Indecency on the air

Introduction

The Federal Communications Commission has proposed $4.5 million in fines for broadcast indecency since 1990, with more than half the total assessed to stations that aired shock-radio pioneer Howard Stern.

Yesterday, the FCC proposed a $495,000 fine against six Clear Channel Communications Corp. stations that aired Stern’s show, prompting the giant radio broadcaster to drop the show from its broadcast lineup permanently. On March 18, the FCC proposed a $27,500 fine against Stern for a broadcast that aired in Detroit on July 26, 2001. Before that action, Stern had not been cited since June 1998.

The FCC has sought $2.5 million in fines from stations that carried the controversial New York-based disc jockey’s show since 1990, according to the analysis. The bulk of those fines were for shows broadcast between 1991 and 1993. Five separate actions were settled for a record $1.71 million in 1995.

Using FCC records and LexisNexis legal research, the Center for Public Integrity identified 75 broadcast indecency proceedings instigated by the FCC since 1990. The Center focused on proposed fines, called “notices of apparent liability.”

The analysis shows five radio shows were responsible for $3.96 million in proposed fines since 1990, or 87 percent of the total. The top four shows aired on stations owned by Clear Channel Communications Corp. or Viacom Inc.’s Infinity division, the largest and second largest radio broadcasters in the country, respectively.

The Center also identified $152,150 in proposed fines that had been dismissed due to the expiration of the statute of limitations.

Among some of the other findings in the Center’s analysis:

• So far in 2004, the FCC has proposed more fines for broadcast indecency than the previous 10 years combined.
• Not including Stern’s 1995 settlement, the largest single fine assessed since 1990 was $715,000 for material broadcast by Clear Channel’s “Bubba the Love Sponge” (real name Todd Clem), who was fired recently.
• Despite the flap over Janet Jackson’s “wardrobe malfunction” during the Super Bowl halftime show on CBS and increasing concern over profanities uttered on awards shows, only three fines were levied against television broadcasters since 1990, about 4 percent of the total.

Increased attention

In recent weeks, the FCC and Congress have been working furiously to toughen penalties for stations that broadcast offensive material. As of this writing, the House had passed a bill increasing fines from a maximum of $27,500 per occurrence to $500,000, and the Senate was expected to vote soon on a similar bill.

Prior to the most recent FCC enforcement action against Stern, the nation’s two biggest radio broadcasters took voluntarily steps to clean up on-air content. Clear Channel, the nation’s largest radio company with roughly 1,200 stations, fired Clem and suspended Stern from all six of its stations that carried him. Infinity Broadcasting Corp., the nation’s No. 2 broadcaster and syndicator of the Stern show, has instituted a new policy regarding indecent content.

Skeptics say the sudden move toward cleaner airwaves has more to do with politics than with a sudden outbreak of morality.

The crackdown followed Jackson’s halftime performance at the Super Bowl where one of her breasts was exposed. According to the FCC, there have been 530,885 complaints so far in 2004 – 530,828 of them were related to the halftime show. That case is under review.

The radio and television industry is deeply invested in a battle going on in Congress related to media concentration rules. An FCC decision to relax rules on how many radio and television stations a single company can own was stayed by a federal court, and a number of bills related to the issue are being debated in both houses of Congress.

Industry analysts consider the ownership fight to be a much more important issue than broadcast indecency in terms of the bottom line, and keeping good relationships with members of Congress is critical right now – even if it means giving ground on indecency legislation.

Stern, who has roughly 8 million weekly listeners, claims he was booted by Clear Channel because of his recent criticism of President George Bush.

Some of Clear Channel’s top executives and board members are key supporters of the president. Stern has pointed out during his broadcasts that two of the San Antonio, Texas-based broadcaster’s stations that stopped running his show are in key presidential battleground states – Pennsylvania and Florida.

Clear Channel issued a statement saying the disc jockey’s politics had nothing to do with the decision.

Stern has said on the air if the Senate passes an indecency bill similar to what sailed through the House, he will quit.

