Heool'ds, Hev-iew of by Broadoast Licensees 377 F.C.C.71-428 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of . } LICENSEE RESPONSffiILITY To REVIEW REc ORDS BEFORE THEIR BROADCAST (F.C.C. 71 205) . MEMORANDIT1\f OPINION AND ORDER (Adopted April 16, 1971; Released April 16, 1971) By THE COMMISSION: COMMISSIONERS BARTLEY. H. REx LEE AND 'YELLS CONCURRING AND ISSUING'STATE],!E;TS; C03fMISSIONER JOHNSON DISSENTING A"" ISSUING A STATEMENT (See F.C.C. 71 803 for Commissioner Johnson's statement). 1. TheCo~{ssionhas before it petitions for reconsideration of its Public Notice of March 5, 1971, FCC 71-205, entitled "Licensee Responsibility to Review Records Before Their Broadcast", filed by the Federal Communications Bar Association; Pierson, Ball & Dowd on behalf of Dick Broadcasting, Inc., Lee Enterprises, Inc., RICO General, Inc., and Time-Life Broadcast, Inc.;· the Recording In dustry A3sociationof .4..merica (RIAA),' and Pacifica Foundation! The latter also submitted a petition for stay. In view of this latter request and the considerations in the next paragraph, we agree that there is a need for expedited action, and therefore go directly to the merits, without summarizing the petition. 2. The Commission's public notice of March 5 .tated, in most perti nent part: 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 licensee. Tbe thrugt of this Notice issiIIl~lYthat the licensee must make that judgment and cannot properly follow a·- policy of playing such records without someone in a responsible position (i.e., a management level executive at the station) knowing the content ofthe lyrics. The Notice thus simply reflected the well esta.blished concept of licen see responsibility. However, as the petitions point up, it was widely reported in the press as a directive by the Commission not to play certain kinds of records. (E.G., "Stations Told to Halt Drug-Oriented Music", Associated Press, The Washington Evening Star, March 6, 1971; "FCC BarsBroadcastin~of Drug-Linked Lyrics", United Press International, The Washmgton Post, March 7, 1971). Since the purpose of a public notice is to inform the industry and public of a Commission policy, it follows that where a notice is so erroneously 1 RIAA's Motion for Acceptance of Pleading in Excess of Page Llroltatlon IS GRANTED. 2 We also take note that a Petition fOr RecoW31deration was filed late by the Stern Com· munity Law FIrm' and also a Memorandum of the Authors League ot AmerIca,.· Ine. In support 0:1' RIAA's Petition for Reconsideration. These materials were received during our determination on this Memorandum Opinion and Order. 31 F.e.e. 2d 378 Federal Commu,nication.9 Commission Reports depicted, we should appropriately call attention to the error. vVe do So in this Memorandum Opinion and Order. While it adheres fully to the above noted established policy of licensee responsibility, this opmion treats the matter in greater detail and thuB constitutes the Commission's definitive statement in thiB respect. 3. As the Notice stated at the outset, the Commission has received a number of complaints concerning the broadcast of records with lyrics tending to promote or glorify the use of illegal drugs. The Commission's own experience indicated that there was some tendency by broadcasters to be indifferent to the matter of licensee responsi bilitv in this area because all that iB involved is the playing of a record. The:Commission therefore believed it appropriate to point up that the licensee's responsibility for the material broadcast over his facili ties extends to records. Clearly, in a time when there is an epidemic of 'Illegal drug use-when thousands of young lives are being de stroyed by use of drugs like heroin, methedrine ("speed"), cocaine the licensee should not be indifferent to the question of whether his facilities are being used to promote the illegal use of harmful drugs. 4. But nothing in the prior Notice stated, diredly or indirectly, that a licensee is baITed from presenting a particular type of record. On the contrary, the Notice made clear that selection of records was a matte.r for the licensee's judgment. Some records point up drug dan gers, some may glorify drugs, some may simply reflect the drug scene as it is toda.y. Here, as in SO many programming areas, it is often a most difficult judgment whether a record promotes dnrg usage. Licensees could reasonably and understandably reach differing judg ments as tD a particular record. vVe stress that such an evaluation process is one solely for the licensee. The Commission cannot properly make or review such individual licensee judgments. Indeed, at renewal time our function is solely limited to a review of whether a licensee's programming efforts, on an overall basis, have been in the public interest. Beport and Statement of Policy Be: Oomm,':'8ion En Bane Programm.ing Tnguiry. 