Amending Howard

Kirk Baird

Monday, May 10, 2004 | 9:28 a.m.

"If there is a bedrock principle of the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

-- A quote from Justice Will J. Brennan (1906-1997), U.S. Supreme Court Justice, in the banner of Howard Stern's Web site, www.howardstern.com.

It has never been easy for Howard Stern.

Certainly the self-proclaimed King of All Media has had his battles with the Federal Communications Commission on numerous occasions.

But lately the shock jock seems to have a target on his back, with the FCC taking shots in all directions.

After the infamous "accidental" Janet Jackson breast-baring during the Super Bowl halftime show, many feel that Stern is the main target in the FCC's newest crusade to clean up the airwaves.

"Since the Janet Jackson thing, it seems like there's this huge monster that's been created that is this religious-right fanatical group that wants to be fed something," said Artie Lange, a radio sidekick on "The Howard Stern Show."

"And a lot of people are trying to feed it 'The Howard Stern Show.' "

Already the FCC has levied strict fines on stations airing content it deems offensive and/or indecent from Stern's syndicated morning radio show, which is heard in Las Vegas from 3 a.m. to 10 a.m. on KXTE 107.5-FM.

One such show from April 9, 2003, in which Stern and a guest discussed Sphincterine, a hygiene product similar to toilet paper, resulted in a $495,000 fine against Clear Channel Communications Inc. nearly a year later, which owns several stations that broadcast "The Howard Stern Show."

The media conglomerate paid the fine and, ultimately, dropped Stern's show from its six stations that aired the program, including such markets as Pittsburgh, San Diego and Miami.

"Mr. Stern's show has created a great liability for us and other broadcasters who air it," said John Hogan, president of Clear Channel Radio, a division of Clear Channel Communications.

"The Congress and the FCC are even beginning to look at revoking stations' licenses. That's a risk we're just not willing to take."

Hogan went on to say: "We had hoped to return Mr. Stern's show to the air free from indecent content. Unfortunately, the FCC's latest action, combined with deafening silence from the Stern show on their future plans to comply with the law, leave us no choice but to abandon the program for good."

Stern, who broadcasts live from the Hard Rock Hotel from 2 p.m. to 6 p.m. Tuesday through Thursday on KXTE (shows will be replayed nationally the following morning), maintains his being yanked off Clear Channel was politically motivated.

Clear Channel's political action committee and its employees have donated $265,800 to Republicans for the 2004 election season, more than any other broadcaster, according to the Center for Responsive Politics, a nonpartisan research group.

And in a posting to his Web site, howardstern.com, Stern likened the Clear Channel decision as another example of a "witch hunt" against him by the Bush administration.

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

Lange agrees that the anti-Stern effort is politically motivated.

"The timing is perfect with the whole thing. When (Howard) started talking against Bush is when Clear Channel took us off their stations," he said in a recent interview from his home in New York. "And they're definitely in bed with the Bush administration."

While in Las Vegas for the recent National Association of Broadcasters conventions in April, FCC Chairman Michael Powell denied such accusations at an informal question-and-answer session.

"I think there's a misconception that this is something new," Powell said. "Every commissioner has enforced the statutes to varying degrees, but nonetheless has enforced it."

Powell said in 2002 the FCC received 14,000 indecency complaints from the public. That number rose to 250,000 in 2003. And just four months into 2004 the FCC has received 540,000 complaints.

But even Powell acknowledged those numbers might be skewed.

"There is a distinction between the number of complaints and the number of complainers ... The use of numbers is a difficult thing. You can e-mail me and spam me quite rapidly," he said. "People who have the other (approving) view tend to be less motivated. There is a tendency in our system to focus on the one making all the noise.

"I'm responding to public concerns."

But not everyone is convinced of that.

Tony Fargo, University of Nevada, Las Vegas assistant professor of mass communication, agreed with Powell that some commissioners are more strict with their enforcement of the rules.

"But what (Powell) didn't point out is he didn't enforce them for some time," Fargo said. "I didn't see him making a big effort and enforcing indecency rules until after the Super Bowl and all the outrage after that."

Regardless of the reason behind the outcry, the FCC's sudden emphasis on indecency is not unprecedented, Fargo said.

"It happens in election years quite often, quite frankly," Fargo said. "Unfortunately, Janet Jackson either accidentally or on purpose provided a catalyst for this current ballot of outrage that we're hearing from Washington.

"But if she didn't do it, somebody else would have and it probably would have been (Stern)."

Stern wars

Stern's battle with the FCC is nothing new.

Enter his name on the FCC Web site search engine, for example, and you'll find a case from May 20, 1994, in which Infinity Broadcasting, a division of Viacom, which syndicates "The Howard Stern Show," was fined $200,000.

The fine was the result of a Stern show the FCC said contained language "that describes sexual activities and organs in patently offensive terms. Because the material aired at times when there was a reasonable risk that children may have been in the audience, it is legally actionable."

And in 1995 Infinity paid $1.7 million in fines to settle various violations by Stern.

While Stern's employer pays the price, the shock jock has nonetheless managed to push the boundaries of radio and freedom of speech in ways few others on radio had before.

"There's no question that Howard was a pioneer. And pioneers are never appreciated in their own time," Fargo said. "But it remains to be seen whether Howard will be remembered as someone who expanded the boundaries of free speech or as someone who lowered the level of civil discourse."

"I guess the question then becomes, 'Was he a pioneer in territory that nobody should have explored to begin with?' "

But the pioneer might be in jeopardy of losing his show.

