You Can Say That--and Worse

It’s 8 a.m., radio’s prime time. Another morning. Another rude awakening.

Across the nation, radio stations are locked in a fierce battle for listeners, and the weapon of choice is a steady barrage of jokes about body parts and bodily functions that sound more like a live feed from a high school boys’ locker room than the central component of a widespread corporate strategy.

The prevailing voice of morning radio is wicked, crude and unfiltered-and it has the blessing of radio’s bosses.

Unlike movies, television and even CDs, radio comes straight at listeners without warning. There are federal laws intended to curb crude broadcasts, especially in the mornings when children are likely to be listening, but a quick spin across the dial on any given morning exposes little fear of government sanctions.

The dialogue is frequently explicit and deliberately shocking. If this were a movie, a television show or a CD, what follows would be labeled with an advisory for coarse language and sexual situations that may be unsuitable for children. A typical morning in Los Angeles for radio listeners-one morning, one hour-yields this:

A correspondent on KROQ-FM’s Kevin & Bean morning show expresses frustration at his inability to persuade women to expose themselves for Mardi Gras beads. The station (106.7) bleeps his crude reference to female anatomy but, in the same sentence, broadcasts a common female slur.

Down the dial on KYSR-FM (98.7), Jamie White tells morning show co-host Danny Bonaduce that she flashed a man in Beverly Hills for no reason. They break away from the familiar terrain of White’s “boobage” to riff on male crotch odor in Russia.

On KLSX-FM (97.1), Howard Stern delivers his syndicated rude and risque rant. Admiring a guest’s posterior, he muses, “It’s a shame you’re not into anal, because some man would enjoy that.”

“There are times I’ll hear things and go, ‘I could never have gotten away with that.’ And that was a scant 10 years ago,” said Sky Daniels, a former Los Angeles DJ who is now general manager at Radio & Records magazine. “I’m not saying that for years on end there hasn’t been titillation and sensationalism and all sorts of outrageous behavior, but the degree of base profanity ... and descriptive assessment of certain acts-most of them sexual-is commonplace.

“It’s every day, every dial,” he continued. “What is it going to take?”

The answer is elusive at best. By most measures, no one is listening closely to what has become the pervasive language of radio.

The Federal Communications Commission, the agency charged with regulating what’s on the airwaves, characterizes its efforts as on the rise. Yet FCC officials are unable to provide records of how often they’ve taken action against radio stations before November 1999, when the enforcement bureau began a meaningful effort to track complaints. (The bureau polices everything from broadcast indecency to improper rate charges by telephone companies.)

Here is the current status: Since November 1999, the FCC has received 144 indecency complaints and started inquiries into 9 cases, and found enough evidence in three to proceed with legal action. Seventy-five complaints were dismissed, and 60 have not been reviewed. Two stations have admitted violations and paid fines totaling $14,000. In January, the agency filed its first action of the year against a Wisconsin station that played an unedited version of Eminem’s “The Real Slim Shady.”

“We’re coming from an almost hand system,” offered John Winston, an assistant bureau chief in enforcement. “Now, we’re much faster, more efficient and flexible. Our actions are fairly swift. Look at the 12 in one year, you may not have seen that many in three or four years.”

What the FCC is monitoring is labeled “indecency,” which the agency defines as “language or material that, in context, depicts or describes, in terms patently offensive ... sexual or excretory activities or organs.” The law allows radio to broadcast such content but requires it to be contained from 10 p.m. to 6 a.m., hours when children are least likely to be tuned in.

The FCC can-and has-levied huge fines against stations that get crude outside the so-called “safe harbor.” But radio broadcasters today risk little by pushing the limits of indecent speech.

The law has traditionally been selectively and unevenly enforced, often at the whim of an FCC chairman or a politician seeking the moral high ground. Only a decade after the agency crusaded against Stern by imposing an unprecedented $2.1-million fine for crude broadcasts, one FCC commissioner calls enforcement of indecency today “virtually nonexistent.”

Stern agrees: “I have spawned a new race of Howard Stern impostors,” he boasted on a recent show. “I’ve started a whole wave of bad radio.”

Industry experts expect little change under President Bush. Newly appointed FCC Chairman Michael Powell sent a strong signal he’s taking a hands-off approach when he declined to be the national “nanny” regulating broadcast content.

