Records, Review of by Broadoast Lioensees 385
F:C.C. 71-803
BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
Inthe Matter of }
LICENSEE RESPONSillILITY To REVIEW RECORDS
BEFORE THEm BROADCAST (F.C.C. 71-205,
71--428)
ME~fOiL~KDUMOPINION AND ORDER
(Adopted August 4, 1971; Released August 18, 1971)
By THE COMMISSION: COMMISSIONER BARTLEY ABSTAINING FRmI
VOTING;CO~Il\nSSIONERJOH~SONDISSEXTING AND ISSUING A
STATEMENT.
. 1. The Commission has before it a petition for reconsideration of
its Memorandum Opinion =d Order adopted April 16, 1971, FCC 71 
428,--FCC 2d--, filed jointly by YaIe Broadcasting Company
(WYBG-FM), University of the Pacific (KUOP-FM), Steve Leon,
Nationa1 Co-Ordinatin.e;COlIDcil on Drug Abuse Education and In 
formation, Inc., :Mark liOI'bulew, Sara Vass, .Jalm Gorman,.KeJmeth
P. Currier, Stuart Jackson, James H. Irwin and Charles Laquidara.
2. Our opinion of April 16, 1971 dea1t with petitions for reconsider 
ation of our Public Notice of March 5, 1971, 28 FCC 2d 409. Although
we statoo thRt our opinion on reconsideration constituted 0111' definitive
statement, the present petition alleges that there are inconsistencies
between the original Public Notice and the opinion on reconsideration.
It also .claims that we have not made clearthe precise manner in which
licensees are to keep themselves informed concerning the re.cords they
play, =d requests a ruling upon the adequacy of the policy adopted
by Yale Broadcasting Company which is set forth at length in the
petition. Finally, the petition requests a more definitive stateJnent
concerning the nature of Commission review of the licensee's judgment
in playing records.
3. VV10 do not believe that any further extended discussion is war 
ranted. We note first that our April 16, 1971 opinion stands as our
definitive statement in this area, and see no need to analyze it for
alleged inconsistencies with the Public Notice of March 5, 1971. Sec 
ondly, we nmde amply clear upon reconsideration that we were con 
cerned in t:hisarea with the nmintenance of the "well established
concept of licensee rosponsibility," and that it was this concern that
had prompted issuance of the Public Notice. Since this concept has
been enunciated again and again and has caused no apparent difficulty
of underst=ding or impleJllentation, =d since we do nat have before
us a particularized situation involving a concrete application of the
principle, it would not appear to be useful to attempt any ,additional
31 F.C.C. 2d
386 Federal Oommunications Oommi88ion Reports
dpJIDition.' 'Ve thinko~rpre:ious opinion was adequ3JI:ely clear in this
respect. The same consIderatIOns apply to the rcquest for a definition
of the :C?mmission's :eviewing rule. Finally, we decline to rule upon
the vahdIty ofthe pohcy statement submItted on 'behalf of Yale Broad 
casting Company. This policy st3Jl:ement is presented in the abstract.
'Ve are loath to embark upon individual rulings for individual li 
censees concerning their proposed handling of specific types of pro 
gramming upon the basis of gcneral policy statements not fleshed out
by the licensee's actual operation. In this delicate area, we think it
preferaJble to avoid unnecessary rulings.
4. Accordingly, thc petition for reconsideration IS DENIED.
FEDERAL OnUfUNICATIONS COMMISSION,
BEN F. WAPLE, SecretanJ.
DISSENTING OPINION OF CmnnssImmR NICROLAS JOHNSON
In their action today, my colleagues continue to refuse to clarify
their actions concerning the responsIbilities of licensees who play con 
temporary music that contains lyrics making references to drugs.
I dissent, because I believc the Commission has missed an oppor 
tunity partially to undo the damage it has done in its prior actions.
The result is a set of Commission policies which are so vague and
overbroad as to continue to be impermissible under the First
Amendment.
