Howard Stern unplugged

With the government escalating its war on radio free speech, the shock jock's days are numbered.

Published April 14, 2004 11:57PM (EDT)

For the past several weeks shock jock Howard Stern has been insisting that his days on the radio dial are numbered. And based on recent events, he might be right.

Last Thursday Stern was permanently kicked off six stations owned by Clear Channel Communications, the country's biggest radio chain, after the Federal Communications Commission slapped the media giant with a half-million-dollar fine for airing a Stern program on April 9, 2003, that was deemed offensive. With the FCC suddenly adopting harsher guidelines for indecency enforcement and with legislation pending before Congress that would jack up those fines into the seven- and possibly eight-figure range as well as threaten license renewals, Stern's daily doomsaying about his broadcasting demise can no longer be dismissed as self-involved chatter.

"They're executing him," says Michael Harrison, publisher of the radio industry's Talkers magazine. "The government has unleashed a round of volleys that will drive him off the air."

After years of a carefree enforcement attitude toward indecency, the FCC, pressured by the Republican Congress, is ushering in a new puritan era for broadcasters. Along with the stream of indecency fines being levied by the government, industry leader Clear Channel has adopted a zero tolerance policy and recently fired three jocks for offending listeners. Meanwhile, Victoria's Secret is canceling next year's prime-time lingerie fashion show partly out of fear of newly fanged TV censors. Advance reports also indicate that next fall's lineup of new TV shows will back away from edgier content in order to avoid the FCC's wrath. And now Congress is considering a bill that would impose fines of up to $500,000 not just on station owners, but artists if they say or sing anything indecent on the radio. (Even FCC chairman Michael Powell has balked at that provision in the legislation, suggesting it raises serious First Amendment questions.)

"The indecency debate is traditionally a pendulum that swings -- there are reactions and overreactions," says Stuart Shorenstein, a communications attorney and partner at Wolf, Block, Schorr and Solis-Cohen LLP. "But this is clearly unprecedented. It's a witch hunt. In 2001, FCC chairman Powell said the government is not my nanny. Well, the nanny is back."

In Powell's defense, he did warn broadcasters last year about a growing concern over indecency, telling an audience at an industry convention, "At some point, enough is enough." But the ferocity of the crackdown and the way the commission has reinterpreted the already murky indecency guidelines in an election year has drawn fire from the radio industry.

"At the present time I don't understand the rules, nor can anybody else. They're obscure," complains Reed Hundt, who served as FCC chairman under President Clinton. "I don't defend Howard Stern. But I am saying in the absence of any kind of clarity of rules it looks like a political exercise. Even Howard Stern deserves some element of fairness. Because for the first time in decades the FCC now has enough power to put stations and people out of business and can do it on a whim. And it's not true that once you unleash government in an arbitrary manner [to monitor speech], you can confine it to the topic of indecency."

The Janet Jackson/Justin Timberlake halftime performance at the Super Bowl on Feb. 1, featuring her infamous "wardrobe malfunction," kicked off the recent reaction. But the truth is that the incident was simply a flashpoint for a host of political, economic and cultural forces that have been waiting to explode.

Not only is the current debate unfolding during an election year, it comes on the heels of last year's bitter FCC debate over media consolidation, which created political problems for broadcasting giants like Clear Channel. "It's impossible to separate the [current controversy] from the business world and election-year politics," says Michael Bracy, director of government relations for the Future of Music Coalition, a Washington artist rights lobby. "There are so many things at play, it's difficult to determine who's pushing what buttons."

The irony is that it was two televised pop culture moments that created the uproar over broadcast indecency. But radio -- and specifically Stern -- have taken the brunt of the enforcement crackdown. Early last year U2 lead singer Bono used the F-word during a cheeky acceptance speech at the Golden Globe Awards show, crowing, "This is fucking brilliant." Then Janet Jackson did her Super Bowl dance.

For Stern, who hadn't been fined by the FCC in nearly a decade despite his daily raunchy shtick, the unexpected turn of events could mean the end of his broadcast career. The specter of further fines may make it impossible for him to maintain a syndicated audience. Still, according to some industry observers, some radio programmers will try to hold onto his show as long as they can. "Morning shows are hard to find and morning shows that effective are even harder to find," says Sean Ross, vice president of music and programming at Edison Media Research and the former radio editor at Billboard magazine. "I'd guess a lot of people will hold onto him as long as it's at all tenable."

The key is "tenable." If new penalties are passed by Congress, which would allow the FCC to levy fines of $27,500 per indecency violation, and if the commission regularly finds multiple violations within one program, as it did in last week's Stern ruling, and if a company carries Stern's show on six stations, then one indecency episode could cost a broadcaster $5 million, not to mention the possibility of losing the station license. The price of an FM license in major market today can surpass $200 million.