20 Pike & Fischer, Radio Regulation 1901 (1960) : I'll re Pacifit:a Foundation. 36 FCC 147, 149 (1964). 5. Any attempt to review or eondemn a licensee's judgment to playa particular record is, as indicate.d, beyond the scope of federal regu latory authority with perhaps the exception of the so-called "clear and present danger" te.st. In this connection, in A nti-Def(J;l1ULtion Leag'UfJ of B'Nai B'rith again.st Radio SW;f;ion KTYM, 4 FCC 2d 190, 191, () FCC 2d 385 (1967),' the Commission stated: It is the judgment of the Commission, as it has been the judgment of those who drafted our Constitution and of the overwhelming majority of our legislators: and judges over the years, that the public interest is best served by permitting the expression of any views that do not involve "a clear and present danger of serious substantive evil that rises far above public convenience, annoyance or UD.l"e'St!'· Term4niello v. Chicago, 337 U.S. I, 4 (194-9). 3 A.jJ'd, Anti-Defamation League- v. FCC, 4-03 F. 2d 169 (C.A.D.C., 1968), cerl. de;niea J 394 U.S. 930 (1969). . t Similarly, in Brandenburg v. Ohio, 395 U.S, 444 (1969), the Supreme Court struck down the conviction of a Ku Klux Klan leader for advocating nfrl",.nee at a KKK rally, stating (at p. 447) : These later (Supreme Court] decisions have fashioned the principle that the con stitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the nse of force or of law violation except where such advocacy is direded to inciting or produeing imminent lawless action and is likely to incite or produce such action. 31 F.C.C. 2d Rec01'dB, Review of by Broadcast Licensees 379 6. The'luesti~)llof formulating a definitive concrete standard is not presented~.thIs m!1tter. For, we hold, based on our experience and th~complamts receIved, that. whether to playa particular record in ~lllsarea does~otraIse an Issue as to which the Government may mtervene. That IS the reason why the Commission has not referred a single complaint concerning the playing of records with drug lyrics to licensees for their comments; 5 instead, we have informed the com plainants of the provisions of Section 326. There could be extraordi nary, lmforeseen circumstances where the stringent requirements Qf the "clear and present danger" test might be met in this field. Noone can Way write a constitutional blueprint for every possible future happenstance and changed circumstance. It is sufficient to hold that we do not now perceive such a problem, based upon our present experience, and that our prIOr Notice and this Opinion are not premised upon it. 7. The Commission did make clear in the Notice that the broad cast.er could jeopardize his license by failing to exercise licensee re sponsibility in this area. Exc-ept asto broadcasts by political candidates, the licensee is responsible for the material broadcast over his facilities. That obviously calls for a reasonable degree and exercise of responsi bility. It is nonsense to assert that the licensee can be indifferent to this responsibility. If a person approaches a station to buy time to attack his neighbor, or simply to let loose a torrent of vile langua&e, he will not be presented. vvnile these are egregious examples of the need for licensee respousibility, the plain fact is that the licensee is not a common carrier-that the Act makes him a public trustee who is called upon to make thousands of programming judgments over his license t.erm. The thrust of the Notice is simply that this concept of lic.ensee responsibility extends to the question of records which may promote or glorify the use of illegal drugs.6 A licensee should know whether his facilrties are being used to present again and again a record which urges youth to take heroin or cocaine--that itis a wonder ful, joyous experience. This example is egregious, but it serves to point up the obvious bedrock policy of the responsible public trustee. The point is that snch records are not withdrawn from the area of licensee responsibility. 