F*ck the FCC

...and the Bush-Cheney bus they rode in on! And barkeep,
how about another round? Baba-booey! Baba-booey!

JONATHAN VALANIA (jvalania@philadelphiaweekly.com)

 

Old lady judges watch people in pairs
Limited in sex, they dare
To push fake morals, insult and stare
While money doesn't talk, it swears
Obscenity, who really cares
Propaganda, all is phony.

--Bob Dylan

 

It's another TGI Friday night at Brady's Irish Pub, a colorless suburban
rock club tucked away in a Bensalem strip mall. The party animals have been let out of their cages. The beer taps kick into
overdrive. A cover band blares yeoman versions of yellowing alt-metal hits from the '90s by Stone Temple Pilots and
Metallica.

Brady's is the kind of place where a backward ball cap is still considered au courant. A 30ish bottle blond wiggles by
saucily, precariously balanced on a pair of eff-me pumps, her prodigious bosom tightly ensconced in a canary-yellow
wife-beater emblazoned with the words "YOU WISH." A mullet-headed man walks by, his meaty arms sprouting from a
sleeveless T-shirt bearing the noble message "SUPPORT YOUR LOCAL HOOKERS."

It's here, of all places, that a small guerrilla action in the ongoing ground
war over the First Amendment is being waged. Tom Cipriano--the
fireplug-sized phony phone caller better known to Howard Stern listeners
as Captain Janks--is hosting the indelicately titled Fuck the FCC Freedom
Rally to drum up support for the embattled shock jock.

Howard's in trouble. As he reminds his listeners daily, his show, heard
locally on WYSP (94.1 FM), is in imminent danger of being fined off the
airwaves. And the good folks on hand tonight at Brady's Irish Pub are
answering the call by standing up for the First Amendment while getting
their drunk on.

On numerous occasions over the course of his rise and resulting reign as the
self-appointed king of all media, Stern has incurred the wrath of the FCC.
In the past, the fines levied against him have paled in comparison to the massive ad revenue his syndicated show
generates--a mere speeding ticket on the way to winning the Indy 500.

But these are different times. In the wake of Janet Jackson's Super Bowl "wardrobe malfunction," we find ourselves in the
midst of a bare-knuckles crackdown on broadcast indecency, and some of the media's loudest megaphones are being muzzled.

Upping the fear factor, Congress is proposing massive increases in the fines that the FCC can levy against violators. What
was once a slap on the wrist could soon become a career-ending can of whupass.

But the repercussions don't end there. In fact, waves of moral panic are rippling through the entire broadcast spectrum.

PBS, that bastion of sin and temptation, has started airing "expurgated" versions of Masterpiece Theater, and one
Indianapolis radio station is now bleeping words like "urinate," "damn" and "orgy" from its broadcasts of the Rush
Limbaugh show. No, that's not a typo: Rush Limbaugh.

Alas, the dreaded wolf of censorship that First Amendment alarmists have been crying about for years is finally at the door.

 

With his livelihood (an estimated $18 million a year)--not to mention his legacy--at stake and the FCC's heavy boot on his
throat, Howard Stern is playing his ace-in-the-hole by mobilizing his massive listenership, estimated to be as high as 8
million people a week.

While his show remains a raucous testosterone festival--the horny on-air equivalent of Maxim magazine--he's begun
devoting a part of each broadcast to railing against the Bush administration and what he perceives as its Orwellian
crackdown.

The ordinarily apolitical Stern is now urging his millions of listeners to vote en masse for John Kerry and to demonstrate
their support for the constitutional freedoms outlined by the nation's forefathers. Stern is even threatening to mobilize a
Million Moron March on Washington.

Until now, Stern has largely avoided the stripper-less world of modern politics. On the few occasions when he did publicly
throw his support behind a candidate, it was always a Republican, including Christie Whitman (who rewarded him by
naming a rest stop after him on a New Jersey interstate) and New York governor George Pataki. Until recently, he was a
vocal Bush supporter.

But when he came back from a vacation in February, Stern announced he'd had an epiphany. He'd read Al Franken's Lies
and the Lying Liars Who Tell Them, he said, and the scales fell from his eyes. He could no longer support Bush.

You may laugh, but Stern's impact on the outcome of the presidential race shouldn't be underestimated. As any political
scientist will tell you, the electoral map is evenly divided between red and blue states, and the election will likely be
decided by a few key battleground states: Pennsylvania, Missouri, Ohio and Florida.

