Six-Figure Fines For Four-Letter Words Worry Broadcasters

Further, Clear Channel -- the industry's largest radio chain with more than 1,200 stations -- has reworked its talent contracts to include "indemnification language," said Andy Levin, executive vice president for government affairs. Translation: If a Clear Channel host says anything that prompts an FCC fine, that host -- not Clear Channel -- is responsible for paying.

Indianapolis-based Emmis Communications Corp. worked to contain further damage after it paid $300,000 in 2004 to settle its radio fines, prompted largely by the morning-drive star of its Chicago station, Erich "Mancow" Muller.

Emmis corporate counsel David O. Barrett has become known as the indecency czar, traveling to the company's 25 U.S. radio stations and briefing general managers, program directors and talent. It's a tough job, Barrett said, because the FCC provides no clear guide to what can and cannot be said. The agency says such rules would amount to unconstitutional prior restraint of free speech.

Emmis created a computer-based training program on indecency -- similar to sexual-harassment training tutorials common in workplaces that are meant to indemnify employers -- that all relevant radio employees must complete. And the company recently sent a notice to all of its stations, reminding them that the indecency fines just went up to $325,000, or as Barrett puts it, "a lot of money, even for a big broadcast company."

PBS has been attempting to interpret the FCC's indecency guidelines for its member stations for more than a year, said Lee Sloan, a spokeswoman. "But it's a moving target," she said.

On March 15, California public television station KCSM was fined $15,000 for airing a profanity-laced documentary on bluesmen, produced by Scorsese. KCSM is appealing the proposed fine, and PBS is taking the unusual step of filing an additional brief with the FCC arguing that documentaries should have special status under indecency guidelines, especially now that fines are higher. In KCSM's filing, Scorsese expressed "deep concern over the adverse impact that the FCC's actions will have . . . on the ability and willingness of filmmakers to produce authentic documentaries and other valuable programming for presentation on broadcast television."

Even before Congress increased the indecency fines, performers, producers and directors saw signs that they interpreted as the long-feared "chilling effect" on free speech and artistic expression. Last summer, it seemed likely that Congress would raise the indecency fine to $500,000, and broadcasters and performers were bracing for it.

Comedian Ralphie May, whose act often includes sexually oriented material and profanity, took out indecency insurance. Though the FCC has never fined an individual for on-air indecency, profanity or obscenity, it may have the legal right to do so, say those who have studied the governing statutes.

May's insurance company performed a risk analysis on him in late 2004 -- "to see where I was deficient," he said. As a result, May increased his coverage, which also included slander and lawsuit protection, to include indemnity against possible indecency fines. He pays $22,000 a year for the $1 million policy.

"Basically," May said at the time, "I'm buying a big shield."