Clear Channel dropped Stern because of the fines. And already there's a bill in the Senate that would increase the maximum fines from $27,500 to $500,000 for a third offense.

Clearly there are those in Congress trying to better arm the FCC to stop what Powell said is "the decision of a few to push the line."

Stern has retaliated by posting news stories on his Web site that decry what he calls the "hypocrisy" of the FCC.

For example: He cites a recent rebroadcast of an "Oprah Winfrey Show" episode in which she and a guest discussed teen sex, including graphic descriptions of various sexual acts and their slang terms.

None of the content was edited or bleeped out, according to Stern's Web site.

Later Jimmy Kimmel ran the same clip of "The Oprah Winfrey Show" episode, to point out the lack of equality, and also wasn't censored.

When "The Howard Stern Show" aired the same "Oprah" clip, "almost the entire clip was bleeped!" according to the Web site.

"(Oprah and her guest) weren't doing it to send a message or to help kids. Her and her goofball friend were laughing about it ... and giggling like school girls," Lange said. "It was just for the sake of saying it to be funny, which is what our show is; just sort of boyish immature fun."

Consequently, Stern and Kimmel began a campaign pointing out what they consider the "double standard" applied to "The Oprah Winfrey Show" and "The Howard Stern Show" by the FCC.

As a result, the Smoking Gun Web site reports the FCC has received 1,600 letters complaining about the "Oprah" episode.

Lange said the FCC plans no action against Winfrey or her show.

"The FCC came out with a statement saying that Oprah is basically untouchable because she's beloved and 'The Howard Stern Show' can get fined because it's a lightning rod. Again, what the hell are they talking about?" Lange said.

"You can't just come out and say, 'One person is beloved,' so you can't fine them. That's retarded. If someone says something that's indecent ... she should be fined. Make it an even playing field."

Perhaps because of such a double standard, Stern says he has considered taking the FCC to court. The shock jock has also hinted on air that he'll take his show to satellite radio, which, as with cable, is not regulated by the FCC.

"That's all up to Howard," Lange said. "He's talked about it on the air. And the thought of doing an uncensored show is enticing, but I'm sure there's other factors that would weigh in before before he would make that decision."

In the meantime, "The Howard Stern Show" is saddled with a nearly two-minute delay, while the show's performers are vigorously self-censoring what they say.

"A year ago I was just saying whatever the hell I wanted," Lange said. "I was like, 'It's "The Howard Stern Show." Howard fought all these battles for me, so I can say whatever I want.' And we would say things that were nuts and funny and really edgy. Now I don't do that anymore. I'm scared to do it. And the show suffers for it."

Maybe the show has suffered, but not the ratings.

An estimated 20 million listeners tune in every morning to listen to "The Howard Stern Show," which is also videotaped and aired on the E! cable network.

During the winter quarter, which ended March 31, Stern scored major gains in the three biggest U.S. markets -- New York, Los Angeles and Chicago -- according to the Arbitron radio ratings service.

In New York and Los Angeles, Stern returned to No. 1 in several demographics, including 18-34 and 25-54. In Las Vegas, "The Howard Stern Show" is ranked No. 1 overall in its time slot.

Much ado ...

With the current FCC mandate against indecency and obscenity on public radio and TV, all roads seem to lead to Janet Jackson.

There's little doubt the Jackson outcry and subsequent furor has caused a new wave of stringent enforcement by federal regulators.

For example, during the "2003 Golden Globe Awards," U2 frontman Bono used the f-word during an acceptance speech for best original song.

Initially the FCC ruled that the singer used the word as an adjective, that it wasn't meant in a sexual manner and, therefore, wasn't indecent.

In March, not quite two months since the Super Bowl, the FCC overruled its staff and declared Bono's use of the expletive was indecent and profane.

"The 'F-word' is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language," the commission said. "The fact that the use of this word may have been unintentional is irrelevant; it still has the same effect of exposing children to indecent language."

The ruling is simply another way the FCC is asserting that it remains in control of the airwaves, even as many conservative groups question the commission's power over broadcasters, Fargo said.

"What you're seeing in Washington now is two things. You're seeing politicians who are essentially jumping on the decency bandwagon, which is never an unpopular thing to do in an election year. And the second thing you're seeing is the FCC reassure people that it is actually in control, that it hasn't let standards slide into the gutter," Fargo said. "What you have is a federal agency trying to justify its continued existence."

It was the Supreme Court that first ruled while indecent speech is protected under the First Amendment, it can still be regulated to keep it away from children.

Which is where the FCC comes in.

Traditionally what the FCC has done is to try to channel indecent speech between the hours of 10 p.m. and 6 a.m. -- what it terms the "safe harbor" -- when children are less likely to be in the audience, Fargo said.

Broadcasters can then air indecent language without fear of being fined by the FCC.

The trouble is determining the boundaries.

"The problem is, there's no guideline," Lange said. "We don't know what's decent or what's indecent. And Powell says stuff like, 'Well, if I spelled it out for you, it would be even worse.' I don't see how that's the case. If we knew there were certain things we couldn't say, we just wouldn't say them.

"Howard knows you can't say (expletive) on the radio. So he doesn't say it. Howard doesn't want to be taken off the air. He doesn't want the company he works for to be fined. He wants the company he works for to make money and to thrive. So if they could tell us what we can't say, we wouldn't say it."

While the FCC may be zealous in pursuing offenders such as Stern, a strict ruling and on everything that isn't fit for the airwaves remains a big dilemma for the government agency, Fargo said.

"The problem for the FCC is trying to figure out what actually is indecent, when do you draw that line," he said. "And we're seeing right now the FCC go a little bit crazy."

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