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October 21, 2014

Q&A With George Washington Law Professor John Banzhaf

George Washington University law professor John Banzhaf says he filed a petition with the Federal Communications Commission on Tuesday opposing renewal of the license of radio station WWXX owned by Washington Redskins owner Dan Snyder. Technocrat talked with Banzhaf, who laid out why he filed the petition with the FCC and possible next steps.

The petition states that Banzhaf and others have been harmed by actions of the station, “especially its practice of repeatedly and unnecessarily using on the air an offensive derogatory racial slur referring to American Indians,” and that these actions aren’t consistent with the “station’s obligations under federal broadcast law to operate in the public interest, that it is akin to broadcasting obscenity, that it also amounts to profanity, and that such words amount to hate speech.”.

Below are excerpts of Technocrat’s talk with Banzahf (which has been edited for length):

Q: So, what’s the outcome that you’re looking for? Is it for the station’s license to not be renewed or for pressure to be placed on Redskins owner Dan Snyder to change the team’s name? I mean, what’s the ultimate outcome that you’re seeking here?

A: Well I think the both are inextricably interrelated. If the FCC were to deny a renewal of the license on this basis, I think overnight every other station in the country would stop using the word. Indeed, I think that if the FCC simply holds up the license renewal as it probably will as its rule seems to require it and holds a hearing on these issues, it will likewise inspire or pressure most other stations to make the change.

And that, by the way, is exactly what happened when I brought this license challenge in the late 1960s on a similar basis – racism – against one major TV station in the Washington, D.C., area. Within a week of the filing, before the FCC took any action, they suddenly changed, they elevated an African American to an executive position… they started using African American reporters on the air, they added an African American to their on-air talent lineup, and within weeks the other major stations did exactly the same thing long before the FCC even got to rule on this petition.

I think ultimately, moral suasion isn’t going to work with Dan Snyder. He has now been asked by the President of the United States, 50 U.S. senators, many House members, virtually every American Indian organization of any consequence, almost 100 different civil rights organizations, he’s been asked by the D.C. city council. . .  to change and he has said he will never do it.

I think ultimately what will do it is economic pressure and that could be the revocation of his trademarks, although that’s almost certainly many years off, or the inability to have his name used on the air.

It would be the death of the Redskins if they could no longer use their name on the air.

Imagine if General Motors for example could no longer use their name on the air in terms of advertising or discussing their cars.

Q: So in this particular legal action, why file with the FCC?

A: Because it’s the most effective. Broadcasters are very, very concerned about any challenges to their broadcast licenses. Because even if they assume that the odds that the challenge will be effective are small, look at what they’re risking. A large station [in the] DC metro area for example, their licenses are worth hundreds of millions of dollars. Without them they are nothing. Their studios are a drop in the bucket.

And even if a challenge is ultimately not successful, the minute a challenge is filed, it immediately becomes a sword of Damocles hanging over that station. It can adversely affect the station’s credit rating, it can limit its ability to be sold or transferred or to merge with other stations or broadcasting entities. It can limit the ability of the station to attract new talent.

And so, broadcasters take these things very seriously. Indeed there’s an expression in broadcasting law that to get something done, the FCC usually doesn’t even have to order it. They do what is called an order by a raised eyebrow. In other words, they simply arch their eyebrow and say we’re concerned about that and everybody acts.

A very interesting example that occurred in the mid-70s when songs began to appear which allegedly lured kids into drugs. I always had difficulty seeing or believing that a teenager might listen to a song, for example like “Lucy in the Sky with Diamonds” and because it spells out LSD be tempted to run out and buy some.

But nevertheless, the FCC, with no more evidence than that, issued what they called a policy statement saying that broadcasters should re-examine whether running songs which allegedly encouraged drug use was consistent with their legal obligation to operate [in] the public interest. And although they never set down a license or hearing… never did anything else, the broadcasting industry went crazy trying to stop broadcasting those songs.

And the amusing part of it was most of them had no idea which songs fell into this category and literally had to hire teenagers to interpret the words for them.

Q: So, what are the next steps here for you?

A: Well, we are looking at several other possible licenses which could be challenged. There are also other procedural avenues we could follow. For example, we could formally petition the FCC to adopt a policy statement with regard to racial slurs similar to the one it adopted on drug lyrics or others that they’ve adopted from time to time.

We could send out letters to stations which now use the word Redskins and advise them that if they don’t stop using it, their licenses might be challenged. And these could include, for example, small stations where there are a large number of Indians in the population say out in the Southwest, where number one, they are very concerned about their audience and number two, unlike people in the Washington D.C. area, their audience really doesn’t care very much about our team and therefore, without very much trouble, they could simply say the Washington team rather than Redskins.

But it could also include larger stations. For example, the TV stations out on the West Coast are coming up for renewal in several months. Or more precisely the applications and the oppositions have to be filed within the next several months. So that would be a possible target.

Q: And you said you’re looking at several other possible licenses which could be challenged. Are you specifically talking about the stations owned by Dan Snyder or just any station?

A: Well, we’re looking at a lot of different options and quite frankly we haven’t at this point really decided what would be the most effective one for our next step. But I think we are all now convinced that the strategy of using broadcast law and the fear or at least respect that broadcasters have for the FCC and the power the FCC has over their operations, whether it’s through license revocations or fines [or] whatever is probably the most promising and effective tactic at the moment.

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  • Mark E. Reynolds

    Would you be willing to challenge the license of the radio station that covers Red Mesa HS games on the Navajo Nation reservation? Their name is the Redskins as well.

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