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Delays, Low Fines Weaken FCC Attack on Indecency

By Frank Ahrens
Washington Post Staff Writer
Thursday, November 10, 2005

On the morning of June 3, 1996, Howard Stern hosted an explicit discussion between adult-film star Jenna Jameson and her father on a nationally syndicated radio show, broadcast to more than 10 million listeners.

It didn't take long for the conversation to go from tasteless to downright vulgar.

The Federal Communications Commission, under Democratic Chairman Reed E. Hundt, took one year to determine that the radio routine violated the agency's indecency regulations. But nearly four years and two FCC chairmen later, in February 2001, the $6,000 fine was rescinded "due to passage of time," FCC records note.

The FCC's actions were hardly an aberration. A Washington Post analysis of all 92 known proposed indecency fines shows that the agency's record of policing the airwaves has been undermined by plodding investigations, insufficient fine amounts and inconsistent follow-up.

The agency's role as broadcast nanny has come under greater scrutiny in recent months as consumers and lawmakers grow concerned about the increasingly coarse content of radio and television -- last year, the FCC received more than 1 million complaints about programs. Broadcasters say the FCC's content guidelines are too tough and arbitrarily applied while some lawmakers, viewers and interest groups blame the agency for being too lax.

The issue has even split FCC officials serving on the same commission, hindering the process.

Some chairmen made it a priority to collect fines; others let the penalties languish until the agency's five-year statute of limitations voided them. None of the chairmen was quick about it. The record shows that an average of 16 months passes from the broadcast date of an incident to the issuance of an indecency ruling. One case took 56 months to resolve.

The FCC is preparing to release a wave of backlogged decisions in the next few weeks after nearly a year of silence, and agency officials promise that the process will speed up.

"I am concerned by the length of time it historically has taken for the commission to act on a complaint," said Kevin J. Martin, a Republican who became chairman in March. "Since I became chairman, we have been working to develop a process to reduce that time frame."

The process can drag on because of the time it takes to secure tapes and transcripts from broadcasters and the lengthy legal wrangling that can ensue. But slow-footed investigations have not been the agency's only problem.

The size of the fines appears to have had little lasting deterrent value for giant media conglomerates that collect hundreds of millions of dollars in profits. For instance, just one year before the Stern broadcast with the Jamesons, Stern's boss -- Infinity Broadcasting Corp. -- paid $1.7 million to settle multiple indecency rulings against the shock jock.

Part of the problem, the agency says, is that fines are too low -- a maximum of $32,500. If broadcasters refuse to pay, the cases are turned over for enforcement to the Department of Justice, which has little incentive to pursue such small fines, members of Congress have said. Of four proposed fines turned over to the department, it collected two and refused to pursue two.

Moreover, the FCC typically has allowed broadcasters to pay fines without admitting a violation of indecency rules. Thus, when a broadcaster's license comes up for renewal, it contains no record of indecency violations that could be used to block renewal.

In more recent cases, the FCC has compelled some broadcasters to admit wrongdoing. But those acknowledgments are accompanied by language in the consent decrees that states the admissions cannot be used against the broadcasters in any way, say broadcasters familiar with the deals.

Even with these shortcomings, Republican Michael K. Powell, who resigned as FCC chairman in March, argued that the agency under his leadership had an impact on indecency. He cited the decision by many broadcasters to impose "no tolerance" rules on on-air talent. The key, Powell said, is raising the political heat on broadcasters and threatening them with the prospect of higher fines.

"No Washington office head wants to bring their CEO before a congressional panel and be grilled for a full day" on indecency, Powell said.

The FCC has struggled to balance First Amendment rights with laws that forbid over-the-air radio or television broadcasting between 6 a.m. and 10 p.m. of "patently offensive" material of a sexual or excretory nature. The courts have not helped much, as the guiding 1978 indecency statute is increasingly irrelevant in an era of 200 unpoliced cable and satellite channels that do not fall under the law.

Some groups say the government should no longer monitor the nation's airwaves because technology -- such as the V-chip and cable and satellite blocking systems -- allows parents to determine what their children watch.

"We're hoping that regulators, lawmakers and the American public come to the same conclusion we have, that the system is broken," said James Dyke, executive director of Television Watch, a coalition that includes most major television networks, the U.S. Chamber of Commerce, some politically conservative organizations and First Amendment academics.

"The first step is realizing that the system is outdated and can easily be hijacked by a very few, if not one individual," he said.

Dyke's reference is to the Parents Television Council, which flooded the FCC with complaints last year. Like the broadcasters, the PTC would prefer the government stay out of regulating content. "But because there is a law and the law seems to be very openly disregarded by the networks so frequently, our only recourse is to go to the congressionally mandated watchdog -- the FCC," said Tim Winter, a former NBC executive who is now the PTC's executive director.

The PTC supports clearer guidelines about what is and is not indecent, Winter said. The FCC has maintained such guidelines would amount to prior restraint of free speech -- a constitutional problem.

What seemed shocking 12 years ago -- tastefully shadowed partial nudity on ABC's "NYPD Blue" -- seems quaint today compared with more recent shows that have drawn fines, such as a Fox television show that featured whipped-cream-covered strippers or an Infinity radio broadcast that included a couple purportedly having sex in New York's St. Patrick's Cathedral.

Jeffrey H. Smulyan, chairman of Emmis Communications Corp., which owns more than 40 radio and television stations and has been hit with $42,000 in proposed fines over the past four years, said the indecency standard is a moving line, one shifting in a more conservative direction.

"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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