(By John Garziglia) A St. Louis radio personality, who calls himself the “Grim Reaper of Radio,” holds himself out on the KQQZ website as “The Kraziest Son of a Bitch you’ll ever hear on the radio….” This radio personality is alleged to routinely use the “n-word” and “various misogynistic and homophobic slurs,” according to an April 24, 2018 Radio Ink story. A Missouri state senator has called for the FCC’s revocation of the KQQZ license and a large fine. So, can the Grim Reaper’s Hot Talk radio content get the radio station’s license yanked?
Two weeks ago, members of Congress advocated for an FCC investigation based upon the licensee-scripted content of a TV broadcaster’s news coverage and the promotion of that coverage. You might have seen the triggering event – the Sinclair “must-run” script mouthed nationwide by dozens of its news personalities. The FCC’s Chairman Pai responded by reminding those members of Congress that “the Commission under my leadership [will] not act in a manner that violates the First Amendment and stifles or penalizes free speech by electronic media, directly or indirectly.”
Admittedly, a homophobic/misogynistic radio personality who routinely uses the “n-word” in his commentary is far different than a TV broadcaster who compels arguably slanted news coverage. But, the First Amendment issue raised and the political reaction are similar in both cases. The First Amendment issue is to what extent does our Constitution protect broadcasters, and in particular, a broadcaster such as the Grim Reaper who states that he “is not politically correct or politically incorrect, he’s politically insane.” The political reaction is a call upon the FCC to revoke broadcast station licenses.
An attractive but flawed First Amendment analysis is to ask if there would be a similar call for governmental action if a newspaper carried identical homophobic/misogynistic racially offensive content. Inconveniently for politicians, the publishing of a newspaper does not require a government license so that sword is removed. But, broadcasters must obtain a renewal of the license to broadcast every eight years. The breadth of First Amendment protections afforded to newspapers is something broadcasters yearn for.
The FCC in the past has taken away a broadcast license for racist programming and content. In an FCC proceeding that twice went before the Supreme Court, WLBT-TV/Jackson, Mississippi, lost its license in 1971 under the now-defunct Fairness Doctrine. The broadcaster’s support of racial segregation, and engaging in alterations to network civil rights movement news coverage, were deemed violations of the Fairness Doctrine.
So decades later when the Fairness Doctrine no longer applies, what is the red-line on political incorrectness? The politician calling for the KQQZ license revocation cited FCC policies prohibiting obscene, indecent, or profane language on the air. The FCC’s website titled “Obscenity, Indecency & Profanity – FAQ,” however, mentions nothing about either homophobic or misogynistic programming, nor any prohibitions on the use of the “n-word” in radio talk programming.
But underlying all FCC regulation is the Communications Act and its Section 307 requirement that radio stations licenses are granted to serve the “public convenience, interest, or necessity.” While the FCC’s statutory public interest standard has not previously been applied to homophobic, misogynistic, or racist programming, a future FCC chairman and commissioners could do so.
An FCC complaint can be filed at any time against a radio station. If an FCC complaint is filed on the basis of homophobic, misogynistic, or racist programming, it is quite possible that such a complaint could impact a station’s future license renewal application.
Radio stations, unlike newspapers, must have a government-issued license to broadcast. Thus, while political-incorrectness might be cutting-edge and publicity-provoking, the more incorrect the programming, the larger potential for both politicians and the community to demand of the FCC that something be done. A future FCC could determine that, in spite of the First Amendment, homophobic/misogynistic/racist programming is not in the public interest, and for that reason deny a broadcast station’s license renewal.
John Garziglia is a communications attorney at Womble Bond Dickinson and can be reached at (202) 857-4455 or [email protected]