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What Should FCC Do With Shock Jocks?

No easy answers to defining, enforcing indecency rules 8/10/2003 08:00:00 PM Eastern

A group of broadcasters and First Amendment activists want the FCC to back off its threat to revoke station licenses for indecency violations.

The First Amendment Coalition in a petition to the FCC last week argued that threats to toughen enforcement of government restrictions on indecent broadcasts overstep the agency's constitutional authority. The coalition also asked the commission to launch an inquiry into its existing policy for enforcing indecency restrictions—including whether it should exist at all.

"A key factor that has prevented the FCC's indecency policy from being a constitutional catastrophe has been the commission's sense of restraint," wrote Robert Corn-Revere, the coalition's attorney and a First Amendment specialist. "But the agency's reluctance to act as a board of censors appears to be waning."

Corn-Revere argued that the FCC's published guidelines on indecency are too vague to let broadcasters know what programming will cross into prohibited territory. Even worse, he said, the commission relies on confidential informal rulings as precedent for dealing with incoming complaints. "Most are unavailable, thus constituting a body of secret law," he said.

Frustration has been mounting among individuals on the other side of the issue too. FCC Commissioner Michael Copps has repeatedly asked for an inquiry into enforcement practices, asserting that thousands of complaints about base sexual programming are routinely ignored. He also wants the agency to consider adding violent programming as a category that can be restricted.

As a sign of his frustration, Copps last week complained that nearly one year after Infinity station WNEW-FM New York carried out its notorious sex stunt at St. Patrick's Cathedral, no action has yet been taken against the station. Copps also criticized the recent decision to slap WKRK-FM Detroit, also owned by Infinity, with a $27,000 fine rather than immediately revoking the license over a call-in show focusing on descriptions of extreme, sometimes violent sexual acts. The WKRK-FM case is the same one Corn-Revere said unjustly raised the threat of future license revocations.

"Nothing has changed over the past year in the FCC's enforcement," Copps said.

In the middle is FCC Chairman Michael Powell, who is close to recommending to colleagues a solution to the WNEW-FM case. "If they had taken the time to check with staff, they would have learned that they would have a draft of the decision next week," said an FCC senior staffer.

Powell has stated several times a reluctance to dive into the indecency debate, preferring that the constitutionally treacherous waters of regulating free speech be navigated by Congress. But as programming has gotten raunchier and complaints have increased on Powell's watch the FCC has not only raised the threat of license revocations but made it easier to file actionable complaints. Complainants used to have to provide tapes or transcripts of broadcasts.

The FCC's current rules bar between 6 a.m. and 10 p.m. the airing of indecent content "describing or depicting sexual or excretory organs or activities" in a way "patently offensive by contemporary community standards." What falls under that description is perpetually under debate.

Copps said a deluge of complaints indicates community standards are being breached all the time.

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