Federal Communications Commission, et al v. Fox Television Stations, Inc., et al. 

Interestingly, former FCC Chairman Michael Powell, who championed the enforcement of fines on broadcasters who aired fleeting expletives unbleeped, commented that he wouldn’t be so quick to discipline networks in today’s environment.  From Bloomberg.com:

…[T]he FCC said in 2004 that it would begin punishing broadcasters for fleeting expletives — one-time utterances on live shows.

Powell said in an interview this week that he now regrets that vote, saying, “if I were voting again, I would have dissented.” He also questioned the logic behind singling out broadcasters for scrutiny at a time when cable and satellite television reach at least 85 percent of American homes.

“I’ve always been deeply troubled by the way the First Amendment changes when you change channels,” said Powell, now president of the National Cable & Telecommunications Association in Washington, which represents Fox Networks Group along with cable operators.

The Supreme Court case concerns incidents at the Billboard Music Awards, shown on Fox. At the 2002 show, Cher referred to critics of her work by saying, “F— ‘em. I still have a job and they don’t.” A year later, Richie said, “Have you ever tried to get cow s— out of a Prada purse? It’s not so f—ing simple.”

The FCC concluded that the broadcasts violated its indecency regulations, though the agency stopped short of imposing fines. Federal law lets the FCC levy a $325,000 fine on each station that airs indecent material between 6 a.m. and 10 p.m.

The case will also look at a scene involving brief nudity on a 2003 episode of “NYPD Blue.”

(Sidenote: Howard Stern famously challenged Michael Powell [link opens MP3 file] regarding his indecency rulings and fines on KGO’s “The Ron Owens Show.”  Although a bulk of the conversation concerns Stern’s questioning of Powell’s political credentials, it’s still an interesting listen on indecency enforcement nearly 8 years later, whether you’re pro- or anti-Stern.)

Of course, the upcoming ruling will also affect radio broadcasters, who are under essentially the same indecency guidelines as their television counterparts.  The Obama administration has stated in court that broadcasters should present a “relatively safe medium for…children.”  One hopes, however, that while this case looks at off-the-cuff profanity, the FCC will begin to move closer to specific guidelines so broadcasters can be certain what is, in fact, deemed indecent and what isn’t.

As stated in the Bloomberg article, a federal appeals court stated that the FCC indecency rulings were too inconsistent, and that broadcasters “are left to guess” what will be enforced by the FCC and what will pass without a fight.  Incidentally, this is the same issue that plagued the UK’s Ofcom, who announced in October 2011 that they “intend to publish guidance by the end of the year to clarify the rules in the broadcasting code.”  As far as I can tell, this year-end deadline has come and gone without further explanation of said rules.

As we being another all-important election year, I’m hopeful these cases will be addressed in a timely, yet through, fashion.  Then again, we’re still talking Cher saying the f-word, once, on live television almost ten years ago, so I’m not holding my breath.

Relative stability

The Ofcom report concludes that average (or mean) community radio income (2011/10) is down by 19 percent. In 2010/09 it dropped by six percent. In 2008/7 it declined by 12 percent. The mean income of UK community outlets clocked in at about £63,000 in 2011/10.

But the numbers don’t look so bad for the UK’s more stable community signals. The survey is based on annual and financial reports from 163 stations. The Ofcom report notes that the average income for stations that have offered reports over the last two years (2010/11 and 2010/9) has dropped by only five percent, from £74,500 in 2009/10 to £70,500 in 2010/11.

“This may indicate that the financial situation for those stations that have submitted annual reports for the last two financial periods has remained relatively stable,” Ofcom notes.

In addition, four stations each earned over £250,000 during 2010/11—a total of £1.5 million. This “equates roughly to the total income of the 74 lowest income stations.”

Targeting an interest

Perhaps the most important part of the study is its observation on which kinds of community stations generate the most income:

Stations targeting a community of interest (rather than a geographic community) reported a higher income than the sector average. Stations serving a general audience in an urban area reported a higher average income than town/rural stations (£89,500 as opposed to £45,000).

The “sector average” reference means the community radio sector, as opposed to commercial or BBC stations. No shock that urban stations do better than town/rural stations. As the table below indicates, most UK community radio stations serve general “town/rural” or “urban” audiences. A significant number serve a “minority ethnic group.”

Others broadcast to “young people,” “older people,” or cite their mission as serving the arts, people with disabilities, LBGT listeners, or lovers of a particular kind of music.

