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Delays, Low Fines Weaken FCC Attack on Indecency

"It makes it difficult to know what's acceptable in 21st-century America," Smulyan said. "From a broadcaster's standpoint, what was fine yesterday is now clearly indecent today. Unless there are some guidelines, it's impossible to police."

Emmis is settling its indecency fines.

Concerns over broadcast indecency crested in February 2003 when singer Janet Jackson's breast was exposed during a Super Bowl halftime show, leading lawmakers to call for higher fines and extend the FCC's authority to cable and satellite channels. In February, the House passed a bill that would raise the maximum fine to $500,000 and require a license-revocation hearing after a broadcaster's third offense. A similar bill waits in the Senate.

The FCC has collected most of the fines it has imposed. But the long turnaround time has allowed some broadcasters to outwait the agency.

An example: During an August 1987 morning show on Chicago rock powerhouse WLUP, deejays Steve Dahl and Garry Meier talked to a caller who offered a gay-themed song called "Kiddie Porn."

More than two years passed before the FCC, under Republican Chairman Alfred E. Sikes, proposed a $6,000 indecency fine.

The station's owner, Evergreen Media Corp., through its Washington law firm, Latham & Watkins, decided to appeal. "Our licenses were so valuable, we had to defend them," said James de Castro, president of Evergreen at the time.

As part of its defense, Evergreen argued that community standards had relaxed in the two years since the broadcast, suggesting that if "Kiddie Porn" was indecent in 1987, it no longer was in 1989. The company appealed to the courts, with the Department of Justice prosecuting the FCC's case.

It eventually landed in Chicago district court. As Latham lawyer Eric L. Bernthal recalled it, the judge said, " U.S. v. Evergreen . What is this, a drug case?"

"After I explained it was an indecency case, he basically looked over his glasses and said, 'You're kidding, right?' " By that time, the FCC had slapped Evergreen with an additional $33,750 in fines. Back in Washington, Bernthal persuaded the FCC to settle all the fines with no admission of guilt on Evergreen's behalf, to drop other complaints against the company that the FCC was investigating and to craft a set of decency guidelines for broadcasters, all in exchange for a $10,000 "voluntary contribution" to the U.S. Treasury.

Post database editor Sarah Cohen contributed to this report.

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