Infinity is owned by giant media conglomerate Viacom, which also owns CBS – the same network that aired Jackson’s performance during the Super Bowl halftime show. While Viacom has only owned Infinity since 1999, Viacom President and Chief Operating Officer Mel Karmazin has been with Infinity – and Stern – since the 1980s.

Regulating speech

Regulating speech on the nation’s airwaves is exceedingly difficult, and regulators are forced to walk a fine line between listeners who in many cases are deeply offended by what they see or hear and the First Amendment rights of broadcasters.

The basic guidelines have changed little since a landmark 1978 Supreme Court case when the FCC’s authority to regulate indecent speech was upheld.

Broadcast indecency is defined as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual and excretory activities or organs.”

The agency may fine a broadcaster or, in extremely rare cases, revoke the station’s license.

The FCC does not police the airwaves independently. It relies on complaints from listeners and viewers. Once a complaint comes in, it is investigated. The agency then has a limited period of time to file an action known as a notice of apparent liability. The broadcaster then has several opportunities to appeal. This back and forth can go on for years.

Occasionally, the agency fails to act quickly enough and a case is dropped.

Statute of limitations

According to the Center analysis, the average amount of time between the first airing of an indecent broadcast and the proposal of a fine since 1990 was 523 days. The law requires the commission to issue a notice of apparent liability within a year of the broadcast or by the date of its next license renewal, whichever is later.

Broadcasters often complain about the length of time it takes for the agency to determine whether a penalty is warranted.

The Center was able to identify five instances since 1990 where fines totaling $152,150 were canceled due to the expiration of the statute of limitations. Stern’s show was responsible for more than three-quarters of the total.

One case examined by the Center went on for nearly nine years. On Aug. 30, 1991, Flambo Broadcasting Inc.’s KFMH-FM in Muscatine, Iowa, aired jokes the FCC deemed indecent.

A fine was issued on April 1, 1994. But it wasn’t until July 27, 2000 that the FCC officially closed the books and dismissed the complaint.

More recently, a radio broadcast license holder named Edmund Dinis, whose station aired a talk show in New Bedford, Mass., had a fine of $22,400 dismissed because too much time had passed.

The Spanish language broadcast involved “jokes involving anal sex, oral sex, excretory activities and sexual intercourse with a child present.” The initial broadcast was on Dec. 5, 2000, but a fine wasn’t issued until Dec. 13, 2002. It was dismissed this past February.

Tracking fines difficult

Analyzing fines issued by the FCC for indecency or any other misdeed by the businesses the agency regulates is a difficult undertaking, Center researchers found.

The FCC only keeps information on fines from 2000 forward. When the Center sought access to civil actions prior to that year, it was suggested that researchers use a private legal research service.

Finding out whether the FCC has collected the fines it has issued prior to 2000 is an even more challenging undertaking. This problem was highlighted in an extremely critical report released by the General Accounting Office, the watchdog arm of Congress, in August 1999 entitled “FCC Does Not Know if All Required Fees are Collected.”

In that report, the GAO notes that at the end of fiscal year 1998 the FCC estimated it had an uncollected balance of about $15 million for all civil monetary penalties, including indecency. FCC officials told the GAO that about 75 percent of the outstanding proposed or assessed penalties would remain uncollected.

The GAO study also found that the FCC’s reports to Treasury contain errors and are “therefore not reliable. As a result, we cannot reach any conclusions about the effectiveness of FCC’s collection of civil monetary penalties.”

The difficulty for the FCC is that, even when a company exhausts its appeals and the FCC upholds a fine, the commission has no authority to collect it. The case is referred to the Department of Justice where the whole process may well start all over again.

Since the formation of the FCC’s Enforcement Bureau in November of 1999, the agency’s record keeping has improved. A report submitted to U.S. Rep. John Dingell by Powell shows the vast majority of indecency fines issued since 1994 have been paid.

Big radio, big fines

Powell has said publicly the FCC has been cracking down on broadcast indecency in recent years.

