Dear Senator:

The Future of Music Coalition is a national nonprofit organization that has spent the past five years identifying, examining, interpreting and translating the challenging issues at the intersection of music, law, technology and policy. 

FMC is very concerned about S. 193, the Broadcast Decency Enforcement Act of 2005. For years, FMC has documented the negative effects of increased consolidation of radio including increased homogeneity in programming and artists’ limited access to the airwaves.  In this environment, artists have no influence or control over what is broadcast. It is therefore critical to reiterate that the responsibility for broadcast content lies with licensees and not with artists.  The House bill failed to make this distinction. The resulting notion that an artist will be held liable when they have no control over what is broadcast is not only illogical, but also unjust. The Senate must not follow this course and should not add performer fines to S. 193.

FMC is also extremely concerned that the Federal Communications Commission lacks the resources and perspective necessary to fully assess in each instance what may or may not be considered indecent according to a specific local community’s standards.   Further, the language of S. 193 does not distinguish between political/ social commentary and industry attempts to generate revenue via risqué programming.

This is especially pertinent in the realm of non-commercial radio.  Non-commercial radio is often locally operated and focused on education, information and community building.  This stands in stark contrast to commercial radio, which operates to amass the largest possible audience in a specific demographic in order to maximize advertising revenue.  The ability of non-commercial radio to provide insightful and thought-provoking programming is vastly impeded when licensees are constantly worried about being fined for broadcasting potentially controversial art, political discourse or social commentary.  

The case of KBOO is but one example of how the current regulatory structure can place a disproportionate economic burden on non-commercial stations.  In May of 2001, Portland non-commercial station KBOO was fined $7,000 for playing Sarah Jones’ “Your Revolution”, a specific response to negative female stereotypes found in several chart-topping hip hop songs.[1] KBOO incurred more than $25,000 in legal fees just defending itself against the FCC’s ruling that the song’s lyrics contained ‘unmistakably patently offensive sexual references’,[2] arguing that the song was not indecent but a context-laden cultural critique. 

The increased fines proposed in the Broadcast Decency Enforcement Act would be a slap on the wrist to major media corporations but crippling to non-commercial broadcasters.  It is our sincere concern that such inequity will have a chilling effect on the ability of non-commercial stations to contribute to our society’s cultural discourse.

In conclusion, it is critical to point out that indecency rulings have focused disproportionately on particular genres of music and specific cultural communities.  Since the FCC issued its Indecency Policy Statement in 2001, the examples of indecency enforcement involving music (other than parodies) in the public record involve urban, rap and hip-hop songs, most notably Sarah Jones and Eminem’s “The Real Slim Shady”.  

In his dissent in the landmark Pacifica case, Justice Brennan was prescient on this issue, criticizing the plurality’s “depressing inability to appreciate that in our land of cultural pluralism, there are many who think, act, and talk differently from the Members of this Court, and who do not share their fragile sensibilities.”[3]  In 1970, FCC Commissioner Johnson further expanded, in a dissent, “What the Commission decides, after all, is that the swear words of the lily-white middle class may be broadcast, but that those of the young, the poor, or the blacks may not.”

We believe there are serious unintended consequences to this legislation. Individual performers who have no control over the broadcast airwaves may be fined for programming actions out of their control. Non-commercial stations may self-censor and not air important political or controversial topics for fear of fines. Entire genres of music may be boycotted for fear of being labeled indecent.

For these reasons, FMC urges you to strongly consider the potential impact of the Broadcast Decency Enforcement Act on artists and non-commercial speech.  Thank you for your time and consideration and please let us know if you have any questions or need further information. 

Respectfully submitted,

Future of Music Coalition
March 10, 2005

Notes

1. “Counter Revolution: FCC Dubs Feminist Lyrics ‘Patently Offensive’”, by Chisun Lee, Village Voice, June 20, 2001 http://www.sarahjonesonline.com/press/VillageVoice.html

2. In the Matter of The KBOO Foundation, 16 FCC Rcd. 10731 (Enforcement Bureau 2001) (issuing $7,000 forfeiture for broadcast of “Your Revolution”).

3. FCC v. Pacifica Foundation, 438 U.S. 726 (1978)