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TV, FM, or Standard Broadcast Station License-This indicates, in Section IV, that such stations may quite properly present programs in the following categories: Instructional, general educational, performing arts, public affairs, and light entertainment. Indeed, an additional category, "Other", is provided for programming not falling within the above classifications, with the indication that news and sports should be reported as "Other" programming.

(8) The Commission's opinon "In re Applications of Pacifica Foundation" dated January 22, 1964 (FCC 64-43)—This decision considered an accumulation of complaints about the programming of all the Pacifica stations, concluding that they posed no bar to grant of the pending applications. See, particularly, Paragraph 5, in which the Commission held that those who were offended by certain matter broadcast by the stations were not entitled to rule such programming off the air.

(9) The Commission's letter of March 26, 1969, to Mr. Dan Sanders (FCC 69-302)-This dealt with a large number of complaints arising from the broadcast of an anti-Semitic poem. The Commission held that it could only consider whether the station had complied with the Fairness Doctrine, and found that it had done so.

(10) Letter dated October 22, 1969, from William L. Sessions, Chief Government Operations Section, Criminal Division, Department of Justice, to Henry Geller, the Commission's General Counsel-This is the letter, referred to in my testimony, which advised us that broadcast of "Jehovah's Child" would not warrant criminal prosecution.

(11) Decision of the United States Court of Appeals for the First Circuit in Keefe v. Geanakos, issued November 12, 1969-This involves a somewhat similar situation attempted discharge of a teacher for using material containing offensive language in a class for high school seniors-but without the broadcast element in this case. It holds that the attempted regulation of speech "demeans any proper concept of education."

In addition to supplying these materials for the record,1 I would like to restate the essence of my position on the matter at issue here, in an effort to be more precise than was possible during the colloquy with the Committee.

First, I believe that it is necessary to focus on the applicability of 18 U.S.C. 1464 to KPFK's broadcast involving the poem, "Jehovah's Child." Congress has specified that the Commission should take cognizance of this standard. See Sections 312 (a) (6) and 503(b) (1) (E) of the Communications Act, 47 U.S.C. 312 (a) (6), 503 (b) (1) (E).

Second, I believe that the Commission should look to the available Court precedents in ascertaining the standards to be considered in applying 18 U.S.C. 1464. Thus, I think it clear that the test "patently offensive by contemporary community standards" is applicable in the broadcast setting. See Memoirs v. Massachusetts, 383 U.S. 413, 418 (1965); Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962). I believe that the asserted "redeeming social value" of the material must also be taken into account. Memoirs v. Massachusetts, supra. Finally, while a different test may be applicable to "indecent" material, the courts have already applied the standard whether the "dominant theme of the material taken as a whole appeals to a prurient interest in sex" (ibid.) to the specific issue of radio obscenity. See Gagliardo v. U.S. 366 F. 2d 720, 725 (C.A. 9, 1966) ; cf. U.S. v. Limehouse, 285 U.S. 424 (1932).

I want to emphasize that while the above standards are applicable to radio, their application there must taken into account the different nature of the medium. See Burstyn v. Wilson, 343 U.S. 495, 503 (1951). Unlike a book which requires the deliberate act of purchasing and reading (or a motion picture where admission to a public exhibition must be actively sought), broadcasting is disseminated generally to the public (Section 3(0) of the Communications Act, 47 U.S.C. 153 (0)) under circumstances where reception requires no activity of this nature. Thus, radio comes directly into the home, frequently without any advance warning of its content. And finally, it must be noted that very large number of young people are included in the overall radio audience.

1 The attachments referred to were received and have been placed in the Committee's files.

AVERAGE 44-HOUR RADIO AUDIENCE OF TEEN-AGERS (12 TO 17) YEARS AS A PERCENTAGE OF ALL TEEN-AGERS IN METRO AREA, 1969

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I believe, therefore, that the pertinent standards apply differently in the case of the broadcast medium. For example, while "Lady Chatterly's Lover” has been adjudged not obscene as a book, a graphic depiction of the sex scenes described in the book on a television program would, in my judgment, constitute a violation of 18 U.S.C. 1464. Thus the broadcast of certain current movies over television may present problems not involved in the strictly aural radio media.

In the case of the broadcast involving reading and discussion of "Jehovah's Child," I fully agree with the conclusion of the Department of Justice that no violation of 18 U.S.C. 1464 is involved. It is undisputed that a local controversy arose over the discharge of the two Los Angeles teachers who had used the poem in their classes; indeed, many Valley College teachers, the American Civil Liberties Union, and the American Federation of Teachers supported the teachers' actions on the specific ground of academic freedom. Pacifica chose to treat this local issue in a program presented at 10: 30 p.m. and involving a serious discussion of the matter by three eminent local professors. To make the discussion intelligible, it decided to present the poem, just as Commissioner Robert E. Lee quoted it in full in order to make his dissent intelligible. But Pacifica acted responsibly by prefacing its presentation of the poem with a warning that "some may find the language blasphemous or obscene"; that such people "should turn your radio off for the next five or six minutes" or "ask your children to leave the room."

