I think the question here is not really one of obscenity. Obscenity is a very narrow legal concept. I think the real question here is that people are offended by the language used. I think that the use of offensive language is a matter of taste.

I think that under section 326 of the act and under the first amendment, it is not the proper business of the Government to concern itself with detailed matters of taste of its licensees.

Certainly, if I found a licensee who presented nothing but this kind of programing, I think I would have some question as to whether that was an overall operation in the public interest.

When Commissioner Lee indicates this is the typical programing of Pacifica, I think that is an overstatement. We do have more complaints about their station than most others, quite often involving the use of offensive language. But at the same time the station plays a great deal of classical music, it presents a wide spectrum of political thought, and has news. It plays the recordings of serious plays, it presents poets in readings of their original works.

I think if you were to look at the program schedule of one of these stations, you would find it highly commendable. It is making an effort to provide a range of service for its audience that all too often is lacking on commercial stations.

This is made possible by the fact that these stations are not supported by advertisers. They depend entirely upon finding an audience which is pleased with their service to the extent that they will send in voluntary subscriptions to pay for it.

Senator Scorr. Suppose, Commissioner, that this station repeated a poem of this type every night at 10:30? Would that change your opinion?

Mr. Cox. I think if they read it every night simply by itself, that they obviously would be trying to shock or to titillate the audience, which I would not find acceptable. But they read it as the basis for serious discussion by people who seemed to be qualified to address themselves to the question of whether there was redeeming social value-and they found it. They thought the author of the poem was a highly moral person who was very critical of the protagonist in the poem, and of the society which had made her—and that in effect the poem was a call for action, a criticism that nothing had been done.

Now, I may not agree with that judgment; I am not sure I am really competent to make it. But I think, as I read the record and as I listened to both the announcement that was made in the morning when the program was regularly scheduled, and in the evening when it was presented-and it was carried on for an extra 4 and 5 minutes beyond its normal expiration time because of the audience's interest in the subject-it appeared to me that the station was not simply trying to publish an obscene work for the sheer act of doing so, that they were presenting what at least the participants in the panel felt was a serious work of art, or an attempt at a serious work of art, which had become quite clearly, if you study the chronology of what happened there, had become the center of a sharp conflict over academic freedom.

Senator Scort. I am not proceeding from any prudishness at all. It seems to me that your rationalization is a good deal like that story about the man who said to the girl, "We have determined what you are, it is only a matter of price from now on," in your distinguishing between one event and it can happen every night."

Mr. Cox. I think the distinction is this, that it is quite possible to present a poem containing language offensive to some, if it is presented in a setting which makes it clear that it is offered as a work of art.

For example, this station was in trouble once before with the Commission because it has presented the readings of some poems on its station in San Francisco, readings by the author of the poems. After reading 16 or 18 rather dull poems, with nothing offensive in them, he came to two which did have some offensive words in them which the station admitted it had failed to detect. It said that had it detected them it would not have broadcast them at that time of day. It still felt, however, that the gentleman in question was a serious poet and that whatever his reasons for using this kind of language, they were entitled to present his poetry and have it judged by the public. The public doesn't have to like it, of course.

Senator GURNEY. How many complaints have you received in the Commission about the Pacifica Foundation and its programing?

Mr. Cox. I don't know. I have an analysis here for some limited periods. At one stage when this matter was before the Commission, we asked the staff to prepare the list of complaints.

Senator GURNEY. When was this? Are you talking about the Houston station or some other matter?

Mr. Cox. This was earlier in the year. This was in June.

Senator GURNEY. Of this year?

Mr. Cox. Of this year.

Senator GURNEY. Was there a hearing of some sort?

Mr. Cox. No, there was some matter before the Commission and for our information we asked the staff to prepare an analysis of complaints either for the preceding year or for the entire term of the station's last license period whichever was longer.

Senator GURNEY. What was the matter before the Commission? That is what I am trying to find out.

Mr. Cox. I think that was the application for a channel, in Washington, which the Commission has now designated for hearing because there was a competing application.

Senator GURNEY. And because of the competing application you delved into the background of complaints of the station and the foundation, is that correct?

Mr. Cox. That is correct.

Senator GURNEY. What did you find?