8. Nor are the mechanics of licensee responsibility difficult or onerous. Again, it may be desirable to proceed by analogy. Licensees instruct their employees that before presenting taped material con taining questionable language (i.e., of an indecent or obscene nature), the matter should be brought to the att;." We wish to make it clear that such list does not represent any ofiiciaIor even unofficial pronouncement by the Commission, and will not be circulated, utilized or applIed by us in any manner whatsoever. The Commission has made no judgment on any song and most emphatically has not compiled or issued any list of songs which it believes should not be broadcast. Nor does it intend to do so in the future. a We thus fully agree with the FCBA position that the Commission should make clear ". _ . it was announcing a policy dealing solely 'with licensee responsIbility to be familiar with what the licensee is broadcasting and that it did not intend to pass judgment on the desirability of broadcasting any song ..." (p. 8, FCBA petition). 31 F.C.C. 2d 380 Federrilfrommunioations Oomini:3Bion Reports Pacifica Foundation, 36 FCC 147, 150 (1964). Further, while such material might be presented once in a series part of which has been S<:lreen~and approved,its presentation is then picked up, either by complamt or station personnel, and a judgment made as to further presentation. So also here, disc jockeys could be instructed that where there isa question as to whetherarecord promotes the illegal drug usage, a resl?onsible management official should be notified so he can exercise his]udgment. It may be that a record which raises an issue in this respect is played once, but then the station personnel who have heard it will be in a position to bring it to the attention of the appro priate management official for his judgmenLFinally, we .are.not call ing for an extensive investigation of each such record. 'Ve recognized in theADL case, 8upra,that imposition of any undue verification process "could significantly inlIibit the presffiltation of controversial issue programming" (6 FCC 2d at p. 386) ; cf: The Washington Post v. I!eogk, 365. F. 2d~65(C.A.D.C., 1966). That is equalIyso here.~here­ fore, what IS reqUIred IS sImply reasonable and good faIth attentIOn to the problem. We would conclude this aspect as we did in the prior Notice. 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 certainly no less is called for. 9. We think that the foregoing is dispositive of the major argu ments presented. The licensee is not a book store, but a pubhc trustee of 'an inherently limited resource who is fully responsible for its operation in the public interest. We have made-clear that we are not seeking through a euphemism, license responsibility, to eJ:l'ect the wholly improper result of barring certain kinds of speech. 1Ve have imposed no onerous requirements in this respect, and have further stressed that the judgment whether to playa particular record is to be made by the licensee alone. 1Ve have noted the arguments that some licensees have dropped all records referring to drugs--in er roneous reaction to our Notice. If that is the case, we trust that with the issuance of this opinion such licensees will c€"se such grossly inappropriate policy and rather will make 9. judgment based on the partIcular record. Finally, to the argument that suggests impropriety in our issuance of a Notice concerning the need for licensee respon sibility in the area of records promoting drugs, the short answer is set forth in par. 3, suprlb--that this is an area of great concern in view of the epidemic proportions of the problem, that we had numerous complaints, and that we had some indication of licensee indifference because all that is involved is the playing of records. We have in the past issued similar Notices when there was indiffer c ence to the policy of licensee responsibility in other areas. See, e.g., Public NotIce concerning Foreign Language Programs adopted March 22, 1967, FCC 67-368, 9 R.R. 2d 1901. Of course, the policy of licensee responsibility is applicable generally, but that does not mean that we cannot issue appropriate.Notices when there is an in dicated need therefor. . 10. An argument is also.a~vanc~das to the necessity for rule m3;k mg notIce under the AdmmIstratlve Procedure Act.,But our.NotICe 31 F.e.e. 2d '\'Reciird8/Bevww'o!'byBroadeast Licewsee8 381 establisheS. no hew: rUle' or indMd even a new policy; It reiterates an established bedrock policy--:licensee responsibility. If this opinion werewithdr~wn, licensees would Still be required to observe that policy based' on scores of prioi-, decisions. We therefore do not petceive how themh; making notice reqnirements ofthe APA are at all appli- cable here. , " '. ' 11. Asa mal point; we wish to stress that the issue of drug lyrics ~~utqn,:facet,oftheoveralld,ruS"probl(l~,and it would be unfor t~teif It,;were to be blown ou,to£ proportion. For, consIderation of tj:l.