Radio Stations Should Challenge FCC in Court

I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion.

--Thomas Jefferson

The then 77-year-old ex-President could have been directly addressing the latest free speech crisis precipitated by the Federal Communications Commission’s $105,000 fine leveled against radio station KLSX-FM for airing what the commission considered indecent material during Howard Stern’s top-rated morning program. In addition, three other Stern affiliates could face potentially equivalent fines, thus totaling more than $400,000 (“FCC Probes Three More Stern Outlets,” Calendar, Oct. 30).

Two years ago in Counterpunch (July 30, 1990), I urged radio stations that had been fined by the FCC to refuse to acknowledge the commission’s right to subjectively issue an interpretation of indecency, and instead let the FCC challenge them in court to prove the material was “indecent.”

Unfortunately, almost all of the cited stations paid the FCC fines, paving the way for an emboldened commission to continue its bid to function as a national nanny. Equally ominous is the FCC’s new national standard “for the broadcast medium” that, in effect, will similarly apply its interpretation of indecency to Los Angeles and rural Mississippi. Unbelievable.

The fine against KLSX-FM parent company Greater Media Inc. has again demonstrated the lack of a thoughtful interpretation of the First Amendment by an inappropriate enforcement of the FCC’s regulatory authority. Moreover, the FCC’s indecency broadcast standard is at best vague and does not give sufficient guidance to cover the type of language or material that will be found indecent by the FCC.

Broadcasters’ only recourse is to refuse to pay the fines and make the FCC abide by a court ruling.

The courts have recognized that there are three distinct, protected interests of the First Amendment involved here:

* The radio station (the licensee).

* The speaker (the announcers).

* The listeners’ right to receive.

In addition, the Supreme Court has ruled that indecency cannot be based on portions of a work taken out of context, but rather on a work “taken as a whole.” Furthermore, the high court has ruled that “words that are commonplace in one setting are shocking in another . . . (and) one occasion’s lyric is another’s vulgarity.” So, clearly, indecency must be judged on a local level.

Whether you find Howard Stern hilarious or disgusting is not what’s at issue here. It’s clear that the commission wants to shut down shows like Stern’s across the country and use him as an example. Like Lenny Bruce in the ‘60s, Stern has become a target. The FCC has decided that despite the fact that millions of people listen to Howard every day (he’s No. 1 in at least two major markets, Los Angeles and New York), only a small percentage of complaints should carry more weight.

So, why haven’t radio stations challenged the fines?

* License renewal and thousands of other day-to-day services are controlled by the FCC. Although the commission is supposed to be objective and uninfluenced by pending disputes, it remains a very real concern that not paying fines will mean delay or worse.

* Expense. The cost of litigation greatly exceeds paying the fines.

Unless every radio station refuses to pay and requires the FCC to initiate judicial process to determine what is decent or indecent, the commission will get bolder in attempting to apply its national standard for what is suitable content.

If all American citizens are entitled to a trial to determine their guilt or innocence, why shouldn’t each radio station have the opportunity for an objective ruling by an impartial, local judge to determine whether it has aired “indecent” material.

If challenged everywhere, this process will prove expensive and time-consuming for the FCC, and maybe the commission will get the message that this area should be left alone.

However, unless radio stations unite in defending their right to entertain and inform their audiences by local community standards, the FCC will continue its dangerous curtailment of First Amendment rights.

This is a much broader issue than whether you love or hate Howard Stern. It has profound implications not only for broadcasters, but for all of the entertainment industry and each American as well.