In my opinion there is clearly no violation of 18 U.S.C. 1464 in such circumstances. Whether the program-i.e. consideration of the issue-should have been presented is not, I believe, a proper matter for government determination or regulation. The government cannot intervene to say, "Yes, this issue may be covered" or "No, you may not discuss that issue." If the First Amendment does not mean that much, it means nothing in the field of broadcasing.

Finally, I would comment briefly on the suggestion that the Commission should ignore 18 U.S.C. 1464 and simply proceed under the "public interest, convenience, and necessity" standard of the Communications Act. I do not believe that the Commission can say that one program serves the public interest and may be presented, while another program does not and should not be presented. Not only would this run afoul of Section 326 (and the First Amendment), but also the Courts have indicated that the public interest standard is "too amorphous, without more," to support such supervision over programming. Banzhaf v. F.C.C., - U.S. App. D.C. 405 F. 2d 1082, 1096, n. 58, certiorari denied, 395 U.S. 973; cf. Hannegan v. Esquire, Inc., 327 U.S. 146 (1946). In short, I believe that as to an individual program, the standard is 18 U.S.C. 1464.

However, I would point out that where a station's operations revealed a pattern of presenting substantial quantities of "smut" programming, the Commission held that it could act under the public interest standard, Palmetto Broadcasting Co., 33 FCC 483; 34 FCC 101 (1963). In reaching this conclusion, the Commission significantly employed two standards; that the material was "patently offensive," taking into account community attitudes, and that the smut programming, which constituted over 25% of the station's broadcast day, was not shown in any way to serve the needs of the area (the redeeming social value test). On appeal, the station, supported by the American Civil Liberties Union, argued that the Commission could not constitutionally proceed under the public interest standard. The Court affirmed the Commission but on other grounds (i.e., misrepresentation by the licensee), stating that it was unnecessary to reach the constitutional issue involving the programming itself.

If another Palmetto case arose, I would follow this precedent, and thereby seek to obtain a definitive court ruling as to whether the Commission can validly proceed in that way. As shown by the enclosed material as to the programming broadcast by KPFK and that proposed for Houston (Attachments 4 and 5) Pacifica's operation is not even remotely to be compared with that involved in Palmetto.

Finally, I would like to quote from our 1964 decision on Pacifica's then pending lications (Attachment 8). The Commission said:

"We recognize that as shown by the complaints here, such provocative programming as here involved may offend some listeners. But this does not mean that those offended have the right, through the Commission's licensing power, to rule such programming off the air-waves. Were this the case, only the wholly inoffensive, the bland, could gain access to the radio microphone or TV camera. No such drastic curtailment can be countenanced under the Constitution, the Communications Act, or the Commission's policy, which has consistently sought to insure 'the maintenance of radio and television as a medium of freedom of speech and freedom of expression for the people of the Nation as a whole' (Editorializing Report, 13 FCC 1246, 1248). In saying this, we de not mean to indicate that those who have complained about the foregoing programs are in the wrong as to the worth of these programs and should listen to them. This is a matter solely for determination by the individual listeners. . ." (Pacifica Foundation, 36 FCC 147, 149).

I agreed with those statements then, and subscribe to them now.

I hope that the foregoing will be helpful to you and the other members of the Committee in considering this important matter.

Very truly yours,

KENNETH A. Cox.

Senator GURNEY. I am curious to know when this sort of filth is being aired on the air at various times and apparently fairly frequently why the Commission doesn't have more information about this, especially when there are license renewals involved and new licenses coming up, and we do have a statute which actually forbids uttering any obscenity, indecent, or profane language that Congress passed some years ago.

Mr. Cox. Yes, Senator, but the Department of Justice keeps informing us that these matters, when referred to them, are not prosecutable under that statute. If they are not prosecutable, they are not obscenity. They therefore do not violate the statutes, do not violate our rules, and cannot be the basis for adverse action.

Senator GURNEY. I understand from Commissioner Lee's testimony here just a minute ago that you have prosecuted many amateur broadcasters, fined them or put them off the air for this same sort of thing. Mr. Cox. I think the situation there is different. First of all we do not prosecute them for isolated instances.

Senator GURNEY. This certainly isn't an isolated instance. You have complaints there that go back for years.

Mr. Cox. The matter about which I thought you initially complained, Senator, was the reading of the poem, which was read once on a day in September.

Senator PASTORE. The whole gamut. I have a record here you are familiar with it has four-letter words that were used on a Pacifica Foundation station in Los Angeles. Th name of the record is "You Can't Beat People Up and Have Them Say I Love You," by Murray Roman. Four-letter words thrown in indiscriminately, and these complaints came to my committee, as well as your Commission.