For example: Raidió Fáilte, is described in the report as “the only station in Belfast providing broadcasting services in Irish to the Irish language community in the city and to those interested in the Irish language and culture. Raidió Fáilte continues to provide good quality Irish language broadcasting including speech based and music based programmes produced for and by the Irish language community 24 hours per day.”

Community of interest income has “remained stable,” the report notes, as opposed to stations serving a geographic audience in a town or rural region. Those outlets sustained an income expenditure drop of around £10,000. This report table below indicates the kinds of income upon which UK community radio stations draw.

SLAs mean “service level agreements”—typically made between the station and say, a town, city or village council. “SLAs allow community radio stations to engage with relevant statutory organisations for the delivery of output of social benefit, in return for funding.”

All this tentatively supports a suspicion that I’ve always had about community radio stations in the United States and Canada—those that try to be everything to all listeners (often vaguely defined as “the community”) don’t do as well as those that target specific audiences. But I’m still not sure.

The new crackdown from the government-approved (although not government-run) Office of Communications specifically targets radio broadcasters.  It comes on the heels of revamped television guidelines published in September 2011, after numerous complaints of performances on the UK version of The X Factor.

According to The Guardian, Ofcom recently began policing the radio airwaves after a Black Eyes Peas concert broadcast live on BBC Radio 1 featured multiple utterances of the f-word, which is banned outside the UK’s watershed (or in US terms, “Safe Harbor”) time frame.  They also listened to an appeal on a violation from a much smaller broadcaster, Scotland’s Brick FM:

Among recent examples of breaches of these rules was the airing by Scottish community radio station Brick FM of the song More Punany by reggae artist Dr Evil at 3pm. It contained the lyrics “last night I had a crazy threesome” and “I like to see the girls in the sexy bikini ni ni/Want to take my chilli and push it between ni ni”, as well as “I like pun-na-na-na-ni even if it’s a virgin”.  

The broadcaster claimed that “punany” referred to a sandwich – a panini, a claim that was roundly dismissed by the regulator, which said it was slang for a woman’s genitalia.

Right.

In the United States, content broadcast between 10pm – 6am falls under the so-called Safe Harbor period.  Although still fairly conservative compared to other countries’ guidelines, Safe Harbor allows broadcasters to air content that would normally be considered indecent. (Content considered obscene is never allowed to be broadcast.)  Ironically enough, Safe Harbor was first instituted in the US after New York station WBAI broadcast a version of George Carlin’s infamous “Seven Dirty Words” routine.  Following a complaint from a listener, and a series of appeals from both the station and the FCC, the Supreme Court eventually ruled in favor of the FCC, due to the fact that the broadcast came during a time when children could have been, and according to the complainant, were, listening. But it also instructed the FCC to allow indecent material to be broadcast during a time when children are not likely to be listening; this time frame was decided to be 10pm – 6am.  This isn’t an uncommon practice as dozens of counties have their own watershed time frames; it’s interesting to see how the watershed designation varies greatly from country to country.

Regarding the new regulation of radio broadcasts, Ofcom stated:

“[We take our role] in protecting children from offensive language on the radio very seriously. We are concerned that there have been a number of recent cases where offensive language was broadcast, some at times when children were particularly likely to have been listening…[w]e intend to publish guidance by the end of the year to clarify the rules in the broadcasting code.”

Even with the designation of Safe Harbor in the late 70’s, the FCC has never clarified what exactly can and cannot be broadcast over terrestrial radio between 6am and 10pm.  So if Ofcom successfully publishes a complete report to clarify broadcast regulations across the entire United Kingdom, I would a) be completely surprised that a government organization would be able to create invariable rules regarding content and context before the end of 2011 and b) frankly, I’d applaud their efforts.  In the US, CBS and the FCC are still bickering over a fine because of Janet Jackson’s breast nearly eight years after the split-second “wardrobe malfunction” took place.  The main reason for the continued volley of the “nipplegate” case is, as reported in the Bloomberg article linked to above, because the FCC’s definition of indecency has always been, and continues to be, pretty gray:

The U.S. Court of Appeals in Philadelphia ruled in 2008 that the fine should be voided because the U.S. Federal Communications Commission’s policy on indecency in broadcasting was arbitrary. The U.S. Supreme Court asked the panel to review its opinion after a ruling in a case involving News Corp. (NWSA)’s Fox Television revived the issue.  

I’m skeptical that Ofcom could create specific regulations that would be accepted by both large- and small-market stations, and especially skeptical that they can complete this mission within the next two months.  However, I’m curious to see the language they identify as indecent, and the fines associated with each offense.

even if we did advertise the frequency for use within the U.K., either at a local or national level, there can be no guarantee that Radio Caroline would win the license.