The FCC does not actually monitor broadcasts itself. Instead, the agency relies on listeners to report and document complaints. In most cases, the listeners must not only provide tapes of the particular vulgarity, but prove it was sustained throughout the program. It’s like getting cut off on the freeway. If no cops are around to see the violation, it’s tough to prove. And harder to get satisfaction.

Case in point: The FCC’s Enforcement Bureau recently dismissed an Alabama woman’s complaint that two DJs responded to her protest about profanity by suggesting-on the air-that she needed “a stick up her [expletive].” The FCC said the remarks were “certainly offensive but are not indecent” because they didn’t violate contemporary community standards for broadcasters.

The dismissal angered FCC Commissioner Gloria Tristani, who felt the agency should have at least investigated the complaint. She said the agency discourages complaints by insisting listeners provide a slam-dunk case.

“I see a general unwillingness to grapple with this,” said Tristani, a Democrat serving the fourth of a five-year term on the five-person commission. “I don’t think it’s a question of being a nanny. We are charged with enforcing the law. We also are charged as an agency with being responsive to Americans and their complaints. The least we can do

Without political backing or more interest from her co-commissioners, industry insiders say, Tristani has little probability of sparking more enforcement action. “Commissioner Powell probably is going to do as few of these indecency cases as possible,” said Andrew Schwartzman, president of the Media Access Project, a nonprofit law firm that crusades for free speech and open access to electronic media. “The historic problem is that most FCC commissioners don’t like these things, but Congress likes them so they have to satisfy Congress a little bit. Commissioner Tristani, for whatever reason, has a real bee in her bonnet about this stuff. She’s making a lot of noise. But Powell, personally, I think is very disinterested in content regulation.”

Complaints that are investigated often take years to resolve. For example, the FCC fined KROQ $2,000 in June for playing an unedited song with vulgar references to female anatomy-more than three years after a listener complained. The case is still pending. In February, the agency dismissed several unresolved complaints against stations around the country because the allegations dated to 1995.

The FCC response: We’re working on it. The agency still had rotary dial phones until the early 1990s, and it has been slow to adopt computer technology.

Robert Corn-Revere, a Washington, D.C., attorney who specializes in broadcast indecency, said the FCC’s uneven enforcement can be explained by conflicting legal obligations: The agency must license and regulate broadcasters to operate in the public interest but is prohibited from outright censorship. Its definition of obscenity is more than two decades old and frequently is enforced at the discretion of politicians.

“You have these really difficult to define and potentially conflicting goals all operating together with the agency stuck in the middle trying to make sense of it,” Corn-Revere said. “You have an agency that from time to time takes differing levels of interest and enthusiasm in trying to enforce the law, and certainly that is true of individual commissioners.

“Some people who are given these appointed jobs are very comfortable with the notion of setting a standard for taste for everyone. Others are more cognizant of constitutional limitations.”

On Oct. 30, 1973, a Pacifica radio station in New York initiated the indecency debate and changed broadcasting forever. On a Tuesday afternoon, the station broadcast comedian George Carlin’s “filthy words” routine-seven words you “definitely wouldn’t say, ever” on the public airwaves. A listener complained to the FCC.

Then-FCC Chairman Dick Wiley, under pressure from Congress and the public to curb crude broadcasts, warned Pacifica it would face sanctions if listeners continued to complain. In what became known as the “seven dirty words” case, Pacifica sued the FCC, citing its 1st Amendment right to free speech.

When, in 1978, the U.S. Supreme Court ruled, it gave greater weight to the issue of privacy, finding that broadcasters are essentially uninvited intruders in cars and homes, and have no right to violate a listener’s privacy by broadcasting indecent or obscene material. That decision ultimately put all the nation’s broadcasters under unprecedented federal control.

The FCC established rules that television and radio stations could air indecent shows between only 10 p.m. and 6 a.m. Obscene material is banned altogether.

Wiley, now a broadcast attorney, believes the industry should regulate itself.

“Regulation exists for the small percentage, and the commission has to take enforcement when they go over the line,” he said. “But you have to remember the definition of indecent is not just something that’s distasteful, it’s more than that.”

Carlin’s filthy words stood as a benchmark for more than a decade. But in the late 1980s, then-FCC Commissioner Al Sikes decided to expand the agency’s definition of indecency and take on Stern. An expensive legal battle ended with Stern’s employer, Infinity Broadcasting, paying a record $2.1 million in fines.

