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"Redskins" License Challenge at FCC Raises Novel Legal Issues
Likely to Delay Renewal of WWXX - Could Have Many Other Repercussions
For example, the law governing FCC procedure may require the agency to at least set down for a hearing, and probably decide, issues like:
■ do racial slurs such as "Redskins," "N*gg*ers," and other swear words constitute "profanity" which, by law, cannot be aired from 6:00 AM until after 10:00 PM to protect children;
■ do racial slurs such as "Redskins," "N*gg*ers," and other swear words also constitute "hate speech," and, if so, can the indiscriminate use of "hate speech" by broadcasters possibly be consistent with their legal obligation - and a major condition for license renewal - to operate in the "public interest";
■ does the broadcasting of racial epithets and swear words ever cause, contribute to, and/or exacerbate violence such as beatings, bullying, etc. and/or psychological harm including suicide - something the FCC has been asked to look into by dozens of civil rights organizations especially concerned about the effect of broadcast media on extremist groups and unstable individuals;
■ do broadcast stations engage in legally prohibited "racial harassment" when they force employees to handle and even read on the air copy containing racial slurs - for example, if a station can require American Indian employees to read about and discuss a sports team, musical group, or other entity whose name includes the word "Redskins," could it do the same with African American employees required to report about the "New York N*gg*ers" or the “Washington W*tbacks”;
■ if, as the FCC has ruled, a one-second display of a woman's nipple (e.g., the wardrobe malfunction incident) and the momentary use of profanity in a completely non-sexual context (e.g., Nicole Richie's getting "sh*t out of a purse" isn't "f*cking simple") is so contrary to the public interest as to warrant a monetary fine and possible license revocation, why doesn’t the repeated and unnecessary use of a racial slur during prime time warrant a warning, or at least a raised eyebrow;
■ since, in the 1970's, the FCC issued a threatening "policy statement” warning stations against playing songs which allegedly encouraged drug use - e.g. that a teen, after hearing Lucy in the Sky With Diamonds, would be moved to try LSD for the first time - based upon virtually no evidence, shouldn't it similarly address the issue of racial slurs on the air by at least issuing a similar policy statement, if not indeed refusing to renew a license when the issue is directly raised in a legal pleading.
The document filed with the FCC on Tuesday, styled as a “Preliminary Formal Petition to Deny Renewal of WWXX-FM's FCC Broadcast License Pursuant to 47 U.S.C.A. § 309(d),” requests that the agency refuse to renew this broadcast license to Dan Snyder on a number of grounds:
■ that the repeated and unnecessary use of a word held in many proceedings and by many organizations to be a "racial slur" is inconsistent with the station's obligations to operate in the public interest;
■ that - as suggested by a former FCC chairman, two former FCC commissioners, and many other broadcasting law experts - broadcasting this "racial epithet" is akin to broadcasting "obscenity,";
■ that it constitutes "profanity" which cannot be used during most of the broadcasting day;
■ that its use constitutes "hate speech" which causes harm to individuals;
The law requires the FCC to set such petitions down for hearings if there are any material and substantial issues of fact at issue. Since Banzhaf’s petition both alleges and includes dozens of studies showing that racial epithets - especially those directed at American Indians - cause harm, and any harm flowing from broadcasts would seem to be a very relevant factor in determining if a station is operating in the public interest, it appears that a hearing would have to be held on this issue alone, along with many others.
The Petition also requests, based upon a public suggestion by a former FCC Chairman, that the FCC “should consider whether Mr. Snyder is fit to own radio station licenses given that he uses radio stations to broadcast an ethnic slur.” Issues of character and fitness almost always require hearings, says Banzhaf, who is best known in the broadcasting world for FCC legal actions which forced stations to carry antismoking messages, for helping to bring an end to cigarette commercials, and for successfully pressuring TV stations to use African Americans as news reporters and in other significant on-air roles.
He also notes that virtually all license challenges hang over a station like a Sword of Damocles, impacting the station’s credit rating, its ability to be sold, to be transferred or to merge, its ability to attract talent, and even to enter into contracts. “Who wants to take even a 5% chance that its FCC license - the most valuable asset any station possesses - will not be renewed, or even will be held up for years.”
One broadcasting law expert, quoted in the media, put it bluntly: “As long as WWXX license renewal application remains pending, however, it is vulnerable to an objection being filed against it. . . . the FCC will often take years to grant a license renewal application that has objections filed against it. . . . Banzhaf is reportedly fairly adroit at manipulating the FCC's process.”
This legal maneuver, which reportedly is only the first of many uses of broadcast law to come, could be especially important. “Moral suasion - even coming from the President, half of the Senate, many members of the House, virtually every major Indian organizations, many major civil rights organizations, and a variety of governmental entities - is not likely to change Snyder’s mind. But economic pressure can.”
GWU Law School