The tipping point in those states is a surprisingly small number of votes. In the 2000 presidential race, Bush's margin of
victory in Ohio was less than 200,000 votes. Stern's listenership in Cincinnati and Columbus is estimated to be 138,000.

Bush won Florida--and the whole enchilada--by fewer than 1,000 votes. Stern was on the air in Orlando and Fort
Lauderdale until Clear Channel dropped him--coincidence?--but he's still on in Fort Myers, where he reaches 38,000
listeners.

In Missouri, where Bush beat Gore by just 78,786 votes, Stern's St. Louis broadcast reaches 139,000.

In Pennsylvania, Gore won by just more than 200,000 votes. In Philadelphia, 358,000 people listen to Howard Stern.

And that's, in part, why we've gathered here tonight at Brady's Irish Pub. The difference between this First Amendment
rally and a typical $1-draught-and-all-the-wings-you-can-eat night is, on the surface, negligible.

But come November, the impact of this sort of beery grassroots organizing could have a profound impact at the ballot box. If
all goes according to plan, the crowd here at Brady's will form the Bensalem delegation of the Howard Stern voting
bloc--what Salon writer Eric Boehlert calls the "schwing voters."

Cipriano--who first made a name for himself by tormenting John DeBella on Stern's behalf and who today bluffs his way
onto Fox, CNN or CBS News with Dan Rather by passing himself off as an emergency official or an eyewitness to some
breaking news story before yelling some variation on Baba-booey!--takes over the microphone. "The only way to stop this is
to vote Bush out!" he implores the crowd, before leading them in the obligatory chant of "Fuck the FCC!"

 

It all started with Bono spitting out the F-word at last spring's Golden
Globe Awards broadcast, where U2 won for a song it wrote for Martin
Scorcese's Gangs of New York. "Fuckin' brilliant!" he exclaimed on live
television. It took the FCC almost a year to figure out whether that was
obscene. Back in October they ruled that it wasn't.

That was the last straw for the family values mullahs of the Christian
right. Armed with a massive bulk email capability to vent their righteous
indignation, they complained en masse, carpet-bombing the FCC with
thousands upon thousands of form-letter complaints.

As per congressional mandate, when somebody complains to the FCC about
something they perceive as obscene or indecent, the regulatory agency is
obligated to investigate. The dirty little secret of the FCC is that you can
show bare breasts on network television or yell "fuck" on a crowded FM
band, and really, nothing will happen--unless somebody files a complaint.

Congressmen got an earful too, and soon the culture warriors on the Hill were
polishing their muskets. Hearings were held. Lawyers on all sides argued,
heated questions were asked and moral outrage was entered into the record, along with outrage about the outrage. And then
the Patriots and the Panthers got together for a little game called the Super Bowl, and during halftime out it
sprang--boing--the tit that launched a thousand censors.

 

Howard Stern has long been in the FCC's crosshairs. Until now, barring a few warning shots, there was neither the political
will nor the desire to pull the trigger and take him down.

"This decency crackdown has been rolling downhill since last fall," says Tom Taylor, editor of Inside Radio, a broadcast
trade magazine. "The FCC ruling that Bono's use of the F-word was 'fleeting' and in its context not indecent threw gasoline
on the fire."

In the last few years the hellfire of moral outrage over what the Christian right perceives as a pop culture fast becoming a
sleazy red-light district has grown from a contained brush fire to a raging conflagration--and it's threatening to become an
ideological holocaust.

In 2001 the FCC received 350 complaints about indecent content on the airwaves, says Suzanne Tetreault, chief of staff of the
FCC's enforcement bureau. The following year there were 14,000 complaints. In 2003 that number ballooned to 240,000.

In the wake of Janet Jackson's "wardrobe malfunction," the FCC received 500,000 complaints. "I attribute that increase to the
fact that people have gotten more organized," says Tetreault, who chooses her words carefully. Her boss, FCC chairman
Michael Powell (son of Colin), has publicly referred to these bulk email campaigns as "spamming."

For the record, Tetreault says she listened to Stern for the first time only two weeks ago on her way into work. She says she
usually listens to "a dull station that plays contemporary but not edgy" music.

Tetreault was a little surprised by what she heard, not because it was indecent but because it was, well, so tame. "To be
honest, I thought it was a little dull," she says. "I got bored and turned it off."