I don’t know if there is a statute in the UK preventing former pirates from having station licenses. In the US former unlicensed broadcasters are prohibited from having LPFM licenses. However, they are not necessarily prevented from having full-power FM licenses. Ostensibly having been busted by the FCC for broadcasting without a license might make someone unfit for a licensed station under the so-called “character clause.” However there is precedent for former pirates later obtaining broadcast licenses.

Currently Radio Caroline is broadcasting online. As part of its anniversary celebration the station is advertising an on-air birthday bash broadcasting from the ship Ross Revenge April 22 through May 2. The broadcast apparently will be on 531 KHz AM in south Essex and north Kent, though it’s not clear if that is a licensed or unlicensed signal.

I sometimes think it’s ironic when US pirate stations try for licenses, but in Radio Caroline’s case I don’t think it’s ironic at all. UK pirates helped to break the BBC’s stranglehold on the airwaves, paving the way for non-government broadcasting. A private radio license wasn’t even available when Caroline was on the air. So, in a way it’s only fitting that Radio Caroline be able to eventually enjoy the result of it’s labor 47 years ago.

source: kitschulike.com

Ofcom (the United Kingdom’s equivalent of the FCC) has just published a new survey of which words British radio listeners and TV watchers don’t like, or sort of don’t like, or really object to, depending on the circumstances.

The most important circumstance is whether the word was said pre- or post-”watershed”—post being the equivalent of our “safe harbor” period in the United States for “indecent” or, as British broadcasting code classifies it, “offensive” language.

Our’s is 10 p.m. to 6 a.m. Their’s is 9 p.m. to 5:30 a.m. Those are the hours when, here in the U.S., you can say those seven dirty words that George Carlin so famously used in 1972.

Guess they go to bed a little earlier than we do. If you don’t like reading nasty words, please click away from this page, NOW. Otherwise, here goes.

When it came to “strong language”:

“most participants found the words ‘cunt’, ‘fuck’, ‘motherfucker’, ‘pussy’, ‘cock’ and ‘twat’ unacceptable pre-watershed and also wanted care to be taken over the use of the words ‘bitch’, ‘bastard’, ‘bugger’, ‘dick’, ‘wanker’, ‘shag’, ‘slag’ and ‘shit’. Post-watershed, ‘cunt’ and ‘motherfucker’ were considered the least acceptable words discussed in the research. There were mixed views on the use of the word ‘fuck’ which was considered more acceptable by some participants (e.g. younger people and male participants) but less acceptable by others (e.g. participants aged 55-75). Most participants also wanted some care to be taken over the use of the word ‘pussy’ post-watershed. The other words listed were seen to be acceptable postwatershed by most participants.”

When it came to “discriminatory language”:

“‘nigger’ and ‘Paki’ were seen as the most offensive words. Some participants thought it was acceptable to use them in some specific contexts (e.g. for educational use), whereas some thought they should not be used on television or radio in any context. The word ‘spastic’ was also generally considered unacceptable. Some discriminatory language polarised responses, particularly ‘retarded’, ‘gyppo’, ‘pikey’, ‘gay’ and ‘cripple’ as participants’ familiarity with and interpretation of, these words varied greatly, both within the general UK sample, and between the general UK sample and the minority groups.”

“Pikey”? I had no idea of the existence of some of these words, and I pride myself on being a foul mouthed person. Other naughty nouns queried included “Arse, Bollocks, Chick-with-dick, Fenian, Hun, Gender-Bender, Nutter, Schizo, Retard/retarded, Spastic/Spakka/Spaz, and Wanker.”

A good deal of the research appears to have focused on attitudes towards potentially homophobic language. The survey was done via a series of group discussions with a broad range of British radio and TV consumers.

Lynn Parsons of Smooth Radio London

It will be interesting to see what Ofcom, the United Kingdom’s broadcast regulatory agency, says about GMG Radio, aka “Smooth Radio” of London and North West’s request to pare down its jazz format. Here’s the gist of the request for the stations (I’ve added the bold):

“Current Character of Service

AN EASY LISTENING STATION FEATURING EASY LISTENING MUSIC INCLUDING JAZZ, SOUL, BLUES AND R&B TARGETING A NORTH-WEST AUDIENCE AGED 50-PLUS, AND BROADCASTING 45 HOURS A WEEK OF SPECIALIST JAZZ PROGRAMMES

Proposed Character of Service

AN EASY LISTENING STATION FEATURING EASY LISTENING MUSIC AND LIFESTYLE ORIENTED SPEECH, TARGETING A NORTH WEST AUDIENCE AGED 50-PLUS, AND BROADCASTING 12 HOURS A WEEK OF SPECIALIST MUSIC PROGRAMMES“

As you can see, it’s those “specialist jazz programmes” that GMG wants to retrench, scheduling what’s left before midnight and during weekend afternoons.

