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The Howard Stern Files : Deep in the Caverns of Official Washington Lies the Record of the Government’s Lengthy Scrutiny of One Radio Personality. Did the FCC Make Howard Stern a Star?

Paul D. Colford covers the media for Newsday and writes a column on publishing, Ink, which appears in The Times. This excerpt is from his book 'Howard Stern: King of All Media," to be published in July by St. Martin's Press. Colford is also the author of "The Rush Limbaugh Story.'

At the Federal Communication Commission’s headquarters in Washington, the Complaints and Investigations Branch for years has been inundated with audiotapes, correspondence and legal briefs pertaining to Howard Stern and his syndicated radio show. Thousands of letters, faxes, postcards, telephone messages and mass-produced petitions are indexed, numbered and affixed to copies of the replies mailed by the FCC.

If Infinity Broadcasting Corp. has spent more than $3 million to defend its most valuable broadcaster, as its president once claimed, American taxpayers, like it or not, may have paid much more to restrain and explain him.

To examine the thick sheaves of correspondence in the cluttered records room on M Street is to realize that freedom of speech and freedom to dissent are costly rights to exercise and honor. The letters reflect an incalculable expenditure of manpower and clerical hours. They also offer insights into Stern’s vast audience of detractors and admirers.

An unsigned letter from Cerritos complained “about the most revolting monster ever to hit the airwaves: Howard Stern . . . .The New Years [sic] ‘show’ [in 1993, on pay-per-view] which he offered for $40 (and which one of our neighbors taped), even grossed out the men. The show was vile, disgusting, repulsive, and repugnant . . . . Please, please do something for the good of all humanity and keep this vile monster off the air and TV for good.”

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Among the letters from Howard’s defenders was one forwarded to the FCC by Sen. Dianne Feinstein. A Los Angeles man argued: “I have never written a political leader before, but an injustice currently being carried out by the Government in the form of selective punishment and an attempt to circumvent the right to free speech has prompted me to ask for your intervention. As you may know, the FCC has been fining the employer of Howard Stern hundreds of thousands of dollars for comments made on his radio show. Regardless of how we feel about Mr. Stern’s show and its contents, clearly it is no more obscene or pornographic than many television and radio shows which have not be[en] the target of fines or penalties.”

As raunchy as Stern’s program has often been, dwelling on sex and often more sex, real and wantonly fantasized, it was protected by the First Amendment to the Constitution: “Congress shall make no law . . . abridging the freedom of speech,” as interpreted by the FCC. The FCC routinely encouraged those complaining about Howard’s show to direct their concerns to the radio stations on which they heard him, because, to quote one letter from the agency, such “commentary can be effective in influencing broadcaster’s [sic] programming decisions.”

When Howard joined WNBC in New York in 1982, the FCC articulated this hands-off policy. But the mail kept coming. A Long Island man vented in a 1985 letter to Sen. Daniel Patrick Moynihan (D-N.Y.): “It is, in my opinion, one of the most degrading and repulsive radio programs I have ever heard. Is there nothing in the law that would prevent this pollution of the air waves?”

James C. McKinney, chief of the FCC’s Mass Media Bureau, wrote in a response to a similar query: “As deplorable and offensive as certain remarks may be, they are not subject to review and action by this agency.”

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After WNBC fired Stern in the fall of 1985, Infinity prepared to put him on one of its New York stations, WXRK, known as “K-Rock.” According to company president Mel Karmazin, he first met with McKinney in Washington to inquire about indecency regulations. As Karmazin later recalled the meeting, McKinney said that “ ‘it’s very simple: All you need to do is to not say the seven dirty words.’ And we entered into a contract with Howard . . . and in the list of things that were prohibited, Howard could not say the seven dirty words.” (Interviewed in 1995, McKinney said that he could not recall meeting with Karmazin--but if he had, he added, he would have presented a more complex definition of indecency.)