"In effect, the FCC's creating an atmosphere where nobody can afford to carry him because the possible fines are so expensive," says one industry veteran and former station owner. "The legal-brief-to-ad-dollars ratio is not even close. They'll shut his ass down."

The recent barrage of fines has galvanized Stern, turning the former Republican sympathizer into a fierce critic of not just the FCC but of President Bush as well. "I strategize more about my radio show than Bush does about the war in Iraq," Stern quipped on Monday. The jock claims Bush has sold out to the religious right and ordered the FCC to crack down on broadcasters to appease this political base. He saves many of his most stinging barbs these days for Attorney General John Ashcroft, whose fundamentalist critique of popular culture puts Stern in mind of the black-robed jihadis America is fighting in the Middle East.

Yet the politics of indecency are not so simple. For years, it has been the two Democratic FCC commissioners, Michael Copps and Jonathan Adelstein, who pressed for tougher indecency fines, while Powell, a libertarian-leaning Republican, adopted a more hands-off, let-the-marketplace-decide approach to the problem. During the fierce debate last summer about whether the FCC should allow even further media consolidation -- a trend that Powell supports -- the Democratic commissioners argued that rampant consolidation had already led to raunchier programming, particularly in radio, where corporate owners rarely operate locally and often aren't sensitive to community standards.

Lingering effects from the debate last year -- when the FCC, and Powell in particular, were blindsided by public and congressional opposition to further media consolidation -- may be at work in the indecency crackdown today. "Powell absolutely got roughed up last summer," says Gene Kimmelman, director of the Washington office of the Consumers Union. "He was just out of step with mainstream America with concerns about media consolidation. He's been extremely sensitized to his precarious political position with Congress and the American public. The White House was not pleased they had to spend so much political capital over media consolidation. Now he's scrambling, particularly with the presidential election coming up, trying to prevent concern about raunchy programming from trashing President Bush's record."

"I call it the Barca-lounge convergence," adds Hundt. "Powell jumped up from his reclined position in which he watched the Super Bowl and discovered the airwaves were full of trash, and he did it during the beginning of the election year."

Powell is also feeling heat from some conservative media lobbyists who claim his new moral vigilance is not authentic. "Michael Powell isn't sincere about cleaning up broadcast TV and radio," complains Phil Burress of Citizens for Community Values. Along with leaders from two dozen other family values groups, Burress met with Powell last summer to complain about indecency on the airwaves. "Powell wouldn't give us the time of day and kept looking at his watch," Burress complains. "Now his finger is in the air and he's wondering which way the wind is blowing."

In its ruling against Clear Channel last week, the FCC also took the unprecedented step of ordering its enforcement bureau to investigate whether Infinity Broadcasting, which syndicates Stern and carries his show on 18 stations, also violated indecency rules by airing the same April 9, 2003, program that got Clear Channel in trouble. If so, the FCC fines against Infinity could total $1.5 million.

"The FCC is moving toward a system where the burden of proof is on the broadcasters, even though nobody in the audience filed a complaint," says attorney Robert Corn-Revere, a First Amendment specialist who once served on the staff of former FCC commissioner James Quello.

Broadcasters complain that the FCC has suddenly changed its views on what constitutes offensive language. In its initial defense of Stern, Clear Channel lawyers noted, "Several times in the past, the agency has found no actionably indecent unmistakable reference to various types of sex and other material vastly more explicit than the material contained in" the Stern complaint. They pointed to a parody of a Britney Spears song that Stern aired in 2002, with the lyrics, "I'm pulling out now, I don't want your ... in my mouth. I don't' want to taste you ... I'm not a swallower, I'm not a swallower." The FCC ruled that bit was not indecent.

But the commission last week waved off past examples, ruling: "To the extent that the staff may have erred by determining that the material in those cases was not indecent, those decisions are not binding on the commission." In other words, complain broadcasters, don't go by how we've enforced indecency in the past, go by how we're enforcing the rules at this very politicized moment.

But supporters of the indecency crackdown suggest broadcasters only have themselves to blame for airing "morning zoo" programs that air interviews with strippers and prostitutes and feature raunchy patter and sound effects. "If you break the speed limit every day of your life and you know it's wrong, just because you're getting away with it doesn't make it right," says Burress.

Still, many broadcasters fear the country is on the verge of a new puritanism. Says one radio executive, who requests anonymity out of fear of political retribution: "This is the beginning of a scary misuse of government power to intimidate people."

By Eric Boehlert

Eric Boehlert, a former senior writer for Salon, is the author of "Lapdogs: How the Press Rolled Over for Bush."

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