FCC takes aim at Stern


April 10, 2004|By David Folkenflik | David Folkenflik,SUN STAFF

As federal regulators take aim at him, shock jock Howard Stern is positioning himself to become the country's most famous free-speech martyr.

On Thursday, Stern was rebuked by the Federal Communications Commission for a year-old broadcast in which - be warned, breakfast readers - he and a sidekick and guests described graphic sexual acts punctuated by sound effects representing odious bodily functions. The commission proposed a fine of $495,000 against Clear Channel Communications, which owns the Florida radio station that triggered a complaint against Stern's show.

Clear Channel had previously suspended Stern from its airwaves when racially charged comments by a caller prompted another proposed fine. Now the San Antonio company has permanently dropped Stern, whose morning show was carried on six of its 1,200 radio stations.

"This is not a surprise," Stern announced on his Web site. He said his critics, including lawmakers and regulators of both parties, are "expressing and imposing their opinions and rights to tell us all who and what we may listen to and watch and how we should think about our lives."

He added: "It is pretty shocking that governmental interference into our rights and free speech takes place in the U.S. It's hard to reconcile this with the `land of the free' and the `home of the brave.'"

The Internet home page of Stern, a man long known for celebrating flatulence and strippers, now includes a quotation from the late U.S. Supreme Court Justice William Brennan crusading for protections of free speech. The site also features links to articles critical of President Bush.

In the wake of increasing regulatory scrutiny of the airwaves, some pro-Stern groups have sprung up, apparently organically, in protest. And Stern's reach remains strong.

According to an analysis of Arbitron ratings data from last fall, Talkers magazine estimated that Stern draws approximately 8.5 million listeners each week. A televised version of his program remains on the E! cable television network. And Infinity, the radio division of the media conglomerate Viacom that helps to syndicate his program, remains solidly behind him, according to spokesman Dana McClintock, although its stations have put in place a slight broadcast delay to ward off indecent remarks.

The FCC, though, has announced that it intends to review whether Infinity stations have also broadcast indecent or obscene material by Stern, a departure from past practice of waiting to respond to specific listener complaints. Under federal law, the broadcast media cannot air "indecent" material between 6 a.m. and 10 p.m. or any "obscene" material, such as actual sexual acts. A ban against "profane" language had been narrowly interpreted to address only anti-religious terms. But the FCC recently reversed a staff ruling to declare profane an utterance involving the "f-word" by U2 singer Bono during NBC's broadcast of last year's Golden Globes award ceremony.

"The commission is broadening what is a very strict interpretation of the statute," said Washington communications lawyer Howard Liberman, a former staff attorney of the FCC who has broadcasters as clients. "In the past, they would find a way to construe it narrowly."

Meanwhile, commissioners said they intend to fine broadcasters for each offending statement, not simply each program in which an offending statement was made. Cable and satellite television and radio programs do not currently fall under the same restrictions of speech. But that could change. And pending legislation would greatly increase the size of penalties.

In January, a Clear Channel radio host in Florida who called himself "Bubba the Love Sponge" drew a $755,000 fine. Then, in February, when Janet Jackson's breast was revealed on CBS's Super Bowl halftime show, the FCC was stirred to even stronger action.

In the reversal on the Bono case, NBC was not fined only because a majority of commissioners decided the shift in policy came as a surprise. And there have been ripples elsewhere. Clear Channel, which owns more radio stations than any other U.S. company, has adopted a "zero tolerance" policy intended to assure listeners of its responsibility.

It fired "Bubba the Love Sponge," and in Atlanta this week, Clear Channel fired two local radio hosts because their sexually explicit banter with a pornographic film actress could be heard by listeners during an advertising break. A public radio station in Los Angeles fired a commentator after her profane remark was inadvertently broadcast on the air. (She has rejected an offer to return.)

So far this year, the FCC has proposed fines of $1.6 million. That's more than the combined total of the previous 10 years, according to a new study by the nonprofit Center for Public Integrity. Stern, the group said, is "the King of All Fines": His shows have triggered proposed fines of nearly $2.5 million - more than half of all penalties for broadcast indecency levied by the FCC since 1990.

"The difficulty with the shock jock format, which Howard invented, is that as you push the envelope, your audience becomes more and more desensitized," G. Gordon Liddy, the Watergate burglar turned conservative radio talk show host, said yesterday on NBC's Today Show. "What would shock them yesterday won't shock them again today, and so you have to be ever more shocking."

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