Cathy Seipp reports:
KCRW [a local public radio station] just sent out a weirdly dainty inhouse memo/press release saying that “she uttered a certain banned word that could have cost us our license with the FCC.” Therefore the fateful, f-word Feb. 29 “Loh Life” was the last one for KCRW. . . .
I have the whole story — or at least the whole story so far — in my media column for tomorrow’s (Thursday’s) L.A. CityBeat. The only info I’m going to put here from that piece is that the “fuck” on the air was an accident: the engineer forgot to bleep it out from the prerecorded spot, which both he and Sandra had certainly meant to do.
I’ll tell you what I think about this, and I’m not scooping my own column because I didn’t have room there to go into analysis, but I think the problem is not really the FCC, but broadcasters overreacting to the FCC. . . .
[KCRW says] “we have received many complaints as a result” of Sandra accidentally saying “fuck” on the air. Actually, she says they told her they got zero complaints the first time her spot aired — at 7:35am Sunday morning, because who’s listening then? — and then a few complaints after it repeated at 9:35am.
But how likely is it that the FCC would have yanked KCRW’s license, or even fined them, for an accidental “fuck,” uttered by someone who’s not exactly a shock jock? . . .
I think Cathy is quite right; though I’m not an expert on all the details of the FCC’s rather complex stand on broadcast “indecency”, the FCC’s summary seems to suggest that an isolated “fuck” in the usual TsingLohvian monologue (I’ve heard her many times, and like her work, which is generally not aimed at titillation or shock value) would probably not be punishable:
The principal factors that have proved significant in our decisions to date are: (1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value. In assessing all of the factors, and particularly the third factor, the overall context of the broadcast in which the disputed material appeared is critical. . . .
Check out, for instance, these examples given by the FCC on pp. 10-11:
WYBB(FM), Folly Beach, SC “The Morning Show”
The hell I did, I drove mother-fucker, oh. Oh.
Not Indecent. L.M. Communications of South Carolina, Inc. (WYBB(FM)), 7 FCC Rcd 1595
(MMB 1992). The “broadcast contained only a fleeting and isolated utterance which, within the context of live and spontaneous programming, does not warrant a Commission sanction.” 7 FCC Rcd at 1595.KPRL(AM)/KDDB(FM), Paso Robles, CA News Announcer Comment
Oops, fucked that one up.
Not Indecent. Lincoln Dellar, Renewal of License for Stations KPRL(AM) and KDDB(FM), 8 FCC Rcd 2582, 2585 (ASD, MMB 1993). The “news announcer’s use of single expletive” does not “warrant further Commission consideration in light of the isolated and accidental nature of the broadcast.”
(Note, though, that “In contrast, even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness. Examples of such factors illustrated by the following cases include broadcasting references to sexual activities with children and airing material that, although fleeting, is graphic or explicit.” For details, which I doubt would be remotely analogous to the Tsing Loh piece, see the FCC document.)
I realize that some think the FCC will crack down harder after WardrobeMalfunctionGate. I also realize that these sorts of vague rules do tend to pressure risk-averse broadcasters into dropping any material that’s on the borderline, even if ultimately, after litigation, the material would have been found to be legally permissible — that’s the famous chilling effect.
But it seems to me that broadcasters, especially those that see themselves as mainly aimed at providing an alternative voice in the service of the public (such as public broadcasters like KCRW), shouldn’t be that risk-averse: They should take a stand on behalf of their talent, as Pacifica did in FCC v. Pacifica Foundation, even if that means some risk of public criticism or even a (small) risk of an FCC fine. (I think the chances of KCRW losing its license over something like this are virtually nil.)
KCRW is certainly constitutionally entitled to act as it did, and to have a general no profanity policy. But given the quality of Loh’s work, and the smallness of her transgression, it seems to me that KCRW was mistaken.
UPDATE: Marty Lederman points to the FCC decision refusing to impose liability based on Bono’s “fucking brilliant” comments at the Golden Globes. The decision partly rests on the word’s being unrelated to sex, so it isn’t squarely on point for Tsing Loh, since the word is related to sex in the Tsing Loh monologue; I just read the relevant excerpt from the monologue, which incidentally confirms my initial guess that the context for the remark is really quite mild, and neither titillating nor shocking. But the decision also rests on the principle that “fleeting and isolated remarks of this nature do not warrant Commission action” — and this does equally apply to Tsing Loh’s words.
FURTHER UPDATE: Here’s Cathy Seipp’s City Beat column on this, which also provides the relevant excerpt from the monologue.
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