The “seven dirty words” (s- - -, p- - -, f- - -, c- - -, c- - - - - - - - -, m- - - - - - - - - - - and t- -) had assumed a level of extreme seriousness in the radio industry as a result of the landmark court case that had produced the prevailing definition of broadcast indecency. In 1978, in a case stemming from the radio transmission of a George Carlin comedy routine, the U.S. Supreme Court had upheld the FCC’s right to ban the broadcast of words that the commission deemed “patently offensive” during hours when children were in the audience.

The playing field was altered when Philadelphia’s WYSP-FM added Howard’s “K-Rock” program in August 1986. According to McKinney, more people in the Philadelphia area complained to the FCC about Howard’s show in its first three months on WYSP than New Yorkers had in three years. After studying a few dozen letters and tape-recorded segments of the program, McKinney singled out three complaints from residents of Philadelphia. The listeners said they had been offended by Howard’s comments about masturbation and sidekick Robin Quivers’ anatomy. Remarks that Howard had made about the much-publicized “Preppie Murder Case” of 1985--a young woman was slain in New York’s Central Park, supposedly after a rough-sex encounter--irked McKinney himself. In a letter sent to Infinity Broadcasting in November 1986, McKinney essentially launched an investigation into Howard’s show. He gave Infinity 30 days to respond.

In a 44-page reply, Karmazin conceded that Howard’s programs “are comedic in nature, [but] they are undeniably provocative and controversial, thereby inescapably offensive to some persons of delicate sensibility.” However, Karmazin pointed out, the FCC’s staff ‘consistently and repeatedly ruled that Mr. Stern’s use of the type of sexually-oriented language now complained of is protected speech.”

Nevertheless, on April 16, 1987, the FCC fired the loudest broadside heard in the broadcasting industry since the Supreme Court decision. The commission, rejecting Karmazin’s arguments, found that Howard’s show had aired “indecent material” on WYSP several times. The decision, which was approved by the commissioners in a 5-0 vote, stated: “The commission found that the broadcasts in a number of instances did not merely consist of an occasional off-color reference or expletive, but consisted of a dwelling on sexual and excretory matters in a way that was patently offensive as measured by contemporary community standards for the broadcast medium.”

The wording of the decision echoed the FCC’s earlier definition of indecency, language upheld by the Supreme Court, and heralded a crackdown on broadcasters that promised to go beyond the “seven dirty words” criteria. The FCC imposed no punishment for the Stern violations but said it would issue letters of warning to Infinity. In effect, the FCC was putting Infinity on notice that Stern’s material would be actionable under the indecency standard that the commission now believed it had clarified.

What Karmazin wanted to know was: What standard? He said Howard would not change his format until the FCC translated its definition of indecency into usable directives.

Gray rules had replaced black-and-white rules, making Karmazin’s situation far more complicated than it was when he hired Howard. As Karmazin would recall, “The FCC . . . changed the definition of indecency. They said that you cannot discuss sex or excretory matters in a patently offensive manner. We then called them up and said, ‘Folks, we got this definition and it says “patently offensive.” Could you give us some more guidance? Because we don’t want to break the rules, but we want to understand what you mean by “patently offensive” because you’re saying that we can discuss masturbation and we can discuss lesbianism and we can discuss sex, but we just can’t do it in a “patently offensive manner.” ’ “

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Karmazin was to face a long wait for “more guidance” from the FCC--he would still be waiting at the end of 1995 when his dispute with the FCC would end--while the commission dramatically intensified its scrutiny of Stern’s show.

Howard bragged that the FCC’s action would help his ratings. “I’m thrilled,” he said. “I never thought we did anything obscene. I never thought we did anything disgusting. I never thought we did anything rude.” He argued that the FCC’s decision was not a slap against him personally but its way of putting the radio industry on notice. “They can’t touch me, because I didn’t do anything wrong--unless this is Russia.”

But the battle with the FCC was only beginning.

