FCC eyes punishing broadcasters for using ‘Redskins’ football name

The Federal Communications Commission (FCC) is considering whether or not to punish broadcasters for using the term ‘Redskins’ when referring to Washington, DC’s NFL football franchise.

Legal activist and George Washington University law professor John Banzhaf III has petitioned the FCC to revoke the broadcasting license of the capitol’s WWXX-FM over the station’s use of the name ‘Redskins’. Banzhaf says the word is racist, derogatory, profane and hateful, making its use "akin to broadcasting obscenity."

"We'll be looking at that petition, we will be dealing with that issue on the merits and we'll be responding accordingly," FCC Chairman Tom Wheeler told reporters.

"There are a lot of names and descriptions that were used over time that are inappropriate today. And I think the name that is attributed to the Washington football club is one of those," Wheeler added.

In 1992, a group of Native Americans, led by Suzan Shown Harjo, filed a petition with the US Patent and Trademark Office, asking the PTO to cancel the team’s ‘Redskins’ trademark protection, calling the name derogatory. While the federal agency initially sided with the petitioners, a court overturned the decision on a technicality.

In 2006, a second group petitioned the PTO to cancel the trademark, arguing that federal trademark law bars the office from registering trademarks that “may disparage” groups or individuals. In June, the federal agency upheld the petition and canceled the Redskins’ trademark. The team has sued the group, asking for a chance to defend their name in court.

Current owner Dan Snyder has repeatedly said that he would “never” change the team’s name. Over the past few years, the controversy has intensified, with several media outlets (including the Washington Post’s editorial board), local columnists, and national broadcasting analysts (such as CBS’ Phil Simms and NBC’s Tony Dungy) refusing to use the moniker. Half of the US Senate ‒ all Democrats ‒ sent NFL Commissioner Roger Goodell a letter in May urging the league to pressure Snyder into changing the team’s name.

The University of Maryland’s Capital News Service (CNS) is one of the outlets that has chosen not to use the team’s name, referring to it instead as “the Washington NFL franchise” and similar terms.

“It’s a controversial subject with strong feelings on both sides,” broadcast bureau director Sue Kopen Katcef told RT. “We explained to our sports reporting class and show that they should talk about the team in more general terms. They know from the get-go what our policy is.”

“It’s a continued discussion,” she added.

Despite the wire service’s decision, both Kopen Katcef and Washington bureau chief Rafael Lorente believe that the FCC should not punish broadcasters for using the moniker.

“Any time I hear any ‘ban language’, I cringe,” Lorente said. “We made an editorial decision, just as we made an editorial decision not to name rape victims or children who are the victims of crime.”

The Washington Post’s Eugene Volokh argues that the FCC likely will not side with Banzhaf. “[T]he FCC has in the past agreed that it may not restrict broadcast speech on the grounds of its supposed racism,” he wrote for the Volokh Conspiracy blog, citing ‘In re Fox Television Stations, Inc.’ (1993).

Hogs Haven blogger Tom Garrett believes an FCC-imposed ban on the word ‘Redskins’ would be legally impossible, and that the moniker does not fit into the “very narrow” definition of obscenity laid out in the 1973 Miller v California court case. However, he wrote, it could be regulated under the agency’s profanity definition.

“The FCC defines profanity as ‘including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.’ The FCC may confine the use of profanity by over-the-air broadcasters between 10pm and 6am local time,” Garrett wrote. “The more observant among you will notice that the Redskins play nearly all of their games after 6am and before 10pm.”

Despite the controversy over the name, the FCC ruling may come down to freedom of speech.

“The FCC chairman has suggested that the agency will take a look at that petition and consider what to do with it,” Republican FCC Commissioner Ajit Pai said Wednesday during a CNBC appearance. “For my own part, as a supporter of the First Amendment, I don’t think the government should ban the use of the ‘Washington Redskins’ team name from the airwaves. But we will see what the agency proposes to do in the near future.”

Until the FCC rules on Banzhaf’s petition, it could cause a headache for those broadcasters ‒ especially in the Washington, DC, market ‒ whose licenses are up for renewal, adding between six months and three years to the process, and making it difficult for station owners to sell or obtain loans, John Garziglia, a District-based communications law attorney told the Post.

“Stations should probably take a second look at using words that large segments of the population think are offensive,” he said.