“Redskins” License Challenge at FCC Raises Novel Issues

“Redskins” License Challenge at FCC Raises Novel Issues
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WASHINGTON, D.C. (September 3, 2014):  The formal legal petition to the FCC, opposing the renewal of the broadcast license of Snyder-owned station WWXX-FM because of its on-air use of the “racial slur” “Redskins,” poses a number of novel legal challenges, and the manner in which they are presented may finally force the agency to address at least some of them, says public interest law professor John Banzhaf.

Redskins: FCC Raises Novel Issues

For example, the law governing FCC procedure may require the agency to at least set down for a hearing, and probably decide, issues like:

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  • do racial slurs such as “Redskins,” “N*gg*ers,” and other swear words constitute “profanity” which, by law, cannot be aired from 6:00 AM until after 10:00 PM to protect children;
  • do racial slurs such as “Redskins,” “N*gg*ers,” and other swear words also constitute “hate speech,” and, if so, can the indiscriminate use of “hate speech” by broadcasters possibly be consistent with their legal obligation – and a major condition for license renewal – to operate in the “public interest”;
  • does the broadcasting of racial epithets and swear words ever cause, contribute to, and/or exacerbate violence such as beatings, bullying, etc. and/or psychological harm including suicide  – something the FCC has been asked to look into by dozens of civil rights organizations especially concerned about the effect of broadcast media on extremist groups and unstable individuals;
  • do broadcast stations engage in legally prohibited “racial harassment” when they force employees to handle and even read on the air copy containing racial slurs – for example, if a station can require American Indian employees to read about and discuss a sports team, musical group, or other entity whose name includes the word “Redskins,” could it do the same with African American employees required to report about the “New York N*gg*ers” or the  “Washington W*tbacks”;
  • if, as the FCC has ruled, a one-second display of a woman’s nipple (e.g., the wardrobe malfunction incident) and the momentary use of profanity in a completely non-sexual context (e.g., Nicole Richie’s getting “sh*t out of a purse” isn’t “f*cking simple”) is so contrary to the public interest as to warrant a monetary fine and possible license revocation, why doesn’t the repeated and unnecessary use of a racial slur during prime time warrant a warning, or at least a raised eyebrow;
  • since, in the 1970’s, the FCC issued a threatening “policy statement” warning stations against playing songs which allegedly encouraged drug use – e.g. that a teen, after hearing Lucy in the Sky With Diamonds, would be moved to try LSD for the first time – based upon virtually no evidence, shouldn’t it similarly address the issue of racial slurs on the air by at least issuing a similar policy statement, if not indeed refusing to renew a license when the issue is directly raised in a legal pleading.

Redskins: Preliminary formal petition to deny renewal of WWXX-FM’s FCC Broadcast License

The document filed with the FCC on Tuesday, styled as a “Preliminary Formal Petition to Deny Renewal of WWXX-FM’s FCC Broadcast License Pursuant to 47 U.S.C.A. § 309(d),” requests that the agency refuse to renew this broadcast license to Dan Snyder on a number of grounds:

  • that the repeated and unnecessary use of a word held in many proceedings and by many organizations to be a “racial slur” is inconsistent with the station’s obligations to operate in the public interest;
  • that – as suggested by a former FCC chairman, two former FCC commissioners, and many other broadcasting law experts – broadcasting this “racial epithet” is akin to broadcasting “obscenity,”;
  • that it constitutes “profanity” which cannot be used during most of the broadcasting day;
  • that its use constitutes “hate speech” which causes harm to individuals; and that forcing employees to be exposed to and even use disparaging racial words constitutes “racial harassment.”

Redskins: Broadcast to cause harm to American Indians

The law requires the FCC to set such petitions down for hearings if there are any material and substantial issues of fact at issue. Since Banzhaf’s petition both alleges and includes dozens of studies showing that racial epithets – especially those directed at American Indians – cause harm, and any harm flowing from broadcasts would seem to be a very relevant factor in determining if a station is operating in the public interest, it appears that a hearing would have to be held on this issue alone, along with many others.

The Petition also requests, based upon a public suggestion by a former FCC Chairman, that the  FCC “should consider whether Mr. Snyder is fit to own radio station licenses given that he uses radio stations to broadcast an ethnic slur.”  Issues of character and fitness almost always require hearings, says Banzhaf, who is best known in the broadcasting world for FCC legal actions which forced stations to carry antismoking messages, for helping to bring an end to cigarette commercials, and for successfully pressuring TV stations to use African Americans as news reporters and in other significant on-air roles.

He also notes that virtually all license challenges hang over a station like a Sword of Damocles, impacting the station’s credit rating, its ability to be sold, to be transferred or to merge, its ability to attract talent, and even to enter into contracts.  “Who wants to take even a 5% chance that its FCC license – the most valuable asset any station possesses – will not be renewed, or even will be held up for years.”

Redskins: FCC might take years to renew license

One broadcasting law expert, quoted in the media, put it bluntly: “As long as WWXX license renewal application remains pending, however, it is vulnerable to an objection being filed against it. . . . the FCC will often take years to grant a license renewal application that has objections filed against it.   . . . Banzhaf is reportedly fairly adroit at manipulating the FCC’s process.”

This legal maneuver, which reportedly is only the first of many uses of broadcast law to come, could be especially important.  “Moral suasion – even coming from the President, half of the Senate, many members of the House, virtually every major Indian organizations, many major civil rights organizations, and a variety of governmental entities  – is not likely to change Snyder’s mind.  But economic pressure can.”

If Snyder and the NFL find that broadcasters are unwilling to use the team’s name on the air, it will be difficult if not impossible to continue to operate either entity as a profitable endeavor.  Thus this kind of economic pressure – not appeals to Snyder’s basic decency – may finally do the trick, says Banzhaf.

“I wonder how Snyder would feel if one of his children was forced, as part of his job at a radio or TV station, to read and write copy, and perhaps even read it on the air, about the Kansas Kikes or the Honolulu Hebes,” or just to hear announcers use those hateful words in front of their children”

Redskins: Growing amount of hate speech on air

Banzhaf also did not pull any punches in addressing the FCC. Noting that many civil rights organization have asked the FCC to look into and take action about the growing amount of hate speech on the air, and its likely impact on extremist organizations and susceptible individuals, Banzhaf told the agency:

“Needless to say, granting the license, especially without holding a hearing on any disputed issues of fact, will undoubtedly by interpreted by many – including organizations representing African Americans and Hispanics – as opening the door wide to all broadcasters across the country to freely and repeatedly use terms which are highly offensive slurs to blacks, Latinos, and others.”

Corporate Counsel, in reporting on Banzhaf’s FCC petition, just said: “Banzhaf is known in corporate circles for his persistence and his willingness to explore different types of legal avenues. He has used lawsuits, often drafted by his students, to fight Big Tobacco and to attack fat in fast food, winning concessions from McDonald’s and others.  He previously used FCC filings to force radio and television stations to run antismoking messages, to help ban cigarette commercials and to force D.C.-area TV stations to use black journalists as on-air reporters for the first time.”

Petition w/ Attachments = http://banzhaf.net/wwxxfax.pdf

Petition w/ Clickable Links but no attachments = http://banzhaf.net/Petition2.pdf

Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf

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