2013-10-11 14:59:04 - WASHINGTON, D.C. (October 11, 2013): Noting President Barack Obama’s recent support for a name change, a group of former Federal Communications Commission [FCC] officials, distinguished practitioners before the FCC, academics, and some activists sent a letter yesterday to FCC Chairwoman Mignon Clyburn asking the federal agency to convene an open forum with broadcasters to discuss whether they should voluntarily stop using the name “Redskins” when referring to the Washington D.C. NFL football team.
In the letter, more than two dozen signatories stress that the discussion between broadcasters and the FCC need not necessarily answer any questions of legality, nor lead to regulatory intervention. The purpose of the forum would be to see if broadcasters would agree to voluntary self-regulation regarding the term "Redskins." However, if the requested forum isn't convened, or does not succeed, advocates may use other more potent legal approaches.
Recently, the Washington Post called an approach to the "Redskins" problem utilizing federal broadcasting law one which is "potentially more significant than any lawsuit or legislation" because it makes use of the legal obligations which TV and radio stations must meet to retain their broadcasting licenses.
By law, stations and
their programming must serve the "public interest, convenience, and necessity."
Also, between 6 AM and 10 PM, radio and TV stations may not use profane language, "including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance."
Stations found by the FCC to be in violation may be fined, or find that their very valuable license to broadcast on a given frequency may not be renewed.
In an earlier letter, former FCC Chairman Reed Hundt, and many of yesterday’s other signatories, termed the R-word an "unequivocal racial slur" akin to the N-word. They liken the use of “Redskins” to an "obscenity" which is illegal on the airwaves in any form, rather than simply an "indecency" which, like profanity, cannot be broadcast between 6 AM and 10 PM.
That earlier letter also likened the use of the term "Redskins" to "obscene pornographic language on live television." Hundt also wrote in a related editorial that: "As chairman of the FCC, I prosecuted a case against Howard Stern for violating indecency rules."
If the FCC does not act on its own, it could be prodded or even required by law to become involved in the dispute, says public interest law professor John Banzhaf. Banzhaf, the “Man Behind the Ban on Cigarette Commercials,” was the first to suggest using federal broadcasting law as a powerful weapon against the unnecessary use of the word "Redskins" on the air, but is not one of the signatories on this new letter.
Banzhaf notes that a formal legal request could also be filled, calling upon the FCC to issue a policy statement regarding the use of the word "Redskins" – and possibly other racially derogatory terms – on the air. An FCC policy statement is not legally binding, but can be used to put radio and TV stations on notice of conduct which might jeopardize renewal of their broadcast licenses at renewal time.
Banzhaf suggests that advocates could also file a formal legal request calling upon the FCC to issue a policy statement regarding the use of the word "Redskins" – and possibly other racially derogatory terms – on the air. An FCC policy statement is not legally binding, but can be used to put broadcasters on notice of conduct which might jeopardize their broadcast licenses.
The FCC issued just such a policy statement in the 1970s, warning stations that playing songs which allegedly gloried drug use was probably inconsistent with their obligation to broadcast in the "public interest, convenience, and necessity," and could put their licenses at considerable risk.
Another approach would be for “Redskins” opponents to file a formal legal petition for rulemaking, seeking an FCC rule which would prohibit the unnecessary use of the term "Redskins" – and perhaps also other racially derogatory terms – on the air, especially between 6 AM and 10 PM when children are in the audience.
By law, the agency must respond to such a legal petition and, if such a rule were to issue, it would open broadcasters up to large fines, and possibly even revocation of their licenses, for violations.
Activists concerned about the unnecessary use of the “Redskins" word by broadcasters could also file legal complaints seeking fines against any individual offending station. Both the FCC and the broadcasting community have become increasingly sensitive about the use of any offensive or derogatory words on the air, especially those related to race, says Prof. Banzhaf, noting the following recent events.
# Jimmy"The Greek" Snyder was ousted over a few ill-chosen stereotyped remarks about black athletes.
# Don Imus was suspended for using the racially charged term “nappy.”
# Juan Williams, a member of a minority group himself, was fired by NPR for admitting some trepidation when he saw people in Muslim garb boarding airplanes.
# An ESPN reporter was fired for using the well known phrase "chink in the armor" in connection with Asian American athlete Jeremy Lin.
# Chef Paula Deen lost her program and much more after admitting that many years ago, in the South where it was all too common, she used the N-word once in a strictly private conversation.
Finally, notes Banzhaf, anyone could formally file a legal challenge to the renewal of the broadcast license of any station which unnecessarily used the word on the air. At least two stations have lost their licenses through such challenges; one, like that involving the word "Redskins," was based upon alleged racism.
Banzhaf also notes that a broadcast license challenge which he helped put together prodded a major TV station to begin employing blacks as reporters – and in other significant on-air roles – for the first time very shortly after it was filed. It also had a ripple effect on other DC TV station, and TV stations in other jurisdictions.
This is not surprising, explains Banzhaf, because, unlike most other legal actions which may have no effect for many years, the mere filing of a petition opposing a license renewal can have serious immediate effects.
It can, says Banzhaf, adversely affect the credit rating of the station and monetary value of its broadcasting license, prevent it from transferring its license or merging with other stations, etc.
Banzhaf also suggests that the arguments being made against change, while they may make good sound bites, would not hold up in any legal proceeding. Lanny Davis, whom the Washington Post described as having “developed a specialty representing Third World dictators and questionable businesses,” compared the “Redskins” to the Cleveland Indians, the Atlanta Braves, and the Chicago Blackhawks.
But none of these words are defined in dictionaries as offensive or derogatory, automobile license plates with these team names have never been recalled or denied, virtually every major American Indian organization hasn’t gone to the U.S. Supreme Court to oppose them, etc. says Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
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)
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