In the United States radio stations can change their formats at will with no comment from our Federal Communications Commission. Some listeners might get angry, but most managements just white knuckle the complaints and move on. In the UK though it’s a whole different story. Stations have to publish their format shifting proposals and the public gets to weigh in before Ofcom makes its call.

Here’s GMG’s explanation for the change: “The necessity to provide 45 hours of jazz related music within these two station schedules, though no longer an expectation or a requirement for the vast majority of listeners[,]” the license owner writes, “nevertheless has had to stay because of the current format and character of service which we believe is now out of date, unnecessary and adheres more to the previous heritage of the licence rather than current listener requirements.”

“We do not believe that the current enforced jazz music requirement is now inline with audience expectation nor is there appreciation of this music genre within the overall easy listening format of Smooth Radio,” GMG adds. “Therefore the removal of the requirement for 45 hours of specialist jazz programming will not substantially alter its current appeal to the audience it predominantly serves. In addition it is a fact that 24-hour Jazz related music can now be easily found on DAB in London, nationally on DTV, online and on other listening platforms via Jazz FM which according to RAJAR now attracts nearly half a million listeners across the UK each week.”

From rummaging around what looks like the London stations playlist, I’m not getting much a jazz emphasis anyway (of course, it all depends what you call “smooth jazz”):

• Wet Wet Wet – Love Is All Around
• Paolo Nutini – Candy
• Wilson Pickett – In The Midnight Hour
• Champaign – How ’bout Us
• Eagles – Lying Eyes
• Odyssey – If You’re Looking for the Way Out
• Neil Diamond, Song Sung Blue
• Michael Jackson, Got To Be There
• Boris Gardiner – I Want To Wake Up With You
• Fyfe Dangerfield – She’s Always A Woman
• Genesis – Throwing It All Away
• Jimmy Ruffin – What Becomes Of The Brokenhearted

I am enjoying the deejays, though. If you’re a UK person in the relevant area, you can give Ofcom feedback here. The “consultation,” as they call it over there, ends on June 25.

“Changes in the advertising market, greater competition for audiences’ attention and technological developments mean that the radio industry is facing significant challenges and is having to change,” the UK’s regulatory agency Ofcom declared this week.  “So the way it is regulated also needs to adapt.”

Among other provisions, Ofcom will allow FM stations to “co-locate and share” their programming.  “This will allow the stations to merge to form larger, more financially viable stations.” And: “Stations may request to reduce the number of locally made programme hours from 10 a day to 7 a day, if they commit to providing local news bulletins throughout weekday daytime.”

Nick Clegg of the UK's Liberal Democrats

The move was authorized by the UK’s controversial Digital Economy Bill, and goes into effect in June, unless the UK’s Liberal Democratic Party wins enough seats in the upcoming election to repeal the law.

As far as I can tell, even with these provisions UK commercial stations will still be much more locally oriented than their equivalents in the United States. But it’s the thought that counts. The cross Atlantic assumption seems to be that local broadcasting is an intolerable burden on commercial radio.

Here in the San Francisco Bay area, there are some commercial radio stations that, with the implicit approval of our Federal Communications Commission, offer almost no local coverage at all. For example, I’ve logged in many hours listening to Channel 92.3 FM, the Bay Area’s self-proclaimed alternative rock station, which supposedly loves indie rock so much that it almost never identifies the names of the songs. As for the Bay Area local scene, I rarely hear a live someone say anything substantial on the station, much less offer day time coverage of the region’s doings.

So the question is when we’re going to have a serious discussion not about how to relieve commercial radio stations of having anything to do with their immediate environment, but how to create the system of incentives and requirements that make local broadcasting on all platforms more viable.

The new signal “aims to unite young people from different backgrounds and give them a platform to air their views and promote understanding, tolerance and respect,” UK regulator Ofcom’s summary of the signal says.

You can stream SAFE, which I’m doing as I write this story. It’s a just a few minutes before 6 PM over there and I’m getting a nice pop sound with lots of fun back-and-forth between the various deejays. Interspersed between the discussions and tunes are PSAs about where to get help with domestic violence problems and similar issues. The signal is sponsored by a variety of youth oriented web sites, among them connexions direct and the UK Child Exploitation and Online Protection Centre.