Since then, interest has waned. The FCC fined a station for broadcasting unedited rap music during a live concert and, in several cases, for airing oral sex lessons on morning shows. One DJ in Tampa, Todd Clem, a.k.a. Bubba the Love Sponge, racked up $30,000 in penalties over three years for frequent sexual discussions and one graphic discussion about an enema. Clear Channel Communications paid the fines in July.

But, like Stern, Clem seems undeterred. Last month, he angered listeners and sparked a police animal cruelty investigation after he broadcast taped squealing as a guest castrated and butchered a wild boar in the station’s parking lot. Many listeners thought they were hearing the pig’s actual dying screams. In late March, Clem was suspended indefinitely by Clear Channel, but as a reaction to listener and advertiser protests rather than any sanctions by the FCC.

While DJs push the envelope, industry executives are wary of waking what appears to be a sleeping giant. Dennis Wharton, a spokesman for the National Assn. of Broadcasters, declined to comment on the current state of FCC enforcement, as did Jack Silver, program director for KLSX, Stern’s Los Angeles affiliate.

“There’s just no upside in getting involved with it,” Silver said.

Political winds could shift at any time. Powell’s perceived pro-business stance could conflict with the Republican Party’s conservative views on morality. Meanwhile, Sen. Joseph I. Lieberman (D-Conn.) and Sen. John McCain (R-Ariz.) formed a powerful bipartisan alliance to curb what they see as increasingly explicit sexual content and violence on television. One suggestion: Make broadcasters prove they are acting in the public interest during the license renewal process. The initiative could have ripples in the radio world as well. But it will take awhile.

“Based on Chairman Powell’s early comments, we’re not hopeful the FCC is going to be a vigorous defender of the public interest,” said Lieberman’s com-munications director, Dan Gerstein. “But we’re not going to let it fall by the wayside. It’s clear many broadcasters are not serving the public interest with the content they put on the air.”

“It’s a frequent topic of discussion, believe me,” said Rick Cummings, who oversees programming for Emmis Communications stations, including KPWR-FM (105.9) in Los Angeles. “It makes a nice platform for politicians now and then. Waves come and go. It will come back again-it always does-then it will go away. It’s just part of the deal.”

Stern proved there is a powerful market for tasteless talk. Morning jocks are encouraged to go to extremes to get ratings, covering their tracks with innuendo and double-entendre. Extreme personalities often bring in the most listeners and generate the most advertising profit for the station.

“We spend a lot of time with Mancow at Q-101 in Chicago to make sure he truly understands where the line is,” Cummings said. “We tell him to run right up to the line, to step on the line, but don’t lose the license. And even with all that, we still run into problems. But in terms of racy content, we’ve never been fined.”

The FCC tries to apply an “average listener” standard when reviewing indecency complaints. But what’s indecent in Alabama might be considered edgy in Los Angeles.

One station in Rexburg, Idaho, called a guest’s hot talk about strawberries, whipped cream and oral sex in January 1999 a “creative approach to marital relations” and therefore a public service. The FCC was not hot, but bothered. The station was fined $7,000. The case is pending.

A Miami station defended a five-day string of crude broadcasts in May 1998-including airing an oral sex song called “Uterus Guy’-by citing the public discussion of President Clinton’s sexual indiscretions. Again, the FCC was unmoved, ordering the station to pay $35,000 in fines. The case is pending.

“Everybody knows about that cigar-it’s pretty graphic, and that was our president,” said Angela Perelli, vice president of operations at KYSR-FM in Los Angeles. “Sex is in every adult bedroom in this whole country. It’s not like people don’t talk about it.”

Broadcasters say there is regulation of radio content as listeners change the channel or turn down the volume. And many conservative organizations seeking to curb crude content now target a station’s advertisers instead of complaining to the FCC.

“Trust me, that’s the first thing that rocks radio’s boat-when they start getting hit in the pocketbook,” said Radio & Records’ Daniels. “We’ve just had a pig castrated on the air. What parameters are we going to create? Pig castration is OK, but if you ... if you what?”

Perelli said listeners tune in to Jamie White and Danny Bonaduce because their show is “honest and raw.” It is not intended for children.

“I think we stay pretty close to the line, but it moves,” she said. “The line is very hard to nail down. They know where to stop.”

On the show earlier that day, Bonaduce wondered aloud: “Can I say someone is a huge prick?”

“I don’t know if you can,” White replied, “but you just did.”