Mr. Cox.We found in the case of KPFA, in the period since its last renewal which was February 28 of this year, there were five complaints in some 6 months.

Senator GURNEY. What kind of complaints were these?

Mr. Cox. This started in December. This went back for a year, actually, because included in the complaints was December of 1968.

One of these was a complaint that the station had played a recording in which a Black Panther Party member had allegedly used obscene language. One was very vague. Well, no, it had one specific word listed.

Another was a poetry reading that was alleged to be full of filth and four-letter words.

Another one simply said "vile obscenity" without saying what it was. Another said "statements that left nothing to the imagination." Senator PASTORE. Let alone the number of complaints that you receive. Because some people write and some people do not write. Did you do any monitoring of this station after receiving these complaints of obscenity? Did you do any monitoring at all?

Mr. Cox. Not in this instance. I am not sure whether we have ever monitored the station.

Senator PASTORE. Can anyone on the Commission speak out on this? Was there any monitoring done to discover if any violations were committed?

Mr. ROBERT E. LEE. Not to my knowledge. One individual complaining on this poem under discussion sent in a tape, I believe, which we have of the particular program.

When Commissioner Cox says four or five complaints, these are different subject matters. Every time you get one of these poems, you get complaints I would say in the hundreds on the particular poem. Senator GURNEY. Then each incident he is talking about would have many score or many hundreds of calls in complaining about it?

Mr. ROBERT E. LEE. I don't know whether you should characterize it as hundreds.

Mr. Cox. I think there may have been a substantial number of complaints about this one because the poem was given substantial publicityin the printed form.

Senator GURNEY. How many?

Mr. Cox. I don't know.

Senator GURNEY. Did you try to find out?

Mr. Cox. They would have come in since our action. I have nothing before me now on which the Commission is required to act with respect to Pacifica.

Senator GURNEY. Apparently you were investigating these things. Mr. Cox. Not at my instance. Someone on the Commission wished to have the information. I am giving you the information that the staff furnished us at the request of someone else. They said there were ninecomplaints in 1968 on KPFK; there were 23 in 3 years.

Senator GURNEY. What kind of complaints were those?

Mr. Cox. I would be happy to furnish you a copy of the memo-randum.

Senator GURNEY. Tell us about them; tell us what they are all about.. Senator PASTORE. There is no need to get excited, Mr. Cox; it is a legitimate question. You can answer it.

Mr. Cox. As to KPFK, the complaints were: On July 11, 1968, ma

terial allegedly broadcast was "God damn it, Jesus Christ and others I don't care to mention."

Senator GURNEY. Was that "in the public interest" would you say? Mr. Cox. I think I would have to know what the context was. I am quite sure, in certain discussions of controversial issues, that unless you are going to bleep out the words when they occur-I think it would be rather obvious to everyone what was said nonetheless. This is what the networks do with late-at-night entertainment television. I think any discerning viewer can determine what was said, but it seems to fit somebody's idea of propriety

Senator GURNEY. What time of day was this?

Mr. Cox. I don't know, because the information supplied doesn't specify time of day.

Senator GURNEY. Didn't you inquire? I should think the Commission would be interested in finding out.

Mr. Cox. No, I didn't inquire in this instance.

Senator GURNEY. Did anyone on the Commission inquire? I would think with this detailed number of complaints here and a station up for licensing here in Washington, one in Houston, as I understand it, four renewals here last year-isn't that right, one in New York and three in California?

Mr. Cox. Yes.

Senator GURNEY. Wouldn't you be interested in some of these things?

Mr. Cox. The Commission considered these at that time. The Commission considered its past experience with Pacifica.

Senator GURNEY. You don't know what time it was aired. You can shed very little light.

Mr. Cox. My recollection is, when we reviewed the California license in June or February of this year, that we did have that information before us. I do not have that memorandum with me. I will be glad to get it for you if you would like.

Senator GURNEY. Mr. Chairman, if we can get what information they have.

Senator PASTORE. Will you furnish it for the record.

Mr. Cox. All right.

(The information referred to is as follows:)

Hon. JOHN O. PASTORE,

FEDERAL COMMUNICATIONS COMMISSION,
Washington, D.C., December 23, 1969.