 

The reason broadcasters have begun policing themselves so aggressively, erring on the side of child-safe content, is that
nobody's certain where the line is being drawn. On its website, the FCC outlines the three lines of content violation that
broadcasters are forbidden to cross: obscenity, indecency and profanity.

>> Obscenity: Obscene speech is not protected by the First Amendment and cannot be broadcast at any time. To be obscene,
material must meet a three-pronged test:
1) An average person, applying contemporary community standards, must find that the material is prurient.
2) The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law.
3) The material, taken as a whole, must lack serious literary, artistic, political or scientific value.

>> Indeceny: The FCC has defined broadcast indecency as "language or material that, in context, depicts or describes, in
terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory
organs or activities." Indecent programming contains patently offensive sexual or excretory references that do not rise to the
level of obscenity. But indecent programming may be restricted in order to avoid its broadcast during times of the day when
there's a reasonable risk that children may be in the audience.

>> Profanity: Profane material includes epithets that naturally tend to provoke violent resentment and language so grossly
offensive to those who hear it as to amount to a nuisance.

Despite their legalistic attempts at clarity, these definitions rest on the quicksand foundation of ever-shifting social mores.
In the vast interconnected global village of the digital age, who can say anymore what's "patently offensive" or who sets
"community standards"? For that matter, who's an "average person" these days? John Ashcroft? Eminem?

"I think the FCC has made those definitions unconstitutionally vague," says WMGK DJ Andre Gardner, whose job it was to
bleep out the naughty parts of Stern's show from 1998 to 2002. "My job was made more confusing and frustrating by the fact
that the FCC didn't define what was indecent."

During his tenure at New York's K-Rock, the Stern show's home base, Gardner manned "the button," a series of digital
delays that put Stern's every utterance in a 30-second holding pattern during which a decision could be made about what
parts to bleep out before sending it out over the airwaves.

Gardner's role as potty-mouth hall monitor didn't endear him to Stern. "He and I had a fine relationship before I was on the
button," says Gardner, recalling numerous shouting matches between himself, Stern and K-Rock station manager Tom
Chiusano. "After that, I became the enemy, which I could understand, because I was cutting up his art. After every show I
would have to sit down with Infinity's lawyer and catalog everything I had dumped."

On air, Stern often complained bitterly about Gardner being trigger-happy on the button, which resulted in some listeners
taking matters into their own hands. "I used to get death threats," says Gardner, who's glad to be back creating broadcast
content instead of muzzling it. "And it wasn't an isolated incident."

Like Stern, Gardner believes the outcome of the presidential election will determine Stern's radio fate. "It's all a matter of
what happens in November and whether he can hold out that long."

 

The FCC has long had the power to punish broadcasters for content violations, but until recently the fines have been
relatively toothless. Even when the fines added up to, say, $1.7 million, as they did for Stern in the mid-'90s, they were
dwarfed by the ad revenue that was pouring in. When you consider that the Stern show brings in an estimated $100 million
in annual ad revenue for Infinity Broadcasting (Stern's corporate owners), it's easy to see why occasional FCC fines were
dismissed by shareholders as simply the cost of doing business.

That could all change with a new bill called the Broadcast Decency Enforcement Act of 2004. Already passed in the House
and now awaiting consideration by the Senate, it will, if enacted, sharpen the FCC's teeth into a pretty menacing set of
fangs. The new Decency Enforcement Act would increase fines on transgressing broadcasters to $500,000 a violation, up to a
maximum of $3 million. That's per incident.

Conceivably, given what's widely perceived as an at best ambiguous definition of decency, the FCC could comb through
transcripts of the almost 4,000 shows Stern's broadcast over the last 15 years and find that he said something indecent on just
about every one. Four thousand times even the low-end figure of $500,000 comes out to $2 billion. That's a lot of lettuce, even
for a radio chain like Infinity and its megalithic corporate master, Viacom.

Furthermore, this new legislation would free up the FCC to pull the broadcast licenses of serial offenders. These days an FM
license in a major market can cost more than $200 million. When exploited properly it's a license to print money, capable of
earning its purchase price within a few years. Everything after that is gravy.

Though the publicity surrounding the FCC's actions has resulted in an increase in Stern's ratings in most markets, there's an
ominous question mark hanging over his career on broadcast radio. At what point does the cost of doing business with him
become unacceptable to the corporations that power his microphone?

