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Q&A With David Solomon, the FCC’s Enforcement Whip Cracker

Since its inception nearly five years ago, the FCC's Enforcement Bureau has increased the agency's activity in matters of indecency, pirates, main studio, RF radiation, EAS and other areas.

WASHINGTON Since its inception nearly five years ago, the FCC’s Enforcement Bureau has increased the agency’s activity in matters of indecency, pirates, main studio, RF radiation, EAS and other areas. The crackdown on indecency has been particularly aggressive in the past year.

David Solomon has been chief of the FCC Enforcement Bureau since its creation in 1999. He says complaints about broadcast indecency received by the commission used to focus mostly on radio programming. Now they also focus on TV.

As the number of indecency complaints has increased, so too has the number of proposed fines and their monetary amounts.

In 2000, the commission proposed seven indecency forfeitures for a total of $48,000. So far this year, the agency has issued six Notices of Apparent Liability totaling more than $1.5 million in proposed fines, and it has entered into consent decrees to settle outstanding indecency cases – for $1.75 million with Clear Channel and $300,000 with Emmis.

The agency has increased the amount of individual indecency forfeitures from a base amount of $7,000 per violation to $27,500 per violation and has begun a proceeding that eventually could result in broadcasters being required to keep program recordings to assist the agency in its indecency enforcement.

Increased scrutiny by the commission on broadcast indecency has occurred against a backdrop of congressional activity in an election year. Both houses of Congress have passed measures to raise the maximum fine allowed for indecency; the Senate by 10 times, the House by nearly 20; at press time, both bills remain mired in conference committee.

Looking towards the bureau’s 5-year milestone in November, Radio World News Editor and Washington Bureau Chief Leslie Stimson and bureau Chief David Solomon spoke about issues affecting radio and what could lie ahead.


RW: What is going right in regards to broadcasters and what could be improved?

Solomon: When we started the bureau, we set out with the broad goal of saying we wanted to make the FCC a credible, effective and professional enforcement agency. Not simply for the purpose of doing it, but because strong enforcement would lead to deterrence; deterrence then leads to greater compliance.

Compliance then leads to consumers benefiting from what Congress and the FCC set out to do. …

Broadcasters have always, as an industry, taken compliance seriously, but I do think the stronger presence of the FCC as an enforcement agency has increased the compliance by broadcasters with the various provisions.

For example, when we started doing RF radiation enforcement, you could see that broadcasters started to take that more seriously. We issued some NALs. That was a strong signal to broadcasters that that was something they had to be concerned with.

When we did some strong tower enforcement, even when it didn’t necessarily involve broadcasters, some of the actions involved wireless carriers; broadcasters really got the message that we were serious about tower enforcement. …

We updated and renewed the Alternative Broadcast Inspection Program, a program that provides (that) in certain circumstances, we won’t do routine inspections if broadcasters have signed up with their state association or, in some cases, others, to do certain kinds of inspections. …

RW: What could be better?

Solomon: One area that we continue to give a lot of attention to, and is a high priority, is pirate radio. I do think pirate radio continues to create some real challenges for us.

We’re responding to the challenges in the sense that we continue to shut down numerous stations. Every year we probably shut down from 150 to 200 stations through various means.

We’ve had a lot of success for one portion of the pirate radio problem – for those people or entities who are not really focused on the fact that there are licensing requirements; they’re small groups or individuals who go on very low powered and basically without a license, but provide some sort of local community service.

(W)e go and we warn them; those people generally go off the air. And don’t do it again. But there’s a second aspect of the pirate problem where, it’s a continuing challenge; and that’s with what you might call the professional pirates.

RW: Because they shut down and move, and start up again…

Solomon: Right, and that’s particularly an issue in south Florida where we’ve taken a number of steps and we continue to adjust our strategies to try to be effective. But it’s a challenge, because you have a group, really, of professional pirates down there. …

We’ve been recently exploring greater use of injunctions, and greater use of criminal actions by the U.S. Attorney to continue to use a series of measures that hopefully will have a strong effect. …

We have devoted and are continuing to devote resources to it. One of things we’ve done is we have increased the size of the Miami office from two to three (people) and we continue to use staff from the Tampa office as well to work on the pirate problem in Miami and in south Florida generally. …

RW: You mentioned the compliance or awareness of RF radiation has gone up since the bureau was formed. Can you expand on that?

Solomon: One of the things that’s been a positive development in the last few years is we’ve gotten a lot of budgetary support from Chairman Powell and the commission for upgrading the field technical infrastructure. We’ve been able to buy RF radiation detection equipment for the first time, which has thus enabled us to move into the area of RF radiation enforcement. …

For RF radiation, as we took the first actions, they got a lot of attention among broadcasters, among consulting engineers and the like. This is somewhat anecdotal, but there does seem to be the sense that a lot of broadcasters said, “This is something we need to go check ourselves to make sure we’re in compliance.” It doesn’t necessarily mean they weren’t in compliance, but it means that they’re now paying more attention to compliance. …

Another area that we’ve certainly had a lot of action on recently is the main studio rule and public file rule. Field investigations – again, I think it’s the case that when people see those kinds of enforcement actions, hopefully more attention is paid to compliance.

RW: You had mentioned to me awhile back that you were going to start going after companies with patterns of tower violations. Is that working? I’ve noticed the fines are getting bigger, and you are certainly going after people who have repeat violations.

Solomon: We do have communication between the various field offices. Rather than just doing an isolated action against a company here and an isolated action there, if there are multiple violations in different places we certainly try to look at those.

