FCC Firm on Decency Code; ‘Howl’ Muffled

While Pacifica Broadcasting howled about government censorship of Allen Ginsberg’s classic beat poem “Howl” on Thursday, the Federal Communications Commission held firmly to its 10-month-old policy on broadcast indecency.

The nonprofit foundation, which operates KPFK-FM (90.7) locally and four other public radio stations throughout the United States, had originally planned to air Ginsberg, a Los Angeles resident, reading his epic on the 30th anniversary of its publication. “Howl” contains four-letter words and references to pederasty and sexual organs that might be interpreted as “patently offensive” under the FCC’s April 16 guidelines.

Commercial and public broadcasters have complained that the guidelines are far too vague. Nevertheless, an FCC spokesman said Thursday there are no plans to clarify or alter the new standard which bans “patently offensive” references on the air to sexual or excretory functions or organs.

Instead of broadcasting “Howl,” KPFK on Thursday aired the hourlong tape “Why Pacifica Can’t Broadcast ‘Howl’: A Journey Through 30 Years of American Censorship.”

The previous day, FCC Chairman Dennis R. Patrick told a luncheon audience of broadcast industry executives in Beverly Hills that his agency is simply enforcing a decades-old federal obscenity law as it was passed by Congress and later interpreted by the Supreme Court.

“Individual broadcasters have to make judgments with respect to what they’re going to air,” Patrick told the audience.

“The commission won’t make a decision prior to a broadcast,” FCC General Counsel Diane Killory’s spokeswoman, Maureen Peratino, told The Times on Thursday. “With regard to whether or not a broadcaster airs something, that is totally within the licensee’s discretion. The commission would not step in until it had a complaint before it and then it would act in the situation.

“I’m not familiar with the poem ‘Howl’ and neither is the general counsel, and I will not address whether it meets the FCC’s indecency standards,” she said. “Pacifica came to us several months ago (to get the FCC’s approval to broadcast James Joyce’s ‘Ulysses’) and we turned them down.”

An unexpurgated dramatization of the Joyce classic was aired without incident on Pacifica-owned WBAI-FM in New York in June.

Two months earlier, the FCC had formally censured KPFK for airing excerpts of “Jerker,” a play about gays and AIDS that included many references the FCC interpreted as obscene or indecent. In addition, Killory forwarded the KPFK case to the Justice Department for possible prosecution. The Justice Department declined to prosecute, but the listener-sponsored Pacifica Foundation spent more than $50,000 defending itself, according to Pacifica Executive Director David Salniker.

Pacifica’s attorney, Carol Sobel of the American Civil Liberties Union, said Patrick’s comments on the FCC policy sounds as though the federal regulatory agency does not intend to become a censorship board because it leaves the decision to broadcast to the station. In fact, said Sobel, the FCC’s right to revoke a broadcast license chills free speech and effectively does censor broadcasters who have to second-guess what the five presidential appointees to the the commission might or might not find “patently offensive.”

“They only tell you that you’re going to get in trouble,” Sobel said. “If you’re going to punish people and take away their license, you’re going to have to tell them ahead of time what it is they might do that is going to incur the wrath of the FCC.”

Since 1978 the FCC and the nation’s 10,000 television and radio broadcasters relied on a Supreme Court decision that labeled seven so-called “dirty words” uttered by comedian George Carlin in a recording as the “patently offensive” sexual or excretory references that could not be broadcast. Shortly after that decision, the FCC established a curfew of 10 p.m., after which broadcasters were allowed to air adult-oriented material that might be indecent and, therefore, unsuitable for children.

Since April, the FCC has declared both the 10 p.m. curfew and the circumscribed interpretation of the seven obscene words, obsolete. In addition to censuring KPFK, the FCC’s Killory announced the expansion of the commission’s concept of “patently offensive” broadcasting to include:

Sexual innuendo in music, as illustrated in the lyrics of a punk rock song called “Makin’ Bacon” that was aired over KCSB-FM in Santa Barbara.

Off-color drivetime patter of so-called “shock jock” deejays, such as New York City’s Howard Stern. (Once the most popular morning drivetime radio personality in both New York and Philadelphia, Stern dipped to fifth place in the most recent Arbitron listener ratings survey announced this week.)

In November, the FCC clarified its April decision to the extent that “adult-oriented” programming can now be broadcast between midnight and 6 a.m. But the further definition of “patently offensive” material that the National Assn. of Broadcasters, all three major television networks, the Motion Picture Assn. of America and half a dozen other industry organizations had hoped to hear from the commission was not delivered.