I dissented to the Commission's first action-a public notice---and
my views are set out there in full. 28 F.C.C. 2d 409, 412 (1971). I also
dissentoo to the Commission's attempt to explain its action-the
April 16, 1971 order (FCC 71--428)-reconsideration of which is
sought by petitioners. In my view the only way the Commission can
repair the adverse effect of its public notice is clearly and directly to
rescind the notice and reaffirm the Frst Amendment rights of licensees
in the presentation of programming. .My colleagues donot agree, and
I therefore felt unable to join the very telling and commendable state 
Illent of Commissioner Bartley.
Now once again the Commission llolds to a discredited action and
declines to swallow its pride and admit a mistake. In a rather un 
usual treatment of a 37-page petition for reconsideration, the Com 
mission declines even to address the substantive issues raised in the
petition. The majority's opinion is apparently that its "definitive
statement" of April 16 is sufficient answer. I do not agree.
'Petitioners ask the Commission for clarification of a number of
points. I will treat several.
«1) Petitioners suggest that the Commission's requirements for the
exercise of what it calls "licensee responsibility" are vague,and be 
cause the requirement is to be considered in the !rcense renewal process,
such vagueness can have an inhibiting effect on the licensee's full free 
dom < to choose his programming WIthout the threat of government
censorship. In its April order, the Commission said it would not ques 
tion licensee judgments on particular records, and that 'all that was
1 We think it appropriate to point out,- however, that petitioners" re.Peated reference to
a pre-screening requirement for each record is an erroneous interpreta.tion of our April 16,
-1.971 order.
3~F.e.C. 2<l
Records, Review of by BroadcG1Jt Licensees 387
required was "reasonable and good faith attention to the problem" 
but then paragraph 8 of the order suggests a detailed review process
that would seem to require screening of every record broadcast. The
majority's only response to the request for clarification is an ambigu 
ous footnote.
(2) Petitioners ask for clarification of the Commission's standard:
lyrics that "promote or glorify" illegal drugs. The majority makes
no response. This is an area where particularity and examples am
most helpful-if not, indeed, essential-if licensees are not to be
inhibited..
1(3)i Petitioners ask that the Commission set forth the evidentiary
rationale implicit in its prior action&--that there is such a relationship
between song lyrics and the use of illegal drugs as to justify Commis 
sion intrusion of this extraordinary nature. The Commiesion declines
to spell out the evidence justifying its prior actions.
(4) Petitioners submit a concrete proposed policy statement by a
Commission licensee, asking whether or not such a station policy
complies with Commission policy. I have attached that proposed policy
statement as an appendix to this opinion. Finding the proposed policy
statement "abstract" and not "fleshed out by the licensee's actual opera 
tion" the majority has refused to rule upon it, and concludes: "In thi3
delicate area, we think it preferable to avoid unnecessary rulings:'
Would that this thought had occurred to my colleagues in March 1971.
Since it did not, I think we are now obliged to give at least this
much effort to remedying the confusion.
I have ouly sketched some of the areas where the Commission
could have clarified its 'policies and refused to do so, because the
principal problem with the Commission's action is much more general.
The principal effect of threatened governmental sanctions against
the exercise of First Amendment freedoms are indirect. Even in a
society as free as ours there are natural inhibitions to speaking one's
mind in ways likely to alienate actual or potential institutional leaders,
employers, friends and neighbors. All incentives encourage conform 
ity, suppression of the uncomfortablet~th,and theev~ntualatropl~y­
inO' of the very powers of perceptIOn and analysIs upon whICh
individuality (and a vibrant democracy) depend. All too many of
those of us who are dependent upon positions in institutions are so
busy trying to find out which way the mind is blowing that we don't
even need to be told what is expected of us. 'We certainly don't need
to be told twice. And when the President of the company (or the Vice
President of the United States, or the Chairman of the FCC) shouts
at us and tells us to stop what we're doing it takes an unusually strong
(or foolish) Person to go on speaking or performing as before-how 
ever deeply he feels about it. No matter how urgently we are sub 
sequentlyassu~edthat all is forgiven aI!-d. that .we are enco,:,raged to
"speak our mmds" (or that the AdmImstratIOn doesn't mtend' to
censor newsmen and suppress radical dissent, or that the FCC doesn't
really mean to ban records) we have already been psychologically in_
hibited. The First Amendment damage has already been done.
