Radio Daze: FCC Moves Indecency Issue to Front Burner : Commission Caught in a Cross Fire Between First Amendment Champions and a ‘Growing Public Outcry’ for Action

The subject of indecency makes the new chairman of the Federal Communications Commission visibly uncomfortable.

“Let me say first that this is a very difficult area,” said Dennis Patrick, the otherwise cool, shrewd young lawyer from Orange County.

He fidgeted a moment, pondering the contradictions of free speech and broadcast censorship. Then he nodded to himself and launched into it.

“I would say that this Federal Communications Commission is second to none in the history of the commission in terms of its sensitivity to First Amendment rights,” he continued steadily. “And therefore, we do not, as a philosophical matter, enjoy or look for opportunities to be involved in broadcast content.”

Patrick paused for one careful moment, glancing around the lobby of the Monterey hotel where he had just finished speaking to 500 members of the California Broadcasters Assn. about virtually every important communications issue of the day. Except one: the regulatory agency’s controversial crackdown in April against indecency on the radio, which has left the industry in a quandary over what language is safe to broadcast and whether the government is trampling on the medium’s freedom of expression.

Then Patrick continued.

“However, all of that having been said, obscenity has never been protected by the First Amendment and indecency is subject to reasonable time, place and manner restrictions, even in the print media, which is my standard for First Amendment jurisprudence. And it’s the standard that I believe ought to be applied to the electronic press.”

He was on a roll, his words coming faster, more self-assured, as if he had given this sermon many times before.

“So. The fact is that, whereas the commission is very sensitive to First Amendment rights and is very disposed to give broadcasters a maximum amount of discretion generally with respect to how they program their stations, as a constitutional matter, obscenity is excepted from that category of speech which enjoys First Amendment protection, No. 1.

“And No. 2, more specifically in response to your question, there is a statute on the point. It’s 1464 of the Criminal Code, which prohibits the broadcast of obscene and indecent speech, and the constitutionality of that statute, even as applied to indecency in the context of the broadcast medium, has been upheld by the Supreme Court.”

He sat back in his chair, pleased that he had gotten through it one more time.

But what about indecency? he was asked. Obscenity seems pretty clear by comparison. Obscenity has a form, a standard, a definition. If it isn’t spelled out, at least there is something of a consensus. Obscenity is child pornography, penetration, bestiality.

What about indecency?

“I really don’t want to comment on how the standard might be made more specific at this point in time except to say that the commission has no interest in chilling protected speech, and broadcasters do have a legitimate concern about and interest in as much certainty as can be provided,” he said.

The FCC will provide that certainty, Patrick said. Soon, at the behest of 15 major broadcast organizations including all three major television networks, National Public Radio and the Motion Picture Assn. of America, the commissioners will wrestle with the definition again, he said.

Does he know when the FCC will attempt to redefine indecency?

“I do not, although I can tell you it is on the front burner,” he said. “It’s something we are actively looking at now. It’s a very difficult area.”

ISSUE WON’T GO AWAY

Indecency is the issue that won’t go away.

Indecency has a long, colorful American history ranging from James Joyce’s “Ulysses” and Jane Russell’s cantilevered brassiere in Howard Hughes’ “The Outlaw” to Lenny Bruce’s comedy routines and Linda Lovelace’s oral acrobatics in “Deep Throat.”

But defining just what indecency is has remained as inexact a science as politics or religion. What offends one person does not offend another.

In 1978, the Supreme Court handed down a decision that upheld an FCC finding that seven words uttered repetitively by comedian George Carlin in a comedy routine broadcast over WBAI-FM in New York had been indecent. The majority opinion went on to caution owners of the nation’s television and radio stations not to broadcast “language or material that depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.”

And that was where the matter stood until four months ago, when Patrick and his four fellow commissioners moved to broaden the definition by publicly condemning the Aug. 31, 1986, broadcast of the homosexual play “Jerker” on KPFK-FM in Los Angeles; the Oct. 27, 1986, broadcast of morning “shock jock” Howard Stern’s comments over WYSP-FM in Philadelphia, and the July 26, 1986, broadcast of the sexually explicit song “Makin’ Bacon” performed by an obscure British punk band called the Pork Dukes over KCSB-FM in Santa Barbara.

The FCC announced in an April 29 public notice in the Federal Register that the rules would be changed on indecent broadcasting to reflect the actions it took against the three stations.

Among other things, the so-called “seven dirty words” were no longer to be the only measure of what could or could not be said on television and radio, and a long-standing “curfew” that allowed broadcasters more freedom to play questionable song lyrics or dabble in sexual subject matter after 10 p.m. was abolished.

The FCC avoided defining indecency, but its Mass Media Bureau chief, James McKinney, who left last month to work in the White House communications office, offered a couple of hints in May, a few weeks after the new FCC guidelines were announced:

--Innuendo or double entendre might no longer be safe. If a radio or TV audience understood that a deejay or talk show host was referring to sexual or excretory functions even though he or she was not using a “dirty” word, the FCC might take action.

--”Pet” words could also get a broadcaster in trouble. A deejay such as WYSP’s Stern, who might refer to his own sexual organ or sidekick Robin Quivers’ breasts by substituting the name of a vegetable, could endanger the station’s license.

In the KPFK case, the FCC went so far as to suggest that “Jerker” might be criminally obscene and referred the complaint to the Justice Department for prosecution. KPFK’s parent company, the Pacifica Foundation, struck back by joining forces with the American Civil Liberties Union and filing its own petition with the federal Circuit Court of Appeals in Washington, D.C.

The question posed in the petition: What constitutes indecent broadcasting?

