHOLASJOHNSON This public notice is an unsuccessfully-disguised effort by the Fed ~ralCommunications Commission to censor song lyrics that the majority disapproves of; it is an attempt by a group of establishmen tarians to determine what youth can say and hear; it is an unconsti tutional action by a Federal agency aimed clearly at controlling the nform to our overriding duty to insul.ate aU individua18 from the "chilling effect" upon ea:ercise Of First Amendment freedoms generated by vagneness. overbreadth and unbridled discretion to limit their exercise. Walkerv. Oity of Birmingham, 388 U.S. 307, 344-45 (1967) (dissent ingopinion) (emphasis added). This is a classic case of Federala~ency action which is bound to have a "chilling effect" on the exerCIse of First Amendment rights. The Commission's action today will have a chilling effect on the free spirit. of our songwriters, because of the caution and timidity which today's action will produce among licensees. Itwill.have a simi lar effect on the record industry, because of the relationship between the radio play of a record and its economic success. And where, after all, do we getautho~itytoregul~tethatin~ustryby p.utting pressure on the move to reqUIre the prrntmg of lyrICS on dust Jackets! We are more dependent upon the creative people in our society than we have ever fully comprehended. "Legalize Freedom" says the latest bumper sticker. Full !iuman flowering requires the 0p'portunity to know, and express creativity, one's most honest-as-possIble self. Gov ernments are instituted among men-a