 

In most instances, it is the FCC's enforcement bureau that investigates complaints and determines whether the content in
question represents a violation.

For more high-profile cases--such as Stern's or Bono's--the FCC's commissioners make the call themselves. (To maintain
bipartisan balance, there are always two Democrats and two Republicans, with the chair chosen by the incoming president.)

Before levying a fine, the FCC issues what's called "a notice of apparent liability" that notifies the offending
party--usually the huge media conglomerates that control the majority of broadcast content you see or hear--that they are in
violation. It also announces the dollar amount of the fine, or "forfeiture," as it's called, that will be brought against them.
The violator is then given an opportunity to respond, defend the content in question and contest the size of the fine. The FCC
considers this rebuttal and issues a second notice of liability that either holds firm on the initial fine levied, reduces the
fine or drops the complaint altogether.

Those found in violation can appeal for relief from the courts, most likely on constitutional grounds, all the way up to the
Supreme Court. Most industry watchers believe this is the route the Stern controversy will take. A ruling in Stern's favor
could well prove to be a landmark decision on the scale of, say, Roe v. Wade.

"If this winds up at the Supreme Court," says Robert Corn-Revere, a prominent Washington attorney and First Amendment
crusader who testified during the congressional hearings on broadcast decency in January, "and the court rules in favor of
Stern, it could set a precedent that would negate the FCC's ability to enforce decency standards."

 

The scope of the FCC's crackdown on Howard Stern is, at this point, unknown. It's been strongly hinted that there are many
other shoes yet to drop, but the FCC is playing its cards close to the vest. "We've gotten a lot of complaints that haven't been
resolved, and how and when that will happen, I couldn't say," says the FCC's Tetreault.

So far this year the FCC has issued two notices of liability to Stern's proxies. The first notice went to Infinity Broadcasting
and concerns a discussion about "blumpkins" and "balloon knots" that aired back in July 2001.

The notice quotes Stern: "Well, a blumpkin is receiving oral sex while you're sitting on a toilet bowl if you are a man. You're
sitting on a toilet bowl and, uh, while you're evacuating you receive your oral." From there Stern goes on to define a balloon
knot (use your imagination), a nasty sanchez, a strawberry shortcake and a David Copperfield (don't ask). For this, the FCC
is fining Infinity $27,500.

Curiously, Tetreault says the FCC has no current plans to fine Oprah Winfrey for a recent broadcast of her show in which a
guest graphically defined such sexual techniques as a "tossed salad" (anal rim jobs) and a "rainbow party" (a group of
women, each wearing a different shade of lipstick, performing fellatio).

The second notice went to Clear Channel. Back in February Clear Channel dropped Stern from the six small-market
company-owned stations that carried him. The long-expected notice was finally issued on April 8. The offending broadcast
aired almost exactly a year before.

There were two segments that the FCC deemed indecent. The first was a discussion of the sex life of former Stern show cast
member Stuttering John and his wife. The FCC notice quotes Stern as saying that Stuttering John's wife "loves anal." Later in
the broadcast, the notice says, Stern expressed his revulsion at the thought of a naked, sweaty obese man engaging in
cunnilingus.

Indecent? Apparently not in and of itself.

What pushed this discussion into the realm of indecency, says the FCC, was that it was "punctuated by the sound of someone
passing gas or evacuating ... it is clear that the material was designed to shock and pander."

Stern was also cited for a discussion during the same broadcast with the inventor of a product called "Spincterine," designed
to rid sexual partners of body odors that can make oral sex unpleasant. Stern explained to his listeners that Spincterine was
invented to remedy "swamp ass."

Stern routinely tells his listeners that Clear Channel--whose chairman Lowry Mays is a close friend of the Bush
family--dropped him because he started speaking out against the administration. And while there may be truth to
that--Clear Channel has to date given $42,200 to Bush and only $1,750 to John Kerry--it's not the whole truth.

 

In the last eight years, the plurality of owners that control the media has thinned dramatically. At no time in the history
of broadcasting have so few owned so much. It started with the Telecommunications Act of 1996, which relaxed restrictions
on media ownership and prompted massive consolidation. The results were dramatic.

Consider this: In 1996 the nation's two largest radio chains together owned 115 stations. Today Clear Channel alone owns
more than 1,200 stations.