On the very day in 1987 that the FCC thrust Howard into the role of poster boy for shock radio, he huddled in a closed-door meeting at New York’s WNYW-TV, plotting his first major foray into television.

WNYW was the flagship station of media mogul Rupert Murdoch’s Fox Broadcasting Network. When Fox began to woo Howard in the fall of 1986, it was believed in TV circles that the fledgling “fourth network” wanted him for a program that would follow its newly launched 11 p.m. “Late Show Starring Joan Rivers.” Fox planned to test Howard’s new show on WNYW during the spring of 1987, then decide whether to put the venture on the network in the fall. But Rivers, by then attracting only half the audience that Fox had promised advertisers, was about to be removed, and the fate of her time slot remained uncertain; industry rumors had Fox considering Howard as Rivers’ replacement.

This prospect of a career beyond early morning radio was heady stuff for Howard. He aimed to please during a get-acquainted lunch with Fox and WNYW executives at the swank Plaza Athenee hotel in Manhattan. “He could not have been more cordial and delightful,” recalled Paul Noble, who was WNYW’s executive producer.

Rivers did her final show on May 15 as Howard formalized his romance with Fox by taping five hourlong pilots that cost the network about $400,000. Although the shows were designed to air once a week over five weeks, viewed together, the programs gave Fox an impression of how Howard would wear over consecutive weeknights.

But network television did not operate as swiftly and impulsively as Stern’s morning radio show. By early June, Fox had not scheduled airdates, and Howard had to suffer the humiliation of reading in the newspapers that the pilots were being tested before focus groups in California. He started to question the smarts of Fox executives, wondering--on the air, of course--why they had to audition his stuff when the network’s only full night of programming was awful.

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By July, Howard and those who worked on the pilots still had heard nothing about airdates. Worse yet, Fox Broadcasting president Jamie Kellner and other network brass were no-commenting queries from the press, saying that it was company policy to refrain from discussing shows in development. Although there was no formal announcement, by mid-July it was clear that Fox had shelved the pilots.

But why? What was so bad about the five hours with a cult hero?

“We were very excited about the pilots,” recalled Garth Ancier, the network’s first programming chief. “But I think there was a feeling by management of the company that we were not strong enough to endure questions about our broadcast standards that might ensue if we aired them.”

Sources who were high up at WNYW and the Fox network in 1987 say they have no doubt about who made the decision to give up on Howard: “It was all Barry Diller and Rupert Murdoch, period,” says Charles Hirschhorn, at the time Fox’s vice president for programming, who had supervised production of the pilots. Diller was then chairman of Fox Inc.

Although Stern did not see the big picture at the time, his controversial reputation, underscored by the FCC’s widely reported investigation, struck Murdoch as much too heavy baggage at a time when the media baron was facing larger and more worrisome corporate problems. Murdoch feared that putting Howard on television would taint his effort to keep the New York Post. When Murdoch bought WNYW and six other TV stations from Metromedia in 1985 for more than $2 billion, he became subject to a federal law that barred him from owning a TV station and a newspaper in the same city. In New York, the home of WNYW, this meant that Murdoch had to sell off the raffish Post, an especially painful requirement because the tabloid gave him an editorial voice and coveted social entree in the world’s media capital.

He rejected Howard’s pilots while lobbying--unsuccessfully--for a permanent reprieve from the so-called cross-ownership rule. (Murdoch sold the Post in 1988, only to reacquire it in 1993, when he won a cross-ownership waiver and was free to operate in both media.)

Another reason that Fox declined to air the pilots is that they were, in the opinion of a top network executive, “boring.” Indeed, a viewing in 1995 of four of these hours revealed a painfully slow and often witless show. Stern told the same Polish joke in two different hours, he fumbled for questions to ask his guests, including a stone-faced Frank Zappa and Jackie Mason, and members of the studio audience responded lifelessly to his insults and a bungled attempt to get four of them to disrobe. Only in the fourth pilot, devoted to all things Elvis, did the wildly inventive Stern shine as he impersonated The King while costumed in a gold jumpsuit. He later would rework pieces of the hour on the syndicated TV show that he did put on the air starting in 1990.