You have a record down there where a complaint was made on this record and the justification was it was used at 3 o'clock in the morning. What difference does that make?

You keep using the argument that the public was told that they didn't have to listen to this if they didn't want to.

Now, after all, radio and the television belongs in every home in America. You may be driving along in your automobile with your family and you turn that on after the warning was given. You

know nothing about the warnings. There you are, you get caught on the reading of this poem, a filthy poem.

Mr. Cox. Then you turn it off.

Senator PASTORE. This idea just because they gave notice they are exonerated. That idea to me does not work. That may be all right when you go to a movie theater which says adults only. In that case everyone is warned before he goes in. You have the sign to read. When you turn on your radio, you don't know what you are going to hear. It all depends on what time you tune in.

Mr. Cox. I think in that instance you turn it off.

Senator PASTORE. After you have heard it you turn it off? A great service radio is going to be. After you are offended, then you turn it off.

Mr. Cox. Senator. I think if we tried to guarantee that no broadcast station in the United States would ever, at any time of the day, present matter which would offend anyone, we would have a medium so bland and so meaningless that it would hardly be worth fighting for.

I think that we are interested in a society which stresses free speech, in allowing simply what that means.

We have a system here of privately licensed, privately owned broadcast stations. It is based upon the Commission's selecting licensees and there leaving matters, essentially, in the first instance, to their good judgment. We review it. Basically, we review it on a 3-year overall performance basis. We have consistently held

Senator PASTORE. That used to be the rule, you mean?

Mr. Cox. That has been the rule ever since I have been concerned with it.

Senator PASTORE. Not since WHDH. That is why we are talking about S. 2004.

Senator GURNEY. Let's get back to this business between the Commission and the Justice Department. This does not impress me very much.

As I understand it, there are no Supreme Court decisions on broadcasting obscenity. Are there? There is no law in this matter, is there? Mr. Cox. I think there are only two cases involving broadcasting, in both of which they found the matter not obscene. I am not familiar with the details of the cases. These are circuit court cases, rather than Supreme Court cases.

Senator GURNEY. I'm talking about these issues we have before us, this obscene poem, and other instances like this. There is no authority at all in the body of the law that this is something that should be permitted?

Mr. Cox. I think it would be safe to assume that although the Supreme Court, in the Burstyn case and others, has recognized that you must treat all media somewhat differently because of their different situations, that presumptively we would start, at least, with the definition of obscenity used elsewhere. And that definition is one which requires the coalescing of three elements. These are that the dominant theme of the material taken as a whole appeals to a prurient interest

Senator GURNEY. Are you reading about a definition of obscenity as far as broadcasting is concerned?

Mr. Cox. No, this is just a definition of obscenity. It involved printed matter in this case.

Senator GURNEY. It doesn't have a thing to do with what we are discussing; isn't that right?

Mr. Cox. Senator, in my practice, I always used the nearest case I could find.

Senator GURNEY. I think the nearest case, if you will permit me to say, is the law that Congress passed, section 1462 of the Criminal Code, which says:

Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both.

That is the only body of law today which has anything to do with obscenity coming over the radio waves. I don't see how it will do any good to buckpass with the Justice Department, and this is what you have been doing there.

I should think you would take some initiative on your own and do something about this when licenses come up for renewal, and when new licenses are applied for, like Houston, and here in Washington, D.C. This is the only law we have.

Mr. Cox. I think, Senator

Senator GURNEY. Let me pose this question to you——

Mr. Cox. Could I answer that question?

Senator GURNEY. Yes, go ahead.

Mr. Cox. It seems to me we start with the language Congress used. The language is not perfectly clear as it applies to this situation. Senator GURNEY. What is unclear about it?

Mr. Cox. I think that the whole question of obscenity over the air is as unclear as the question of obscenity in any other medium is, and it is a matter which has been undergoing judicial changes over the

years.

Senator GURNEY. This is apparently your personal opinion, because there is no body of the law about this at all.

Mr. Cox. I am simply saying I would construe "obscene," as used in this statute, as the court has construed "obscene" in other situations, recognizing that there are some other differences; but unless I would find that they were compelling and required a different result here, I would comply with what the Supreme Court has used in the print media and motion picture cases.

Senator GURNEY. Recognizing that there is a tremendous difference, and as a Federal Communications Commissioner, I am surprised you don't see the difference, there is a great deal if you go in a book store and buy "Fanny Hill" of course, that's tame stuff now-or anything beyond that, you can make a choice, and you can do what you want to. But you can't do that as far as radio is concerned, when it comes to blasting in the living room possibly in front of young children.

That is why radio stations are licensed, as I understand it, among other things, so that you will have some determination, some regulation, on what is in the public interest.

Mr. Cox. I think that is one reason, although basically, of course, it was because of spectrum scarcity. I think, in considering matters of this kind, you have to look at the entire body of the law, and the entire body of the law, as interpreted by the Government's chief legal advisers

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