Last June the FCC announced rule changes that would further relax restrictions on media ownership, allowing broadcast
megaliths like Clear Channel and Infinity to become even bigger. In response, a nationwide coalition of media diversity
activists launched a grassroots campaign to raise public awareness about the dangers of media monopolies.

Two of the loudest voices in this grassroots campaign, the Prometheus Radio Project and Media Tank, are based in
Philadelphia. Prometheus has been keeping a close eye on the actions of the FCC ever since it went head to head with the
regulatory body over the issuing of low-power FM licenses.

 

In September the Prometheus Radio Project sued the FCC in the Third Circuit Court of Appeals in Philadelphia, claiming
the proposed deregulation was nothing more than a huge corporate giveaway. As such, the group complained, the regulatory
agency wasn't fulfilling its mandate to serve the public--which, it's worth remembering, owns the airwaves. To the surprise
of all parties involved, the judges ruled in Prometheus' favor and granted a temporary stay against the deregulation while
it heard the case.

"Basically, as with the decency complaints, the FCC has to, by law,
respond to you when you complain about something," says Prometheus' Pete
Tridish. "We sent in 2.4 million comments protesting the relaxation of
ownership restrictions, which they never responded to. And the law
basically says that if you submit comments to the FCC on some action
they're taking and they don't respond, you can sue them. And so that's what
we did."

Sometime in the next 60 days the Third Circuit will make its ruling on
Prometheus' suit. One of several possible outcomes is that it will rule in
favor of Prometheus and throw a monkey wrench into the FCC's plans to
further deregulate the industry.

Many industry watchers see a direct connection between the thwarted
deregulation and the current crackdown on decency, which is seen as a sop to the corporate-friendly Republican Party, a
culture-war wedge issue they can campaign on in a fractious war-torn election year.

"It's generally agreed that hundreds of millions of dollars worth of transactions are being held up by this legal action," says
Andrew Schwartzman, president of the Washington, D.C.-based Media Access Project, a public-interest group that lawyered
Prometheus' suit against the FCC. Commissioner Powell is widely seen as having bungled the gold rush by letting a bunch of
shaggy West Philly lefties bring this process to a screeching halt with a single simple legal maneuver.

This isn't the first time the Media Access Project has sued the FCC on behalf of the public interest. The media watchdog was
born in the civil rights struggle of the '60s when it successfully sued a Jackson, Miss., TV station that refused to broadcast
news footage of demonstrations--an eerie echo of Sinclair Broadcast Group's refusal to air a recent episode of Nightline in
which Ted Koppel read the names and showed the faces of every American soldier killed in action in Iraq. The resulting
landmark decision established the public's right to participate in FCC decision-making.

Schwartzman contends the current uproar over broadcast indecency is as much about money as it is about politics or morality.
"Large companies which own scores of radio and TV stations manage their content from a centralized location, and as such
they have no understanding of community standards," he says. "The community standards of Philadelphia are different
than the community standards of, say, Keokuk, Iowa. And yet, when all the broadcast frequencies are owned by one or two
giant corporations, both places get the same content. And that leads to these kinds of complaints."

FCC commissioner Michael Copps, the most outspoken opponent of deregulation among the commissioners, has gone on record
saying the agency should examine the link between the rising tide of indecency and media consolidation. To date, there has
been little political will within the FCC to answer the potentially troubling questions such an inquiry would raise.

Like many in the cresting wave of media and political elites who have stood up for Stern in the last few weeks--The New
York Times, USA Today, Rudolph Giuliani, public radio's Ira Glass, sex columnist Dan Savage--Media Access Project's
Schwartzman does it while holding his nose. "Stern is a wretched excess," he says. "He's tasteless and offensive but not
necessarily impermissible. The FCC is approaching this with a sledgehammer. But I'm not really worried about Stern. He
can afford to hire attorneys. I'm worried about the small community stations that air cutting-edge content and can't afford
high-priced lawyers."

"To me this whole thing is a symptom of something much larger than policing whether or not somebody says 'fuck' on
television," says Prometheus' Tridish. "I see it as a symptom of the bottom-line mentality that runs the media, that nothing
matters other than making a profit. There's no incentive to educate the public or expose new artists.

"The only objective is to get you to sit there and watch or listen to advertisements. And the powers that be have figured out
that the best way to keep you glued to your radio or television is to shock or titillate you--and that, to me, is what's
obscene."