"When one looks at the tortured rationale for finding broadcasting uniquely undeserving of First Amendment protection, one gains new respect for the founding fathers' fears. . . . We certainly should turn off, tune out, walk away, and raise our voices when disturbed by what is peddled to us. But we should think twice before allowing the government the discretion to filter information to us as they see fit, for the King always takes his ransom."
Michael Powell accepting the Freedom of Speech Award, October 20, 1999
"I don't know that I want the government as my nanny. I still have never understood why something as simple as turning it off . . . [is] not part of the answer."
Michael Powell at his first press conference as FCC chairman, February 6, 2001
"For the first time, the Commission has applied the profanity section of the statute for the broadcast of this highly offensive word, an application I fully support. . . . A clear line has been crossed and the government has no choice but to act."
Michael Powell on Bono saying "fucking" at the Golden Globes, March 18, 2004
Turns out Janet's boob was important after all. Before February, the Federal Communications Commission hadn't been trying to be the airwaves' nanny much. In the previous four years, it had issued 26 "notices of apparent liability" (i.e., "we're thinking about a fine") to TV and radio stations, and only 13 actual "forfeiture orders," six of them during the Clinton administration's final year. There was only one forfeiture order in 2003: for an episode of shock jocks Deminski and Doyle's radio show, the first time the commission members agreed that they have the right to revoke a station's license for indecency. Not that they've ever done it.
Now, abruptly, the FCC is frantically following its mandate to bar "obscene, profane and indecent language" from "radio communication." Those adjectives seem more like a rhetorical flourish in the U.S. Code than specific categories, but the difference between indecency, obscenity, and profanity has become a real question.
It's almost impossible to prove that broadcasts on public airwaves are obscene by the statutory definition: They have to describe sexual conduct "in a patently offensive way," appeal to prurient interests as a whole, and lack serious literary, political, artistic, or scientific value. And anything accused of obscenity becomes a cause célèbre anyway, so the FCC usually sticks to "indecent." The aforementioned Deminski and Doyle episode, broadcast January 9, 2002, on Detroit's WKRK, included an exceptionally gross call-in catalog of sexual practices with "cute" nicknames. The commission fined WKRK's parent company, Infinity Broadcasting, the statutory max of $27,500 (Infinity's 2002 advertising revenues, incidentally, were $3.8 billion). But even fire-breathing commissioner Michael J. Copps, who regularly dissents from FCC judgments on the grounds that they're nowhere near harsh enough, went no further than calling it "vulgar and disgusting indecency."
And what, exactly, is indecency? The commission's working definition is that it has to do with matters sexual or excretory and is "patently offensive" by "contemporary community standards"not the community where it was broadcast, but "that of an average broadcast viewer or listener," whatever that means. Indecency can't be barred altogether from broadcast radio and television, either (at least in the 10 p.m.-to-6 a.m. "safe harbor" period), since it's protected by the First Amendment.
In practice, this has meant for years that radio stations don't need to worry too much about censoring what they play at night. It's also historically meant that classic-rock stations often haven't bothered to bleep out, e.g., Pink Floyd's "do-goody-good bullshit" and the Who's "who the fuck are you?" even during the day, on the grounds that the former isn't used in the excretory sense, and the latter isn't used in the sexual sense. The FCC hasn't sustained a fine for playing an indecent record since 2000. (The proposed fine for a station that played the clean version of Eminem's "The Real Slim Shady" got a lot of press, but was eventually dropped.)
The laissez-faire era ended March 18, when Powell's FCC issued a memo about Bono saying "really fucking brilliant" on last year's Golden Globe awards: It declared that the rules are different now, and overturned its own Enforcement Bureau's decision that Bono's slip was no big deal. Just to underscore its authority, on the same day the commission proposed two other fines and upheld a third.
The memo also announced an official meaning for the third taboo, "profanity": a catchall for anything the FCC doesn't like that isn't quite obscene or indecent and happens between 6 a.m. and 10 p.m. "Profanity" is a peculiar word choice, actually, since it implies that something sacred is being profaned. In fact, "profane" is unusual enough in this context that the commission resorted to a definition from the rather obscure 1972 case Tallman v. United States: "construable as denoting certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance." (If anyone gets annoyed by anything, it's profane!)
Commissioner Kathleen Q. Abernathy's opinion notes that "the FCC has never used this definition in any analysis of 'profane' content, let alone the use of expletives," and cites a Mass Media Bureau pronouncement that "[p]rofanity that does not fall under [indecency or obscenity] is fully protected by the First Amendment and cannot be regulated." But, she writes, "the law has now changed and all licensees are on notice that even isolated and fleeting broadcasts of the F-word may violate our restrictions on indecency and profanity." All of the commissioners' individual comments schoolmarmishly substitute "the F-word" for "fuck."
It's still a little up in the air which words need to be bowdlerized. On December 8, Republican representative Doug Ose of California introduced a bill defining "profane" broadcast language as all variations on " 'shit,' 'piss,' 'fuck,' 'cunt,' 'asshole,' and the phrases 'cock sucker,' 'mother fucker' and 'ass hole.' " This is very close to George Carlin's famous list of "seven filthy words"the one whose broadcast led to the 1978 FCC v. Pacifica Foundation decision that codified the FCC's right to regulate indecencyexcept that "tits" is gone, and "asshole" is now present. Twice.
But everyone in Congress is trying to look less tolerant of on-air tits and fucks. The FCC's suggested sticking an extra zero on the $27,500 maximum per-incident-per-station indecency fine. On March 3, the House's Energy and Commerce Committee saw the FCC's $275,000 and raised them to $500,000 per incident, plus a three-strikes policy for license revocation hearings. The Senate Commerce Committee proposed a similar bill with key differencessignificantly, a provision that the General Accounting Office spend a year examining the relationship between on-air indecency and media consolidation before last June's FCC ruling on media ownership can be put into practice.
That provision, an amendment co-sponsored by Republican Trent Lott of Mississippi and anti-media-consolidation stalwart Byron Dorgan, Democrat of North Dakota, is a coded but very public dis of Clear Channel Communications, the company that stands to gain the most if that heavily contested, very unpopular FCC ruling goes into effect. Immediately before its radio division's president John Hogan testified to Congress on indecency in February, Clear Channel had made a big hands-washing show of firing shock jock-fine magnet Bubba the Love Sponge and kicking Howard Stern off its stations. (Stern's show is syndicated by Clear Channel's rival Infinity Broadcastingonly six Clear Channel stations had been airing it anyway.)
The Lott-Dorgan amendment is also a slap-down to the FCC, and specifically to Powell, who rammed through the new ownership rules last summer. Powell's case for deregulation is that media outlets aren't actually scarce enough to warrant strict government control of who gets to own them. If every media outletevery website, every cable TV station, every fool with a printing presswere equal, then that would be arguable. But they're not; the broadcast airwaves, which the FCC actually does regulate, are distinctly limited and among the most powerful outlets. They're also public property, revocably licensed to private concerns to serve the public interest (in theory, anyway). Powell's idea of protected speech extends to oligopolistic commercial control of that public property, but not to the words (and body parts) broadcast over it. When you're disturbed by something on the TV or the radio, you can always turn it off and walk awaybut if the airwaves are dominated by a few big owners, you hear the same voices no matter what channel you turn on. That's more indecent than any word could ever be.
Douglas Wolk is a former WFMU DJ and the author of the forthcoming James Brown Live at the Apollo (Continuum).
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