On June 1, 15 other broadcast organizations filed their own petition for rehearing before the FCC on the indecency question. The National Assn. of Broadcasters also filed a separate petition, acknowledging that indecent speech on radio and television was contrary to the public interest and that the FCC had the authority to apply a “properly drawn” indecency standard.

But, again, the NAB asked the impossible question: What is indecency?

Since then, the FCC has remained officially mum on the subject. Commissioner James Quello publicly acknowledged during a June speech to broadcast executives in Atlanta that “the commission is caught in a crossfire” between First Amendment champions and a “growing public outcry for action against indecency on the air.”

Last month, the Justice Department announced that it would not prosecute KPFK for playing “Jerker.” While applauding the tough new FCC indecency standards, Justice Department spokesman H. Robert Showers said he did not believe prosecution would be successful because the FCC had used the more relaxed seven dirty words standard from the 1978 Supreme Court decision until April 29, 1986.

“That is a question that I can’t second guess,” said FCC chairman Patrick. “It is a question of prosecutorial discretion. They evaluated the case and for whatever reasons decided that it was not an appropriate case for them to pursue. I think the commission fulfilled its responsibilities by taking the action that we did and by referring the matter to the Justice Department, and I leave to them those judgments and I won’t comment further.”

TESTING THE LIMITS

In the absence of a definition, some radio stations continue to test how far they can go.

KPWR-FM (105.9) deejay Jay Thomas, for example, tells his morning audience that he is launching a condom helicopter drop to make Los Angeles safe for sex and suggests that he is urinating into a bottle of Corona beer, which was recently plagued by false rumors that it might be contaminated by urine.

Nationally syndicated deejay Barry (Dr. Demento) Hansen, who airs his program locally from 8 p.m. to 10 p.m. each Sunday over KLSX-FM (97.1), features songs whose lyrics equate brands of beer such as Mickey’s Big Mouth and Schlitz and fast-food products from McDonalds and Dairy Queen with sexual activities. He recently played one of them during morning drive time when he filled in for Phil Hendrey.

Other stations have moved in the opposite direction, implementing new policies on admissible language and otherwise stepping up self-censorship efforts to avoid running afoul of the FCC.

Meanwhile, debate rages over the propriety of the FCC action.

“The new interpretation of the Carlin case which the FCC has come up with is quite simply unconstitutional and what they’re really aiming at is thought control or censorship,” said David Salniker, president of the Pacifica Foundation, which operates KPFK-FM (90.7) in Los Angeles and stations in New York, Berkeley, Houston and Washington, D.C.

Moreover, he sees the hand of the religious right in this action and likens it to efforts to have certain books banned from schoolrooms and public libraries.

But the groups fighting for what they see as decency deny that censorship is their goal.

“We’re not trying to force our morals on Howard Stern or anybody else, but those are the public airwaves and anybody can hear him,” said Allen Wildmon, public relations director of the National Federation for Decency, which claims 320,000 members nationwide and was among those complaining to the FCC about Stern. “True censorship requires prior governmental restraint. It’s like saying ‘Hey, Penthouse, you can’t publish!’ or ‘Howard Stern, you can’t say that!’ That’s true censorship. Just because we express our ideas and opinions on a subject doesn’t make us censors.”

Moreover, the FCC was enforcing a statute against indecency that already was on the books, said Paul J. McGeady, general counsel of Morality in Media Inc., a New York-based watchdog organization that helped a Philadelphia resident officially complain about Stern’s program.

In its monthly newsletter (to a claimed circulation of 50,000), the 26-year-old Morality in Media openly encourages its members to tape indecent radio and television programs and mail them directly to Dennis Patrick at the FCC.

HOW TO DEFINE

At 35, FCC Chairman Patrick is no naif. He went to UCLA Law School, did five years apprenticeship with the Los Angeles law firm of Adams, Duque & Hazeltine and moved right into the White House as a legal counsel after Ronald Reagan was inaugurated in 1981.

In 1984, Reagan appointed him to a seven-year term as a commissioner. Last spring, Patrick replaced Mark Fowler when the former FCC chairman’s own commission term came to an end.

Like his predecessor, Patrick is a strong believer in deregulation: a hands-off approach to overseeing the nation’s 10,046 radio and 1,254 television stations.

“I think that the facts suggest that while the marketplace is not perfect and while surely there is room for improvement, the public--which is my interest--is better served today by the American broadcasting industry than it has ever been served before,” he said. “There is more programming diversity. There is more news and informational programming. There is more variety. There are more competitors. There are more voices. In almost any category you can think of, the public is better off today than it was in the past.”

Re-imposing the will of the FCC commissioners on broadcasters will only damage programming, he said.

“It seems to me the system improves by and through a process of creating a vigorously competitive market that creates the maximum incentives among broadcasters to serve the public rather than improving through the promulgation of regulations out of Washington that may be appropriate for one community and wholly inappropriate for another community.”

How does deregulation square with the indecency crackdown?

Patrick sighed.

Neither he nor any of the other current commissioners will cave in to either the right or the left in making their decisions, he said.

“I think that this commission has a general feeling that whereas this is a very difficult area and whereas the definitional problem continues to be the problem, that position that indecency can be defined as the seven dirty words that happen to be at issue in the litigation that gave rise to the case is an intellectually and legally untenable position,” Patrick said.

He drummed his fingers on the edge of his chair.

“It doesn’t make it easier,” he said. “In fact, it’s more easy to simply rely on a simplistic and narrow definition but, as I say, this commission feels generally that that position is intellectually and legally non-sustainable.”

He was offered a stick of gum and he accepted gratefully, relaxing long enough to unwrap it and chew some of the tension out of the conversation.

“It is a difficult area,” he said.