From FCC to media, unnecessary static

April 16, 2004

If you listen to radio station WBCN on weekday mornings, you may be shocked by what you hear, but you shouldn't be surprised. You're listening to the Howard Stern show, after all, and the man that fans dub the King of All Radio goes out of his way to goad, taunt and outrage both listeners and guests.

That makes Stern unlike, say, the half-time show of Super Bowl XXXVIII, where millions of viewers looking for some G- (or perhaps PG-) rated entertainment genuinely were surprised when confronted by smutty singers, lewd dancers and one exposed breast.

It's an important difference. No one (except Justin Timberlake) was viewing the show to see Janet Jackson's breast. But everyone who listens to Stern's show knows exactly what they're in for.

Nevertheless, the fury over Jackson's January wardrobe malfunction has become a launching pad for a new wave of worry over "decency," one aim of which, quite clearly, is to put Howard Stern out of business. Last week, the Federal Communications Commission fined Clear Channel Communications a hefty $495,000 because of an April 9 Stern show. Clear Channel, fearing its broadcast licenses were at risk, dropped Stern from its lineup. For the moment, Stern's parent company, Infinity Broadcasting, is sticking with him. Yet Stern, with good reason, fears he'll soon be off the air entirely.

I've read the transcript of the show that earned Stern his most recent fine and there's no question it's outrageous, much like the other material Stern performs every day. But it also clearly was not obscene. Obscenity is the prurient stuff that lacks "serious literary, artistic, political or scientific value." But no one, not even the FCC, claimed that Stern fit within that definition.

Rather, he was "indecent." And what's that? Who knows? If "in olden days a glimpse of stocking was looked on as something shocking," the old days may be with us again. Indeed, the Parents Television Council, which has been pushing the FCC to crack down on indecency, regrets the passing of the days "when Rob and Laura Petrie on the Dick Van Dyke Show could not be seen sleeping in the same bed."

But how is it that the sensibilities of a few should dictate what everyone else is allowed to hear or watch? How can any of this square with the First Amendment's command that the government "shall make no law abridging the freedom of speech?"

In the strange world of broadcasting, the rules are different.

In the early days of radio - and later, television - the government essentially gave away broadcast licenses for free. There was a QUID PRO QUO,however. The government argued radio and TV licenses were public property temporarily held in private hands. As a result, Congress said the FCC should be able to regulate the content of the two media as it saw fit. The public property argument was a pretty thin reed on which to rest voiding the First Amendment, yet the Supreme Court in 1978 narrowly upheld it (in the PACIFICAdecision, which was about George Carlin's famous "seven dirty words"). The court said broadcasting has "the most limited First Amendment protection," largely because broadcasts are "uniquely pervasive."

But while that may have been true a quarter century ago, it's far less the case today. For one, technology exists to filter out unwanted television shows (in fact, the real problem with the Super Bowl was that it was incorrectly rated). More important has been the rise of non-broadcast television and radio (such as cable TV, Internet radio, satellite TV and satellite radio). As viewers and listeners, it really doesn't matter to us how we receive the signal. Yet as far as the FCC is concerned, the difference is huge. For the agency's decency rules only apply to traditional broadcast stations. Everyone else is exempt.

That's a silly distinction. HBO and Showtime are just as "pervasive" as once were broadcast stations. It's also a distinction that has shown the real harm of the FCC's censorship: Cable and other non-broadcast media have become better than traditional broadcasting. Why? Because non-broadcast media have had the freedom to experiment without interference from the government.

Traditional broadcast stations have fought back, however, trying to become ever more edgy. This is what has led to the current crackdown. If the FCC is serious about its newfound passion for decency, broadcasters may be headed for a new era of insipidity.

That, of course, will just strengthen the hand of the non- broadcast media. Shut down Howard Stern? You'll soon hear him on XM radio. Try to make Oprah into milquetoast? She'll just move to cable. Sure, it's fine to make broadcasters warn about content. But the best way to protect offended ears and eyes is just to turn the thing off.

Talk back to Tom Keane at tomkeane@tomkeane.com.