Suppose, for example, a high school principal and teaching staff
vote unanimously to ban long hair on high school males. Assume a
bold student takes the ruling to court and gets it reversed as uncon 
31 F.C.C. 2d
388 Federal Oommunications Oommission Reports
stitutional, and that it is subsequently withdrawn by the school. How
many students--dependent upon that administrationand faculty for
grades and college entrance recommendations-will choose to exercise
their newly found legal rights (and thereby risk the possible antago 
nism of those upon whom they are dependent)!
So, in this case, there's really no way-under the best of circum 
stances-that we can get the toothpaste back in the tube once it's been
squeezed out all over the wash basin. Broadcasters-courageous and
cowardly.alike--are a pretty skittish lot. The Administration, and the
FCC, know that. Having been told-very loudly and clearly'--that
powerful people in Washington are interested in their records' song
lyrics, all too many will go out of their way to select lyrics designed to
please. At that point the Government has succeeded in its purpose; it
is. then safe to issue all the apologies and rescinding statemente nec 
essary to silence the critics.
Under these circumstances the very least we should do, I believe, is
to issue a clear and unequivocal repudiation and withdrawal of our
March 5 and April 16, 1971 Policy Statement. Even that would fail to
undo the havoc we have wrought. That the majority refuses to make
even such modest amends is disturbing.
APPENDIX A
STATION POLICY CONCERNING THE BROADCAST OF MUSICAL RECORDINGS
Preamble
The -licensee has always endeavored to comply fully with all Qommission rules
and 'with the spirit 0:( the First Amendment and will continue to do so in the
future. ,The licensee believes that its primary obligation is to meet the needs
and desires of its listening audience. Since its audience is intelligent and sophis 
ticated~the licensee has always attempted to present the highest quality pro 
gramming.. -In, addition to quality, the listening audience demands that this
licensee not ShUll controversy and present diverse views on the curre'nt problems
of the day. It demands that the licensee remain informed' on the pressing 'prob 
lems of crime, race relations, war, violence, drug abuse, and poverty and that
it attempt to program in a TIlanner so as -to, in turn,inform its audience.
The licensee endeavors to present a variety of musical programming· which
is of the highest artistic and creative quality_ Our audience demands this of us.
On March 5, 1971, and again on April 16, 1971, the]~ederalCommunications
Commission issued statements expressing its concern over the indifference of
some licensees to musical recordings which "promote or glorify the use of drugs."
This licensee has always been aware of the critical problem of drug abuse in the
community as well as nationwide. As in other areas" it has responded to the
problem by informing its audience ofthe facts of drug abuse, 'and presenting
programming warning of possible dangers of certain drugs. It has attempted to
bring to bear intelligent and responsible .comment in this crucial'area.
The management and staff of this licensee- continually review and.evaluate
programming for its relevance to current public issues and for its 'compatibility'
with the high standards we and our audience have set. This evaluation extends
as well to our musical programming., Because our audience demands it, we
program a variety of popular: music. with special.c;oncentration .upon modern
rock,blue~,soul, jazz and folk music., '; . , .
,Ve have been and are a ware that certain of this 'music is controversial and
not', approved of by certain segments of the Anierlcan populace.' We have been
and are aware that certain of the music presents unpopular political, cultural
and social ideas through the song's lyrics. Certain :-0£ the music .refers to the
illegal ,use of drugs. Since these unpopular ideas and "the use of illegal drugs
has¢reated such controversy, we deem it necessary tof6rmally reiterate'our
policy'with respect to the presentation of musical recordings. Thi-s'is done 'to
31 F.C.C. 2d
Records, Review of by Broadcast Licensees
389
inform our staff and audience of the position we take with respect to our musical
programming and what we require of onr'staff in satisfying our public obliga 
tions. This policy follows:
(a)' The licensee believes that music and especially modern popular music
is an important fOrID of communication and art, and believes that itsrespon 
sibilities to the public require it to present the view of the artist without
restraint or censorship. .
(b) The licensee endeavors to evaluate all its programming for corn 
'patibility with the needs and desires of its audience. Among the ways it does
so is to employ announcers who are thoroughly familiar with modern re 
corded music, and who are "intouch" with current tastes and preferences.
(c) The licensee is concerned and a ware- of the probleins of drug abuse and
will always attempt to present programming which responds to this issue
of current and pressing public concern., Su'ch programming is and will be
in the form of news, spot announcements and specific programming directed
to this issue.
