Radio, TV Stations Fighting FCC Allegation of Indecency

Attorneys for KZKC-TV Channel 62 in Kansas City and WYSP-FM radio in Philadelphia, both cited by the Federal Communications Commission for broadcasting alleged indecent programs, are fighting back.

KZKC attorney Tom Davidson said Friday that he watched the unedited theatrical version of the R-rated “Private Lessons” at home this week after his client, Media Central Inc., was cited for indecency by the FCC for broadcasting the comedy last May 26.

“I’ve reviewed the theatrical version of the movie, and I don’t feel the broadcast of the theatrical version is in violation of the guidelines cited by the commission and is not in violation of the (federal obscenity) statute,” he said. According to the movie’s producers, KZKC broadcast the unedited version. About 40 other stations across the country broadcast a version edited by MCA, distributor of the televised version. The MCA version depicted no frontal nudity.

Davidson said he rented the videocassette from Erol’s Video Club in Washington, D.C., which has a policy of not stocking X-rated or “hard” R-rated movies.

Still, he would not say whether he would categorically deny the FCC’s claim that “Private Lessons” was indecent.

“I gotta tell you that it’s difficult to make that determination based on the complaint we received because it does not identify specifically in the broadcast what was indecent or objectionable to the commission. It’s vague and indefinite,” he said.

Media Central, a Chattanooga, Tenn.-based broadcast company that operates seven television stations in addition to KZKC, is under Chapter 11 protection of federal bankruptcy law. A violation of FCC indecency standards could jeopardize the company’s KZKC license during any future license renewal hearing.

The movie did not meet Media Central’s own standards of good taste, and those KZKC staff members who were responsible for airing it have left the station, said Media Central board chairman Morton Kent.

“Private Lessons” is a comedy about a wealthy 15-year-old boy, played by Eric Brown, who is left for a summer in the care of a chauffeur, Howard Hesseman, and who is seduced by a maid played by Sylvia Kristel.

The film, made in 1980 by Barry & Enright Productions, carried an R rating, which means that in movie theaters no one under 17 was admitted without a parent or guardian, according to the Motion Picture Assn. of America. It was edited for TV, but still contained “nudity in a sexual context,” according to FCC spokesman John Kamp.

In a separate case involving a Chicago television station this week, the FCC changed its longstanding policy of deferring to local courts or Justice Department rulings on questions of what is obscene. According to Kamp, the commissioners will detour the courts and Justice Department “in appropriate cases” and decide on their own whether radio and/or television broadcasts are obscene.

KZKC could be the first station the FCC sanctions for obscenity under the new policy because its “Private Lessons” broadcast allegedly contained explicit sex and was aired during prime time when children may have been in the audience.

“I don’t want to use one of the seven dirty words, but it stinks,” said Media Central’s Kent.

Steve Lerman, attorney for the Philadelphia and New York radio stations over which morning drive-time deejay Howard Stern broadcasts, said he expects the federal Court of Appeals in Washington, D.C., to set a schedule of hearings on Stern’s challenge of the FCC ruling within 30 days. Stern was cited for allegedly violating indecency standards in 1986 not by uttering four-letter words but by innuendo.

Lerman said Stern was chastised by the commission for his often ribald satirical style, including a reference to “sodomizing (puppeteer Shari Lewis’) Lambchop.”

“If he ever did (actually utter four-letter words over the air), I’d wring his neck and he knows that,” Lerman said.

Pacifica Broadcasting, which operates KPFK-FM (90.7) in Los Angeles, dropped its federal lawsuit against the FCC this week. The nonprofit foundation was reprimanded last April after KPFK aired an allegedly indecent play about gay sexuality.

“We dropped our appeal because . . . the FCC not only removed any legal sanction against us, they also made clear that no challenge could be brought against us at (broadcast license) renewal time because we broadcast ‘Jerker,’ ” Pacifica executive director David Salniker said.

He said the FCC issued a formal indecency ruling Dec. 29 that attempted to clarify all of its actions of the past year and one of the footnotes in that ruling excused, though it did not exonerate, KPFK for its August, 1986, airing of “Jerker.” Unlike Howard Stern’s drive-time patter, the play contains four-letter words and explicit descriptions of homosexual acts.

But, unlike Stern, “Jerker” was broadcast after 10 p.m. and was geared for an adult audience, Salniker said. Until the FCC’s April 16 announcement accusing Stern, KPFK and a Santa Barbara college station of indecent broadcasting, the hours from 10 p.m. to 6 a.m. were understood by radio and television broadcasters to be a “safe harbor” for adult-oriented material.

The commission now has established midnight to 6 a.m. as a “safe harbor,” but continues to refuse to give any specific definition of broadcast indecency.

For the moment, KPFK and the other four owned-and-operated Pacifica stations will adhere to Pacifica’s strict guidelines forbidding on-air programmers to broadcast virtually any reference to human sexual or excretory functions. That ban will probably be lifted after a Pacifica board meeting in May, Salniker said.

KCSB-FM, the University of California student station in Santa Barbara, is the only one of the three radio outlets censured in the April 16 indecency rulings that has not gone to court.

According to KCSB manager Malcolm Gault-Williams, the station now restricts most of its adult-oriented programming to the midnight-to-dawn “safe harbor,” with announcements at the beginning of each hour warning listeners that the programs might contain “objectionable material.”

“We are now internally checking on how the indecency ruling affects our public affairs programming, however,” Gault-Williams said.

KCSB broadcasts a talk show called “Speaking of Sex” that makes specific reference to sexual organs, and Gault-Williams said he has been asked by a UC Santa Barbara administrator to get a ruling from the University of California legal counsel on whether it’s all right to mention such words over the air.

Pacifica will continue to pursue Freedom of Information legal actions against the commission, Salniker said.

Pacifica and the American Civil Liberties Union officials say they will keep suing for memos, reports, minutes and other FCC documents that might explain why the commission shifted its official policy to active prosecution of indecent broadcasting after 10 years of paying little attention to the issue.