Chairman, Subcommittee on Communications, Committee on Commerce, U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: I am enclosing the information requested during the hearing on December 1, 1969, together with certain other materials which I think are relevant to the important matter under consideration at that time. The attachments included are as follows:

(1) Memorandum submitted to the Commission by the Chief of the Broadcast Bureau for consideration at its meeting on February 26, 1969-This analyzed complaints against Pacifica's stations in California (KPFA, KPFB, and KPFK) from March 22, 1967, to the date of the Memorandum and recommended grant of their renewal applications. During this period of approximately 23 months the Commission apparently received 6 complaints against KPFA and KPFB (which simulcast the same programming) and 21-plus one press item-against

33-229-70-—pt. 2—

KPFK. Eleven of the complaints and the press item seem to have involved, at least in part, claims that the stations had broadcast obscene, filthy, profane, or four letter words. The Commission also received 14 letters commending KPFAKPFB and 7 commending KPFK.

(2) Memorandum dated June 12, 1969, submitted to the Commission by the Chief of the Broadcast Bureau-This lists the "obscenity-profanity complaints received against Pacifica stations (1) during the past year and (2) during the current license period of each station." The tabulation indicates that for the 33 months since WBAI's last renewal, 24 complaints against that station had been received (some duplicates); that for the 12 months preceding, 8 complaints and one trade press item were received with respect to KPFK; and that for the 12 months preceding, 5 complaints against KPFA-KPFB were received. In only two instances were more than one complaint received as to a particular incident— in each case, the total number of complaints was two. Overall, this works out to one complaint about every month and a half.

(3) Memorandum dated December 3, 1969 to the Chief of the Complaints and Compliance Division from one of his staff members-This document, prepared at my request, simply reflects a count of "complaints of obscene, vulgar or indecent programming received by the Commission during the first three months of 1969 against CBS and NBC." The study was restricted to this period because of limitations of time and staff. It shows a total of 147 complaints in three months-though it must be recognized, of course, that these complaints come from all over the country and go to the carriage of network programming by over 200 local stations. I do not mean to suggest that these complaints involved the same kind of language which listeners to the Pacifica stations have found offensive, but this would seem to demonstrate that even the commercial networks present programming which offends some of their viewers. Nor do I, certainly, mean to suggest that there was anything which the Commission could, or should, have done about these complaints other than to explain the limitations on our authority and suggest that the complainants make their views known to the networks and stations involved.

(4) KPFK's "Program Notes" for September, 1969-I think this clearly demonstrates, as I suggested during my testimony, that the station presents an extensive and serious broadcast service, with heavy emphasis on cultural-educational-discussion programming.

(5) "Proposed Sample Program Week" submitted by Pacifica in connection with its application (BPED-989) for a construction permit for a new noncommercial educational FM station in Houston, Texas-This item indicates that Pacifica proposes a very similar cultural-educational-discussion service for Houston.

(6) Section 73.503 of the Commission's Rules-This specifies the licensing requirements which an applicant for a noncommercial educational FM station must meet and the service it is required to perform. It indicates that public and private educational organizations can qualify and may transmit programs directed to specific schools for use in connection with regular courses. However, the basic qualification is that the applicant must be "a nonprofit educational organization," and it is required to show "that the station will be used for the advancement of an educational program." The rule specifically states that such a station "may transmit educational, cultural, and entertainment programs to the public" and that "[e]ach station shall furnish a non-profit and noncommercial broadcast service." Pacifica has repeatedly been found to qualify as a nonprofit educational organization under this rule with respect to KPFB (since 1953) and KPFK (since 1958)-though an issue has been raised in connection with its application for Washington, D.C., which has been designated for hearing with a competing application. Indeed, when Pacifica sought a second station in the Berkeley, California, area in order to fill in a gap in its coverage, the Commission itself suggested (9 R.R. 907) that the Foundation could perhaps qualify for an educational FM channel. Pacifica thereupon applied for such a reserved channel, leading to the authorization of KPFB. It is clear that the Pacifica stations provide a service that is much more broadly educational than many, if not most, noncommercial educational FM stations licensed to educational institutions, since the latter often present programming which differs very little from a Top 40 commercial station-except for the omission of commercials. In many cases, the only aspect of the station's operation which has educational overtones is that the facility is used to train students in broadcast techniques.

(7) FCC Form 342, Application for Renewal of Noncommercial Educational