“This Commission, since I took over, has worked diligently to increase our enforcement efforts,” Powell told the National Press Club on Jan. 14. “And I do think the enforcement efforts and fines we have levied have far surpassed those applied by previous commissions combined.”

There is no question the total amount of proposed fines has gone up. But total indecency actions actually dipped slightly.

Thus far in 2004, the FCC has proposed six fines totaling $1.6 million, the most of any year in the Center’s analysis. The total is more than the previous 10 years of proposed fines combined.

The large increases in the proposed fines are the result of syndication. While the most a single station can be fined is $27,500, the total can add up quickly if there are multiple counts of indecency airing on several radio stations airing the same broadcast.

If Congress passes indecency legislation now under consideration, those totals will skyrocket.

In terms of total fines, no broadcast compares to the long-running Stern show. Second behind Stern for the largest amount of proposed fines is Clem, with $753,000; third is the Opie and Anthony Show, now off the air, with $378,500; fourth is “Elliot in the Morning” which broadcasts in the Washington, D.C. area, with $302,500; fifth is long-time Chicago disc jockey Erich “Mancow” Muller with $42,000 in proposed fines.

Stern and the Opie and Anthony Show were aired on Infinity stations at the time of the offenses while Clem and Elliot in the Morning were aired on Clear Channel stations. Muller’s show is broadcast by Emmis Communications Corp.

Clem has been shocking listeners in the Tampa Bay area for years. He was acquitted of animal cruelty charges for killing a wild boar on the air. Four Clear Channel stations were fined $715,000 for broadcasting indecent material (plus $40,000 for bad record keeping).

Infinity’s Opie and Anthony were fired for broadcasting a live account of a couple allegedly having sex in St. Patrick’s Cathedral in New York City. That stunt sparked a huge protest from the Catholic Church and proposed fines totaling $378,500.

The “Elliot in the Morning” show was issued a $247,500 proposed fine last week for broadcasting an interview with a woman describing (in detail) why she admires porn star Ron Jeremy. The Washington D.C.-area disc jockey was also fined $55,000 for a May 2002 show where high school girls talked about their sex lives.

TV stations rarely fined

Fines against broadcast television stations are exceedingly rare. Even when U2 lead vocalist Bono shouted “this is really, really f***ing brilliant” at the Golden Globe Awards, it still did not rise to the level of indecency, at least not initially. The FCC recently decided that it was indecent, but opted not to issue a fine.

The last time a television station was fined was for an Oct. 4, 2002, morning news broadcast on KRON-TV in San Francisco, owned by Young Broadcasting. The FCC issued a $27,500 fine when one of the performers of the stage production “Puppetry of the Penis” exposed himself while preparing to demonstrate “genital origami.”

On March 30, 2001, the FCC proposed a $21,000 fine against Spanish language television broadcaster Telemundo in Puerto Rico. And on June 24, 1997, the FCC issued a $2,000 fine to a television station in Lynchburg, Va., for broadcasting an expletive-filled science fiction movie.

But for now, the emphasis is clearly on radio.

Howard Stern has said on the air that if Congress passes the indecency bill now under debate, that he will quit his show. This no doubt has created some angst at Infinity given the DJ’s ability to bring in huge revenues.

Reuters reports that Stern’s show generates as much as $100 million in advertising and fees for Infinity.

Stern’s chief defender over the years has been Viacom president Karmazin. The powerful executive joined Infinity in 1981 and helped build the company into one of the most profitable radio broadcasting companies in the nation.

Karmazin rose through the ranks through a series of acquisitions, culminating in the 1999 purchase of CBS Inc. by Viacom. Karmazin has weathered numerous controversies involving the shock jock.

Karmazin has cracked down on indecent broadcasts at Infinity, but has never been shy about his reasons for backing Stern. In 1992, he told the Wall Street Journal, “The format of choice at Infinity is the one that has the largest cash flow.”

Editor’s Note: This story has been updated to include new proposed fines issued by the FCC on April 8.

Staff Researchers Katie Mills and Alexander Cohen contributed to this report.