Broadcasting Telecasting (Oct-Dec 1961)

Record Details:

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The quality of mercy is strained EXAMINER RECOMMENDS DENIAL OF WDKD RENEWAL APPLICATION An FCC hearing examiner last week tossed into the lap of the commission the problem of how to deal with a broadcaster whose misdeeds do not seem to warrant the death penalty of license revocation but are too glaring for him to escape with a slap on the wrist. In a painstaking and philosophic initial decision, Hearing Examiner Thomas H. Donahue rather reluctantly recommended that the FCC not renew the license of WDKD Kingstree, S. C. A hearing was held last spring to determine whether WDKD's owner, E. G. Robinson Jr., was derelict in maintaining control and supervision of programming; whether he permitted disc jockey Charlie Walker to broadcast indecencies; and whether he made misrepresentations to the FCC (Broadcasting, June 5). At the station's request, an issue was added to consider the overall programming of WDKD and whether it served the needs of the community. Although finding the licensee guilty as charged on all counts in the 53-page document, Mr. Donahue emphasized his feeling that some leniency would not be amiss. He said that stripping Mr. Robinson of his license would be depriving him of his principal means of livelihood — probably a more severe sentence than a criminal court would impose. He said he believed "a chastened malefactor is sometimes a better bet to carry out responsibilities under law than one who has not been subjected to discipline for wrongdoing." Mr. Donahue also suggested that the government is not without fault in having permitted the Walker broadcasts to go unchecked for some eight years. He said that had the FCC or the Dept. of Justice shown Messrs. Walker and Robinson the criminal statute on obscenity with a warning that "rustic jokes with hidden meaning might well come within the purview of that law," that the questionable broadcasts would have been discontinued promptly. The examiner pointed out that the ultimate disposition of the WDKD license would be interpreted by the industry and the public "as one of a series of events signalizing abandonment of a laissez-faire policy of regulation" of programming and station operation. It would be regrettable, he said, if the significance of this pronouncement is "watered down by any conflicting interpretation to the effect that a small station is being harshly used merely as a whipping boy in a regulatory gesture." Fine Suggested ■ Mr. Donahue suggested that the best penalty for Mr. Robinson would be a fine of $1,000 for each day the hearing record shows Mr. Walker broadcast obscene matter. The fine would be coupled with a shortterm renewal of license and statements from Mr. Robinson indicating that he has studied FCC programming policy and court decisions relevant to his offenses. However the law authorizing forfeitures to be imposed by the FCC sets a one-year statute of limitations, and the Walker programs are more than a year in the past. "The examiner appears to have no alternative but to recommend grant or denial of the application at issue. In his opinion, it would be unconscionable to permit Robinson to come off here with only token punishment for the grievous deviation he has permitted his station to make from the public interest norm. It is also important that disposition here should stand as a warning to others that such licensee misconduct is not to be condoned," Mr. Donahue concluded. The examiner met the question of the character of Charlie Walker's programs head-on. He said he would characterize them as obscene and indecent to the extent they run afoul of the statute in the U. S. Criminal Code. Mr. Donahue said this is the first case in which obscenity is an issue that has come before the FCC (although its predecessor agency, the Federal Radio Commission, dealt with one such case) ; his decision on what laws govern the definition of obscene broadcasting could have far-reaching effects if confirmed by the commission. He cited precedent to show the FCC is not forbidden to consider matters which could come under criminal or civil court jurisdiction. In proposed findings WDKD said that the FCC should adopt the test for obscenity set forth by the Supreme Court in the Roth case: "Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests." Mr. Donahue said he does not feel that test need be applied to broadcasting but that even under the Roth standards he holds the broadcasts by Walker were obscene. Radio Is Different ■ "The field of broadcast regulation is perhaps an area as ill adapted as any for employment of the Roth test. First, it must be remembered that, unlike the acquisition of books and pictures, broadcast material is available at the flick of a switch to young and old alike, to the sensitive and the indifferent, to the sophisticated and the credulous. Further, broadcast material is delivered on a route commonly owned by the public on a vehicle especially designed to serve them and is received on property owned by the consignee," Mr. Donahue stated. As examples he suggested that although the courts had found James Joyce's Ulysses and D. H. Lawrence's Lady Chatterley's Lover not to be obscene and to be mailable, if dramatizations of these novels were to be telecast in depth with all the lurid details included, the FCC could seriously question the qualifications of the licensee over whose station they were presented. In fact, Mr. Donahue hypothesized, federal and state authorities in full pos We didn't really mean it, The FCC last week retracted a verbal spanking it gave an attorney last spring by "expunging" language from a decision which admonished John J. Cole Jr. Mr. Cole, with the Washington law firm of Smith & Pepper, had filed a petition for reconsideration on behalf of Aztec Community Tv Inc. against the continued operation of three vhf repeaters in Bloomfield, N.M. In the petition, Aztec said that the commission had failed to meet the problem of vhf boosters and was responsible for the "long says FCC and sad history surrounding the vhf booster situation." In denying the petition, the FCC said that Aztec's filing contained "scandalous material" and that if the same attorney again files "pleadings containing such material in this or any other proceeding . . . specific measures will be considered to prevent any further repetition (Broadcasting, April 3)." Last week's commission action deletes that portion of the decision admonishing Mr. Cole and leaves the rest of the order in effect. 74 (GOVERNMENT) BROADCASTING, December 18, 1961