So Far, ‘Shock Jock’ Stern Has Had Last Word : His raunchy radio patter creates a dilemma for the FCC’s watchdogs in the era after deregulation.

Howard Stern, the nation’s best known “shock jock,” has created a huge radio audience for himself with nonstop banter that includes acerbic comments, scathing put-downs and tasteless, often raunchy, jokes.

But Stern also has created a dilemma for the Federal Communications Commission.

Five years ago, the agency announced that it would finally enforce a longstanding ban on “indecent or profane” language on the airwaves.

Until then, the nation’s broadcasters could do almost anything so long as they avoided the “seven dirty words” made famous in a comedy routine by George Carlin and later ruled unacceptable by the Supreme Court. (Carlin, mocking society’s abhorrence of seven obscenities, repeated them in endless combinations.)

For the next decade, however, the FCC rarely invoked its power. Then, in 1987, it cracked down.

But stopping Stern has proven to be difficult. At first, the FCC tried a series of tough warnings. But each new crackdown seems to inspire Stern, who routinely goes beyond what many consider to be the barriers of good taste.

Stern’s repertoire includes talk of rape, masturbation and sex organs; he has been accused of being racist, sexist and homophobic.

Although offensive to many, this kind of material has proven to be a hit. His show is now in 10 U.S. markets and is the highest-rated morning broadcast in Los Angeles and New York.

How, then, can the FCC deal with a popular broadcaster who stretches the outer limits of acceptability? And if so many listeners find Stern appealing, can he really be violating public standards of decency?

BACKGROUND: Through most of the 1980s, the FCC, led by appointees of then-President Ronald Reagan, sought to deregulate broadcasting. The agency made it easier for owners to buy and sell stations and to move into new markets. Where broadcasters were once seen as holding a “public trust,” the Reagan appointees stressed free markets and free speech.

But in 1987, the agency began to shift direction, largely in response to listener complaints. The FCC published a new standard for judging indecency, defining it as material that “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards . . . sexual or excretory activities or organs.”

Broadcasters attacked this definition as hopelessly vague, but the federal courts upheld it. They ruled that the FCC can punish station owners who air indecent material during the day and early evening hours when children might be listening.

Last month, the FCC came down hard on Stern. It imposed a $105,000 fine on the owners of KLSX-FM in Los Angeles for 12 alleged indecent comments by Stern in late 1991. (It is also considering fines of up to $900,000 against Infinity Broadcasting Corp., which broadcasts Stern’s programs in the East.)

The agency reportedly is considering raising the stakes even higher by warning the radio stations that their licenses could be jeopardized if violations continue.

But some lawyers wonder if the FCC has gone too far.

“There is an element of selective prosecution and a personal animus. Stern has been baiting the FCC, and I think he’s gotten under their skin,” said Andrew Jay Schwartzman, executive director of the Media Access Project, a public interest group that closely monitors the FCC.

Others contend that, although Stern is often outrageous and offensive, his comments stop short of violating the law. “They’ve gone after him for (saying) a few things that wouldn’t have caused much problem if someone else had said them,” one attorney familiar with the FCC’s complaints said.

OUTLOOK: Like so much in Washington now, the next step in the battle between Stern and the FCC probably depends on President-elect Bill Clinton.

FCC Chairman Alfred R. Sykes, who has led the fight on indecency, says he will resign in January and allow Clinton to appoint his successor. Another commission seat may also soon be vacant.

The new appointees will have to decide whether to continue the policy of escalating fines, or perhaps go back to the old policy of looking more closely at those who hold broadcasting licenses.

Schwartzman contends that the deregulation of the 1980s led to the proliferation of outrageous and even indecent broadcasts in the 1990s.

He says: “They let in the entrepreneurs who are in it to make as much money as they can, rather than those who wanted to be broadcasters. And surprise: Look what we have now.”

America’s No. 1 ‘Shock Jock’

Personal: Howard Stern, 38; Lives in Long Island, N.Y.

Family: Married, two children.

Radio Markets: Albany, N.Y.; Baltimore; Cleveland; Chicago; Dallas; Las Vegas; New York; Los Angeles; Philadelphia, and Washington D.C.

Ratings: “The Howard Stern Show” is No. 1 in New York, Philadelphia and Los Angeles. It debuted in Los Angeles in July, 1991, and went to No. 1 a year later.