Stern responded to the cancellation by hooking up with Showcase Talent Productions for a special on cable TV--"Howard Stern’s Negligee and Underpants Party"--that would be available to viewers who had addressable converter boxes as part of their cable hookup. He wanted to prove that he had the clout to draw a TV audience.

Subscribers who tuned in on Feb. 27, 1988, saw the studio audience, at Howard’s cue, strip to their underwear. The appearance of Jessica Hahn highlighted the special. The former church secretary, who had become tabloid fodder in 1987 after being involved in a sex scandal with televangelist Jim Bakker, had developed a friendship with Howard.

Predictably, TV critics were appalled by the show. But an estimated 60,000 homes in the New York area each paid $19.95 to receive the special. Participating cable systems pocketed half of the $1.2-million gross, while Showcase and Howard were to split the remaining half. On top of Howard’s estimated $300,000 payday--far, far richer than any one-night stand on Fox--he retained the videocassette rights and hawked copies at $24.95.

It hadn’t been easy for Howard Stern to line up a Los Angeles outlet for his radio program or for Greater Media Inc. to sign him up for KLSX-FM. When Stern negotiated his new contract with Infinity in 1990, he insisted that the company allow him to syndicate his show in Los Angeles. He and his agent, Don Buchwald, viewed Los Angeles as a potentially grand extension of Howard’s market--a way to multiply his radio audience and increase the potential number of customers for his profitable pay-for-view specials and video sales. However, Mel Karmazin, the Infinity president, was uneasy about exposing the radio company’s No. 1 cash cow to Los Angeles’ allures of television and films. What if they turned Howard’s head away from radio? Buchwald, recognizing that it would be difficult to persuade Howard’s boss, told an associate, “L.A. is going to happen over Mel Karmazin’s dead body.”

When Karmazin finally was convinced, he came around to the view that syndication into Los Angeles would allow Infinity to increase revenues (from its cut of Howard’s deal) without having to purchase a second station in the market. It already owned KROQ-FM.

KLSX, a classic-rock station at the time, had been lagging in 12th place with a 2.8 share of the total listening audience. Its morning show claimed only a 1.8 share of the prime-time pie and was wallowing in a tie for 21st place. “The conventional wisdom was that the market was so big, and it was so extremely difficult to break through, that we had to have someone with atomic energy in the morning,” recalled Charles Banta, who was Greater Media’s vice president for radio at the time.

Even with Karmazin in agreement, negotiations with Greater Media spanned more than six months. What helped ease the process were Howard’s warmth and politeness. “I was extremely impressed by how very different he was from his on-air persona,” Banta recalled. “He was shy in some cases and very considerate.”

According to sources familiar with the KLSX agreement, which put Stern on the station in July 1991, it was a seven-year deal that called for an annual base fee of nearly $1 million--but with no share of the income generated by the show. Only after the L.A. arrangement led to the opening of other markets were advertising percentages written into the contracts. Bonuses tied to Howard’s ratings performance in Los Angeles boosted KLSX’s annual payouts into seven figures. His success was quick.

In October 1992, Howard became the king of Los Angeles radio. Summer ratings showed that he had ousted KLOS-FM’s Mark Thompson and Brian Phelps from first place in the morning. The L.A. win --a 6.4 share for Howard, a 5.6 for Mark and Brian-- was more impressive than his New York success, because it had taken him only a year to achieve.

*

But what generated even greater media attention--and no doubt prompted unfamiliar listeners to sample Howard’s show--was his ceaseless war with the FCC.