\s aspect -18, of course, "not the be-all and mid-all of what a broad caster' can do to serve the' public interest in this important area. The public' geperally. is now 'a--"'are',of the existende of the drng abuse probl",m. The alert has been sOunded, and ltroadcasters have played an important role in informing the public.Th~present challenge and opportunity, for those broadcasters who wish to help, is to inform our citIzens, as to what can be done to, find solutions to the problem of drug abuse. Indeed, because the drug problem is complex, and fraug-ht with emotion, there is the possibility of a good deal of misinformation being circulated. Broadcasters wIlo develop their own materials and programs relating to drug abus" could, if they wish, consult with experts in the field, both in the public and private sectors to insure the accuracy and reliahility of their programniing. In short, we believe thatli~enseescau playa constructive role in helping the nation seek solut.ions to~he~rugp.roblem,just as manx ofthem have.done, through publIc servIce hme, ill alertmg the natlOn to the eXIstence of the problem. , " " 12. Accordingly, the request of Pacifica for stay IS DENIED, in view of the above discussion. The requests of the petitioners IS GRANTED to the extent reflected above (see, e.g., footnote 6, 8upra; pp. 9-10, Pierson, Ball & Dowd petition), and in an other respects IS DENIED. FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary. 31 F,C.C. 2d 382 Federal Oommunications Commission Reports CONCURRING STATEMENT OF COMMISSIONER ROBERT T. BARTLEY This Memorandum Opinion and Order purports to return to the situationpriorto release ofthe Public Notice ofMarch 5, 1971. To the extent that it does so, I concur in the action here taken. CONCURRING OPINION OF COMlIUSSIONER H. REX LEE I originally concurred in the Public Notice concerning the broad· cast of recorded lyrics tending to promote or glorify the use of drugs because I strongly believed that every licensee should be reminded of the general responsibility for program material. However, I did have some concern that the Notice might be misunderstood, and so stated in my concurring statement. This has happened. The Notice has attracted a wide divergence of opinion and considerable confusion about its meaning. I am concurring in this Order because it supersedes and clarifies the meaning of the original Public Notice. I construe this action to mean the Commission is merely reaffirming its 1960 Program Poli/Jy Statement covering the general area of licensee responsibility. In my view this reaffirmation has the effect of notifying the broadcasting industry that recorded music and musical lyrics are not being singled out for separate or different treatment than the licensee is generally required to accord all broadcast programming. I do not belie,-e the Commission ever intended more, nor that it now intends Some higher degree of control which requires broadcast licensees to assess their programming with an eye to what they believe the Commission may or may not want broadcast. CONCURillNG STATElIIENT OF COllIl\USSIONER ROBERT WELLS I joined in the initial public notice concerning drug lyrics. I did not interprct it as an attempt to censor. That is not the role of the Commission. This is so stated by law. I intended the notice to be a restatement of the long established principle that licensees are respon sible for knowing what they broadcast. The press re.porting of the notice was generally inaccurate and reaction of the affected industries was overstated. I concur in this JYIemorandum Opinion and Order which I trust will clarify the )?ublic notice. It should be apparent to lIcensees and to the Commission that the mere task of distinguishing which records do, in fact, glorify the use of drugs is an impossible assignment. Interpretations are too varied for any agency or individual to attempt to be the arbiter of the public taste. For those who would find sinister motives of a governmental agency in this document, let me call particular attention to Paragraph 4 which says in part, "We stress that such an evaluation process (selection of records to be played) is one solely for the licensee. The Commission cannot properly make or review such individual1icensee judgments." 31 F.C.C. 2d