FCC’s hands tied on airwaves

Don Imus’ comments about the Rutgers University women’s basketball team cost him his job, but in all likelihood won’t cost the broadcasters of his show a cent in federal fines.

Despite calls from the Rev. Al Sharpton and the head of the Congressional Black Caucus for sanctions against CBS Radio stations that aired Imus’ remarks, the Federal Communications Commission has authority to levy fines only for sexually indecent and profane comments over the public airwaves.

No broadcaster has ever been fined because of Imus during his 38-year radio career. Before moving to unregulated satellite radio, shock jock Howard Stern was to blame for more than $2 million in fines, but they were all sexual in nature.

Imus, however, has pushed the envelop with racial and ethnic remarks that the FCC and the courts have long considered constitutionally protected speech.

Although some activists have suggested that Congress authorize the FCC to regulate racially offensive material, communications law experts and former agency officials said those regulations would be unworkable in a country that places a premium on free speech.

“Lets say there was a discussion of some minority issue, and somebody said something that somebody took offense to,” said former FCC Chairman Richard E. Wiley. “You can see how very quickly it could get very complex constitutionally.”

FCC officials have not commented on the Imus controversy, other than saying they have received complaints and would review them.

Sharpton said the FCC should issue fines and had urged listeners of his radio show to file complaints. He noted that the commission fined CBS after Janet Jackson’s breast was briefly exposed during the network’s TV broadcast of the 2004 Super Bowl halftime show. CBS is appealing the $550,000 fine.

“There’s no way the airwaves should be used to allow people to call people ‘nappy-headed hos,’ ” Sharpton said on CNN this week. “And, for him to say that, and to just walk away like, ‘I’m just sorry; I made a mistake,’ would then mean that the FCC, who regulates everything on the airways and who sanctioned people as far as Janet Jackson with a wardrobe malfunction, has no purpose at all.”

Sharpton’s call for fines was echoed by Rep. Carolyn Cheeks Kilpatrick (D-Mich.), chairwoman of the Congressional Black Caucus, who also wants the FCC to mandate diversity training for CBS Radio and MSNBC, which had simulcast Imus’ show. Both companies fired him this week.

But the FCC has a very limited congressional power to police the airwaves. Under laws dating to 1927, the agency is forbidden from censoring broadcasters. But federal law also prohibits “any obscene, indecent, or profane language” over the air.

The first major challenge came in the 1970s. The FCC sought to sanction a New York radio station after a complaint from a father that his young son heard a George Carlin comedy routine about the seven “filthy words” not allowed on TV. In 1978, the Supreme Court ruled 5-4 that Carlin’s repeated use of the words were “vulgar, offensive, and shocking” and not protected by the 1st Amendment.

After the case was ruled on, current NAACP Chairman Julian Bond, then a Georgia state senator, formally asked the FCC to add the racially offensive n-word to the list of prohibited terms.

The FCC denied the request on free speech grounds. It reiterated its stance last year not to expand its regulation beyond words “that are sexual or excretory in nature.”

“Although we recognize that additional words, such as language conveying racial or religious epithets, are considered offensive by most Americans, we intend to avoid extending the bounds of profanity to reach such language given constitutional considerations,” the FCC said in clarifying its regulations.

Congress could give the FCC broader authority to monitor racially offensive broadcasts. But such a law almost certainly would be struck down by the courts, said Jeremy Lipschultz, director of the school of communication at the University of Nebraska at Omaha.

“When you get into the kinds of speech like slang, innuendo ... you begin to put off limits speech that shouldn’t be off limits,” said Lipschultz, author of a book on the FCC’s indecency regulations.

But the FCC should try to rein in racially offensive language, said Robert Peters, president of Morality in Media, which advocates for decency standards by broadcasters.

“I think most people would agree that what Don Imus said is not in the public interest,” Peters said. “I bet you people could come up with something that would set at least some limit on the gratuitous racial ethnic name-calling, regardless of who it’s aimed at.”

But experts said that would be a tough standard to craft. The FCC already is facing a legal challenge from broadcasters, who say the indecency guidelines are too broad.

And extending regulation into racially offensive speech would be a dramatic change for broadcasters, said Tom Taylor, editor of Inside Radio, a trade journal.

“You’d have to build another building just for all the complaints,” he said.

jim.puzzanghera@latimes.com