FCC CRACKING DOWN ON RADIO ‘INDECENCY’ : KPFK-FM Targeted for Broadcasting an Allegedly Obscene Play About AIDS

The Federal Communications Commission on Thursday asked the Justice Department to consider criminal prosecution of a nonprofit Los Angeles radio station that broadcast an allegedly obscene play about homosexuality and AIDS.

The crackdown on the Pacifica Foundation’s KPFK-FM was included among three unanimous actions by the commission markedly toughening its stance on broadcast content and “patently offensive” material on the airwaves--including sexually explicit song lyrics and so-called “shock radio” air personalities.

First Amendment advocates blasted the ruling, a surprising one from a commission that has held itself up as a champion of free speech for broadcasters.

The five-member FCC’s actions put all of the nation’s 12,000 radio and television stations on notice that the commission is expanding its definition of impermissible broadcasts beyond its famous “seven dirty words” case of more than a decade ago and plans to tighten enforcement over broadcasts of indecent and offensive material. Stations violating the new policy will face fines or loss of federal broadcast licenses.

“What we are doing here today is to correct an altogether too narrow interpretation of decency,” said commission member Dennis Patrick, who is expected to take over from deregulatory-minded FCC Chairman Mark Fowler next week.

In addition to citing KPFK-FM, the FCC issued written warnings to a station licensed to UC Santa Barbara and to a Philadephia commercial radio station that broadcast the popular program of “shock radio” personality Howard Stern.

David Salniker, executive director of the Pacifica Foundation, said the nonprofit group was “a little shocked” by the FCC’s action and claimed the commission’s decision was an effort “to make a statement satisfactory to the religious right of this country.”

Salniker said that the Sunday, Aug. 31, 1986, broadcast of “The Jerker” on the station’s regularly scheduled “I Am, Are You?” program conformed to all previous guidelines about sensitive programming, including airing after 10 p.m. when children presumably would not be present in the audience. The program also carried a warning about its content, he said.

He also said the play was “socially redeeming” and contained serious discussion of gay issues and the deadly acquired immune deficiency syndrome.

“We now find that (what) was permissible is literally charged to be a crime,” said Salniker, adding that Pacifica will “defend ourselves” against the charges.

The FCC, voting to refer the case to the Justice Department, said the the play, contained graphic depictions of sex acts between two men and described sexual and excretory activities and organs in a “patently offensive manner.” The FCC said the program as well as the play “may have crossed the line” of criminal obscenity.

Until Thursday, impermissible broadcast material was legally confined to “seven dirty words” made famous in a comedy routine by George Carlin. In 1975, the FCC ruled that Pacifica’s WBAI-FM in New York violated commission rules with a midday broadcast of the Carlin performance, which was heard by a father and his son who brought a complaint to the commission.

The U.S. Supreme Court upheld the FCC’s finding in a landmark 1978 case that, in part, said the time of day and exposure to children of the material was a significant factor in the station losing the case.

The commission said Thursday, however, that a 10 p.m. broadcast does not “necessarily render (an indecent program) permissible,” nor is the time period safe from the ears of children. (The commission staff cited local ratings that more than 300,000 Los Angeles-area teen-agers listen to radio between 7 p.m. and midnight on Sundays.)

Reagan-appointed Fowler, participating in what will probably be his last votes on the commission, said the panel “acted carefully in this area” and defended the moves. “It seems to me that there are much more important questions to be asked: ‘Is this the best use of broadcasting?’ ” he said. “Is this the way we want to entertain and inform and inspire people in the audience? Is this the legacy that you, the broadcasters, want to foster, preserve and bequeath?”

Noting the “telling irony” of the decision’s timing, Washington-based media activist Andrew Schwartzman said that Thursday’s rulings, “close out (Fowler’s) tenure by showing his true colors.”

Just two weeks ago, Fowler delivered a rousing defense of First Amendment freedoms for radio and television to the convention of the National Assn. of Broadcasters in Dallas. He denounced government interference in broadcasting and said: “I want to see broadcasters as free as newspapers and magazines to write, report and editorialize.”

The commission insisted Thursday, however, that its new, tougher standard of decency is consistent with obscenity prohibitions on print media.

Leading New York First Amendment attorney Floyd Abrams said the FCC’s action was “disturbingly insensitive to First Amendment principles.”

He added that “once we start permitting attacks on non-obscene materials and then expand the definition of what is ‘indecent,’ we really risk having the FCC act as a continuing super-censor of constitutionally protected material.”

The National Assn. of Broadcasters, representing 4,800 radio and 925 television stations, had no immediate comment on the FCC action. A spokeswoman said that the industry organization wanted to study it first. However, she quoted NAB Chairman Ted Snider, owner of two radio stations in Little Rock, Ark., as saying: “In general, we are concerned as an industry about indecency on the air and we recognize our responsibility to our listeners and viewers.But we also have concerns about First Amendment rights.”

“Indecency will be actionable if broadcast at times of day when there is a reasonable risk of children in the audience,” said FCC general counsel Diane Killory.”Determining what is indecent will not always be an easy decision to make, but we do not think that tough decision making justifies not enforcing the law.”

The other cases voted on Thursday involved KCSB-FM in Santa Barbara and WYSP-FM in Philadelphia. Both were issued written warnings.

The Santa Barbara station was cited for airing a rock ‘n’ roll song called “Makin’ Bacon” that contains sexually explicit lyrics. The song aired during a regularly scheduled 9:30 p.m. program. In addition to the written warning, the commission instructed its staff to determine whether UCSB exercises a sufficient degree of control over the station.

In the Philadelphia case, the commission issued a warning to Infinity Broadcasting Co., which owns 11 radio stations around the country, that Howard Stern’s morning program mixing humorous sexual innuendo and double-entendre with news, music and traffic and weather reports is “patently offensive as measured by contemporary community standards of the broadcast medium.”

Malcolm Gault-Williams, general manager of the Santa Barbara station, said UCSB “will be making some sort of censored records list” of objectionable material barred from broadcast.

“We felt all along,” he said, “that we were going by the existing guidelines. This is a sad day for the electronic media from all over the country.

Gault-Williams, a UC employee and the agent representing the university system’s regents at the station, said that “there is little that the university can do to control the content of studen expression.”

Mel A. Karmazin, executive vice president of Infinity, called the ruling a victory and said Stern’s show would continue with “absolutely zero” changes.

“Clearly we’ve won,” Karmazin said. “What they’ve said is that they’re not taking action against us.”

At a news conference in New York, Stern said, “I never thought that I pushed anything to the limit. I go on the radio in the morning to have fun. We make a lot of people laugh. Maybe some people in Mississippi are offended.”

After the decision, comedian Carlin said through a spokeswoman: “Originally, I never expected the ‘seven dirty words’ to cause such a stir. While the commission has tightened its restrictions on what can and can’t be said, my list has expanded to over 650 words.”

Abrams also said he was “more troubled” by the warnings given to the two stations than to its request that the Justice Department consider prosecuting KPFK.

Material such Howard Stern’s “is hardly decorous or appealing to most people,” Abrams said, “but it is constitutionally protected and audiences have a right to listen to it if they choose to. One can view this (the FCC warning) as much as an attack on audiences who wish to hear material of this sort as it is on the people who provide it to them.”

Crook reported from Los Angeles, and Pagano from Washington. Also contributing to this report was Times Staff Writer Jay Sharbutt in New York.