Broadcasters Divided Over Backing Stern

Broadcasting industry officials expressed shock at the stiff fine the Federal Communications Commission levied Friday against the company that employs “shock jock” Howard Stern but remained deeply divided over supporting the embattled radio personality.

“The consensus is that the FCC is wrong but nobody wants to go on the record about this,” said Jim Carnegie, publisher of the Radio Business Report, a weekly trade journal in suburban Washington. “People are really shocked and concerned.”

“There’s great concern among broadcasters,” said Kent Burkhart, chairman of his own Atlanta-based radio consulting company. “Howard Stern has an unusual gift of attracting a big audience . . . but broadcasters don’t want to get in a First Amendment battle with the FCC.”

The industry hand-wringing recalls the anxiety that gripped the five-member commission, which had agonized over Stern for weeks before agreeing Friday to fine his employer, Infinity Broadcasting Corp. of New York, $600,000 for allegedly indecent remarks that Stern made about a year ago.

Late Friday, Infinity’s lawyer said that no decision has been made about whether to appeal the fine, but he criticized the commission’s action as excessive. Infinity has refused to pay previous fines imposed by the FCC for Stern broadcasts.

Indecency is permitted 100% of the time in print but is heavily regulated in broadcasting, said Steve Lerman, Infinity’s attorney. “We will do our best to convince the FCC that the material is not indecent.”

But Lerman added, “Most broadcasters find the manner in which the commission is pursuing indecency regulations to be difficult for them.” The commission is too aggressive and its indecency standards “are vague,” he said.

Indeed, the commission’s action has raised concerns about whether financial penalties will have a chilling effect on broadcasters’ free speech. The $600,000 fine against Infinity is the largest issued by the commission against a radio station and comes one month after the FCC imposed a $105,000 fine on the owners of KLSX-FM in Los Angeles for 12 alleged indecent comments by Stern in late 1991. (The fine against Infinity covered the same remarks made in the KLSX case; Infinity was cited for broadcasting the same programs on three stations it owns.)

Still, a few broadcasters have supported the FCC’s get-tough attitude.

In a recent letter to Broadcasting magazine, for example, Stephen R. Young, station manager of WBGL-FM in Champaign, Ill., wrote: “I’m tired of broadcasters and others who hide behind the First Amendment when it’s convenient for them. The fact is indecent speech is not protected, and that’s what we are dealing with” in the Stern broadcasts.

The commission defines indecency as broadcast programming that is “patently offensive” as measured by contemporary community standards for broadcasting.

Stern could not be reached for comment Friday and Infinity referred calls to its lawyer. Stern has complained in the past that the commission is on a vendetta to drive him off the air and cites his strong ratings as evidence of public approval.

He has received support from some officials.

In a one-page letter sent to FCC Chairman Alfred Sikes before the commission voted to fine Infinity, Sen. Alfonse M. D’Amato (R-N.Y.) accused the commission of cowing to “narrow-minded” special-interest groups. The letter came after Stern had publicly endorsed D’Amato in his recent hard-fought battle for re-election and featured the lawmaker as a guest on his show several times.

The American Civil Liberties Union also has voiced support for Stern’s program on First Amendment grounds.