The FCC levied its first fine against Infinity Broadcasting ($6,000) for Stern material in 1990. By September 1994, when the penalties against the company had burgeoned to $1,706,000, Karmazin disclosed at an industry seminar that Infinity already had spent more than $3 million on legal expenses. At the same time, Karmazin emphasized that the corporation would not pay the fines, because the FCC was “not clarifying the [indecency] rules for us or telling us exactly what we did wrong.”

The standoff between the FCC and Infinity inched toward a potentially decisive arena as a result of a major court decision. On June 30, 1995, the U.S. Court of Appeals for the District of Columbia Circuit upheld FCC policy by approving the agency’s rules that ban indecent programs between 6 a.m. and 10 p.m. The court dismissed broadcasters’ contention that the FCC’s regulations were too broad.

The court’s ruling strengthened the Justice Department in the event that it decided to act on behalf of the FCC and sue Infinity to collect the fines. At first glance, it appeared that nothing would please Karmazin more; for years he had called on the FCC to give Infinity its day in court to challenge the commission’s actions. Although the latest turn in the enforcement of directives on indecency applied to all radio and television programming, the possibility arose that Stern might stand at the center of a landmark Supreme Court case. The Republic in all its seriousness would learn once and for all if the bad boy of the airwaves had the right to discuss his masturbatory fantasies and bowel movements at 8 a.m.

However, two months later, in a stunning development, Infinity agreed to pay the federal government $1.7 million to settle all indecency complaints pending against the company. The timing of the announcement on Sept. 1, 1995, the Friday of Labor Day weekend, meant the story would appear in the little-read newspapers of the following day, suggesting that Infinity was embarrassed by its capitulation.

Infinity finally blinked, because the FCC’s ire over Howard Stern--additional indecency complaints reportedly were under review--threatened to slow the commission’s approval of the radio company’s expansion plans. Stern was good for business, but now that Congress might increase the number of outlets that a company could own, Infinity decided not to allow his big mouth to interfere with the acquisition of more stations.

According to a knowledgeable source, Infinity’s attorney, Steven A. Lerman, who through the years had prepared the stacks of legal briefs in defense of Stern, persuaded the adamant Karmazin to set aside his ego and clear the company’s slate with the FCC. Infinity admitted no wrongdoing or liability and vowed to continue its support for a fight being waged by a coalition of broadcasters against the FCC’s indecency regulations. Nevertheless, Infinity essentially surrendered in its battle over principle.

As Karmazin bluntly advertised in his own prepared statement, resolution of the proceedings with the FCC “will enhance our opportunity to further expand the Howard Stern program into additional markets.”

Returning from vacation days later, Howard argued that government harassment “finally got to” Infinity, but he emphasized that he himself had played no role in the capitulation. “I was not in on this decision, nor did I know about it, how’s that?” he claimed. “And I was plenty upset.”

Infinity was quick to take advantage of its newly cleansed record: On Sept. 22, the company announced that it planned to pay $275 million for the seven major-market radio stations owned by Alliance Broadcasting Inc., expanding Infinity’s portfolio to 34 outlets.

*

Stern’s rewards for drawing more than 4 million listeners a week were breathtakingly rich.

His gross earnings in 1995 from radio work would total about $8 million, based on the author’s knowledge of Stern’s contract with New York’s “K-Rock” and the fees from affiliate stations that he split with Infinity. In addition, as the marquee name of E! Entertainment Television, he was receiving some $1.5 million a year for the cable channel’s nightly videotaped playback of his radio shows. A contract with ReganBooks, a division of Murdoch’s News Corp., to write a second book paid him an advance of about $3 million. Like his first book, “Private Parts,” the new “Miss America” became a big bestseller.

Bottom line: Stern was expected to earn about $12.5 million in 1995. A new contract with Infinity, the paperback sales of “Miss America,” and plans to syndicate the radio show into many more markets promised to increase his earnings this year.

For the self-proclaimed “King of All Media,” it was becoming an increasingly lucrative reign.


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