The station’s presenters are a mostly young and diverse mix of people. Right now Mick “Smashy” Mcgrane and Keith Kelsey are running the mic, and they’re having an argument about how many Facebook friends they can name from memory.

“Stop looking at your screen!” one is shouting at the other.

“Shut up!” the other is laughing.

“You can’t do it even though you’re looking at the screen!” the first retorts.

There are about 24 other “presenters” at SAFE. The station also offers DJ training, giving students “the foundation necessary to create their own enterprise, (a radio station) within the school, as well as becoming either presenters or back room staff on it.”

Sounds like a great beginning, so hello to SAFE radio from Radio Survivor . . . and  good luck with your project!

Ofcom's latest poll on how Britons get their weather news

The latest poll taken by the United Kingdom’s Office of Communications (Ofcom) indicates that almost as many Britons get their updates about weather and travel conditions from websites as from TV and radio. 43 percent identify the web as their favorite source in response to the question: “How have you been getting your weather/travel information during the  recent snow.”

Meanwhile 26% percent clicked “National TV/radio” while 19% clicked “Local radio.” So it’s 43% web versus 45% radio and TV.

Makes sense, of course. You get a lot more detail and data from one of those local traffic/weather sites than you do from the occasional radio update. Still I like listening to the latter more than I do looking at the former.

The Ofcom poll is obviously directed towards the moment, with heavy weather warnings in London, Wales, the West Midlands, and southern England. 50 schools in Gloucestershire closed on Wednesday.

The rest of the  respondents say they get their weather intel from smart phone apps (7%), Twitter (4%), and phone information lines (1%).

For you Radio Survivor readers here in the  United States, nota bene: they do things very differently over there in the  U.K., broadcast regulation-wise, so hold onto your hats.

Pick up the phone

In October of 2009, a West Midlands area radio listener heard the following on Radio XL.

“Traffic control updates for you in about three to four minutes’ time. Time to squeeze in a little song. Just before that, I’ve got to tell you something and this is dedicated to you. In fact it’s special attention to everybody, especially if you’re a solicitor, if you’re an accountants, travel agents and all those that need office space. Now, office space now available in a prime location on the main high street in West Bromwich. The premises are opposite the subway and have car parking to the rear. Over eighteen hundred square feet of office space is available, and great premises with competitive rates at a highly sought after location there. If you want any enquiries on there, if you do need office space, why not pick up the phone and call either David on 0121… [repeats name and number] or Richard on 0121… [repeats number] and they can help you out with that, if you need any office space – got loads available over in West Bromwich.”

The listener complained, charging that the “presenter” was “blatantly plugging office space/rooms for letting … ” and that was “disruptive in [Radio XL’s] usual programming.” Plus “it wasn’t even a sponsorship or an advert … it was the presenter announcing it.”

So Ofcom looked into the case, and asked Radio XL for a response.  The station’s management acknowledged that “in this passage the presenter [was] clearly doing a paid for live read,” with “no attempt to disguise this as normal programming.” But that was ok, XL claimed because the broadcaster had made no effort “to disguise [the] material as normal programming.” In hindsight, however, it might have been better “to separate the live read from the programming with a jingle,” XL conceded.

True that, responded Ofcom. “Presenters may read advertisements (live or recorded) but broadcasters should ensure that the distinction between advertising and programming is not blurred and that listeners are not confused between them,” its decision concluded. “It is therefore advisable for presenter-read advertisements to be separated from programming by, for example, a jingle or station ident, or by scheduling them in the middle of a commercial break.”

Travel bureau

Plus, Ofcom did some of its own listening to XL, and found that it also was in violation of rules that sponsor credits can’t sound too much like advertisements, as did a traffic agency plug: “For special rates to India, Pakistan, USA, Canada, Kenya, Dar-es-Salaam, Kilimanjaro and Dubai, call Southall Travel, twenty-four hours a day, seven days a week on 0121… [repeats number].” But the decision does not disclose what kind of punishment or fine Radio XL can expect as a result of these “breaches,” as Ofcom calls them.

One thing’s for sure, it’s a very different world over there than it is here in the U.S. Our Federal Communications Commission doesn’t regulate commercial radio advertising. The FCC does have some mild rules for public radio “enhanced underwriting” spots. And the agency enforces the Childrens Television Act’s strictures against excessive commerciality on kids TV.

But that’s about it. Here in ‘Merica you can “blur” to your hearts’ content, God bless.