(d)' Modern popular music, including rock music, is a medium of com 
munication for the young. It reflects the 'cultural aspirations, and the high 
est and lowest ideals of youtk It is first and foremost the creative expres 
sion of the artist who views the world as he sees it and expresses this view
through his music. The music is an artistic whole comprised of sound and
words. More often than not the lyrics are not as important to the artist's
view as is the music. The lyrics become part and parcel of the mUSic and
have no independent life of their own.
(e) Censorship of the musical artist is contrary to the policy of this li 
censee. To censor lyrics because of their verbal content would prevent the
a udience from enjoyment of other important artistic, cultural and social
facets of a particular song. .An announcer's obligation as an employee of the
!icensee is to judge the song on the basis of its overall artistic merit and
to present the audience with superior music.
(f) The licensee has determined that emphasizing lyrics over other ele 
ments of an artistic musical work for the purpose of not playing it is in 
-consistent with the nature of the art form and the wishes of our aUdience
who should not be deprived of the right tG hear any song as long as it is
of superior overall artistic merit.
(g) Because the licensee, in exercising its responsibility in this and other
areas of public concern does not permit the censorship of a song because of
its lyrics alone, management officials and announcers need not examine the
l;rrics of records but should treat it as an artistic Whole. As a general rUle,
the announcer will have listened to the record before it is played but this
will not be true in all cases. Because of the substantial number of new
releases and the already large volume of records already released, it would
be overly burdensome for the staff to listen to every cut of every record.
The announcer may wish to play new releases after having only heard a
small portion of one cut. He may wish to playa song by a particular group
which he has not heard. This is consistent with the spontaneity and crea 
tivity of programming which this station desires to achieve. The staff's
obligatioll is to program good music in a creative manner. This does not
require the announcer to pre-screen songs, specifically listen to lyrics, deter 
mine their meaning or decide their social or moral import. He may do so if
you -"ish if such judgmeHt is relevant to the artistic quality of the song or
to your program concept. The licensee's obligation with respect to drug abuse
will be more appropriately carried out in the forum of other programming.
Preauditioning for lyrical content is burdensome, completely unnecessary,
and contrary to this station's policy.
(h)~rhelicensee believes that songs, including their lyrics, are protected
forms of expression under the FirstAmendment~and deserve to be heard
by ,our audience without interference.Moreover~it is the obligation of the
licensee to be responsive <to the First Amendment rights of its audience.
(i) The licensee will continue to supervise announcers'~electionsof music
by selective monitoring as programs are broadcast. By thIS procedure, man·
-agement will be able to determine whether the music being ,played meets its
standards and the standards of its audience. The licensee will continue to
evaluate and reassess these standards by responding to complaints and
request from its listening audience in order to continue to present music of
31 F.e.e. 2d
390 Fedeml Communicl.'tiol1S Commission Report8
tli~highest musical and artistic quality-as judged 'by the licensee, its lis-"
teners, and its announcers. .
(j) Announcers are hereby instructed to immediatelY reportto a respon 
sible. management official any musical recording' which contains illegal
speech-such as obscene language, 'lotteries, and the like. Though it is un 
likely that musical recordings will (.'Ontain such illegal speech, you are
reminded that the law prohibits the broadcast of illegal speech and yon
should endeavor to remain aware of.this fact. Such, recordings. if you he 
come aware of them prior to broadcast, should not be plaYed unless manage 
ment has reviewed them. If you, ·as ,would he expected, 'become aware of
illegal speech as you play the record or thereafter, the record shonld not be
played again until management has had the opportunity·to review it. Except
for this obligation, announcerS are reminded that they must not concern
themselves with the content and meaning of record lyrics, but must devote
themselves, as artists, to the musical validity of Ithe work.
(k) The licensee believes that the above Policy comports with the obliga 
tions of licensee responsibility. This licensee is alWayS aware of what it
programs and is constantly evaluating Its re'sponse to cultnral, political,
moral and' other public concerns. oUr evaluation,as reflected herein, is that
our respDnse to illegal drug use will be centered elsewhere and not in the
censorship of the musical artist.
31 F.e.a, 2d