The best examples I have actually involve wireless carriers rather than broadcasters, which maybe is a good thing from a broadcasters’ perspective. I know, for example, we did more than one NAL involving AT&T Wireless that involved several tower violations. … We did just have a consent decree with one broadcaster that is having difficulties with compliance at a lot of stations in which they agreed to turn in some licenses and a compliance plan and payments as well. It was the case involving (Bishop) Willis. …

(Note: In June, the FCC ruled that Norfolk-based Levi “Bishop” Willis had to surrender four licenses and sell two more after their renewals were approved, to satisfy more than $84,000 in fines, some dating to 1999.)

RW: On indecency, you’re increasing the amount of the fines, going to the maximum amount that you can now and also you’re dangling license revocation as a possibility. What else can we expect?

Solomon: There’s no question that the commission’s gotten tougher on indecency. … It’s using the statutory maximum more … (Also) the commission is not just focusing on the single station that’s the subject of a complaint, but if it was broadcast by co-owned stations, is focusing on that as well.

The commission has also indicated, for example, that it will start looking at whether even within a program or a program segment there may be multiple violations based on so-called multiple utterances, separate utterances. We did one case where the commission found separate utterances based on the fact that they were two people.

It was a Notice of Apparent Liability. Both people were speaking, apparently, indecent language, so the commission proposed to have violations based on what each person was saying as opposed to the overall segment. …

RW: So co-hosts each getting a whole set of violations.

Solomon: Yes. I’m not sure if it was co-hosts or a host and a guest. Two people. So, the commission’s definitely getting tougher.

The amount of enforcement in the last year has been more than in the last decade combined. The numbers are very high. …

At the same time (the FCC) … has taken steps to continue to be sensitive to First Amendment concerns. For example, we continue not to go out and monitor programming on our own. We do respond to complaints that come in against particular programs or licensees. We’re complaint-driven.

We also look at each case carefully. We don’t make a decision until we’ve reviewed all the facts and the law carefully. And when the commission, in some instances, has toughened the law.

For example, when the commission in the Golden Globe case changed the law to say that fleeting use of expletives could be indecent and were indecent in that situation, the commission announced that prospectively.

It didn’t propose to fine NBC in that case. It simply announced that this is the way, prospectively, it would look at it again, being sensitive to the First Amendment concerns at issue. …

RW: Since the commission’s been more vocal about what it is going to do in regards to indecency, multiple utterances, higher fines, that kind of thing, how has the number of complaints changed?

Solomon: Certainly the overall number of complaints has gone up dramatically in the last few years. But you have to look at two numbers to get a picture.

You have to look at the overall number of complaints, but also the number of programs or program episodes about which the complaints have been filed. For example, in 2004, we’ve received over 800,000 complaints. But over 500,000 of them were against the Super Bowl; almost 300,000 were against one episode of “That 70s Show.” …

What’s certainly changed is we’ve gotten a lot more numbers of complaints. Also, there’s been a shift. It used to be virtually all the complaints were against radio. Now, in the last two years, I think 2003 and in 2002 as well, there’s been a shift that we’re now getting more on television.

RW: What documentation needs to accompany filed complaints?

Solomon: At least during the time that I’ve been chief of the Enforcement Bureau, and frankly, I think before that with the Media Bureau, the commission has been consistent. …

(W)e need basic information about what was said and the context. What the commission generally looks for … (is ) either a significant excerpt or a full or partial transcript.

You want to know something about what was broadcast. For example, when somebody files a complaint that, “I heard such and such show on the radio yesterday and it was disgusting. Do something about it,” we don’t investigate that complaint.

On the other hand, if they give us information about what was broadcast that does suggest it might be indecent, then we do investigate it.

RW: In regards to the proposed mandatory recording of programs, how can this help the FCC?

Solomon: One of the ways it will certainly help us is to the extent that when we start investigations, in the vast majority of cases, we get enough from the complainant to decide whether or not an investigation is appropriate.

When we … go back to the broadcast station and say, “Here’s what the complainant says you broadcast, either on radio or television, give us a tape or transcript.” In some cases they come back and say, “We don’t have a tape or transcript.” That makes it harder for us to proceed to make a decision.

Certainly it will help in those investigations where, when we start an investigation, because we’re concerned it might be indecent, it’s easier to determine it if we know for sure what was broadcast. To some extent that will help broadcasters as well. …

It’s not just to help us. We’re not out there to say, “The tape helps us prove it’s indecent.” The tape will help us prove what the facts are.

RW: What are some creative excuses broadcasters give you for whatever the violation is?

Solomon: We … describe one case as the “No, thank you, to the FCC” case. This is the Peninsula (Communications) case in Alaska where the commission, in an order written by the Media Bureau, ordered somebody to go off the air, and they basically said, “No, thank you,” to the FCC. That resulted in a forfeiture order, and they still refused to pay attention to the FCC order.

That led to a revocation hearing and it led to an administrative law judge revoking two of their full-service licenses. The issue was over getting certain translators off the air. …

Their appeal of the judge’s decision is pending before the full commission but it’s certainly not a good thing for broadcasters to come in and say, “No, thank you,” to a commission order, just like it’s not a good idea to lie and lack candor. …

In terms of arguments, some of the fun ones are in the realm of, people coming in and telling you everything you’re doing is stupid. It just isn’t a good strategy.

You get people who come in ad say, “Look, your proposed enforcement action is stupid, the rule is stupid, the FCC is stupid. Congress is stupid.” And that may or may not be right in various contexts, but it’s not a smart thing to come in and say that.

The best thing people can do is come in and say, “Here’s why you’re wrong on the facts and the law.” … It works to convince us that you’re right and we’re wrong. If that’s true, then we’re going to go your way.