KKMG(FM) Pueblo, Colo., is on the line for a mere $7,000, but the FCC's decision to fine the station for airing a song by Eminem could cost the raunchy rapper millions and signal a chillier climate for broadcast content.
Some of the country's biggest station groups, including Clear Channel, Infinity and Citadel, last week were urged by their lawyers to remove from their playlists the cleaned-up version of "The Real Slim Shady" supplied by Eminem's record company or leave themselves open to government sanction. Eminem, whose real name is Marshall Mathers, could lose millions of dollars in air-play royalties.
"I've advised my clients to pull the song," said Kathleen Kirby, a Washington attorney with Wiley, Rein & fielding, who represents Citadel, owner of KKMG.
"The practical implication is they've got to yank the record. They can't play it safely," said another big-station-group attorney who asked not to be named.
Officials at Interscope Records, Eminem's recording label, are taking a wait-and-see approach before responding to the FCC's action and would not comment for this story.
Although each radio station could perform additional edits to Interscope's on-air version, there's no guarantee those efforts would shield them from penalties.
"We haven't gone down that road yet," said Bobby Irwin, KKMG operations manager. "The Real Slim Shady" topped the charts last spring and summer and was the biggest hit from Eminem's The Marshall Mathers LP, which was the No. 1 album on the Billboard 2000 for eight weeks and garnered three Grammys.
Irwin estimated the song was played 60 times a week during the hottest part of its run.
Citadel last week said it would appeal the ruling, which was levied by the agency's Enforcement Bureau without a vote of the FCC commissioners. It's unclear whether agency Chairman Michael Powell, who repeatedly has voiced deep reservations about restricting broadcast content, was aware of the Eminem case. At least one other commissioner's office was caught by surprise when the decision was released June 1.
FCC rules prohibit indecent broadcasts between 6 a.m. and 10 p.m. KKMG officials argue that sexual and anatomical references were edited from the song and it should not have been ruled indecent, but regulators argued that the meaning of Eminem's offensive references remained clear. The rap song contains a variety of potentially offensive passages, including references to female anatomy, bestiality and masturbation.
FCC officials insist that they have not intensified efforts against the increasing amount of raunchy programming and were simply reacting to an individual complaint. The FCC did, however, issue guidelines in April aimed at clarifying agency indecency-enforcement policies.
Attorneys in Washington, however, say the number of FCC indecency investigations is starting to rise and they expect the number of fines imposed this year to surpass 2000's mark.
"Last year, I handled less than a half dozen indecency inquiries. In the first five months this year, I've seen 10," said John Burgett, who represents Clear Channel for Wiley, Rein.
Washington lawyers see other troubling signs. For instance, they say the FCC appears more willing to investigate complaints that are not accompanied by tapes or transcripts of the broadcasts. Additionally, the agency no longer has a hands-off attitude towards popular songs or social commentary. On May 14, the FCC fined a station for airing an explicit rap decrying attitudes toward male sexual conquest.
Technically, indecency is defined as programming that describes or depicts sexual or excretory organs or activities in a patently offensive way.
To be fair to the agency, some attorneys counter that the number of investigations is rising simply because the FCC's Enforcement Bureau, created in December 1999, is now at full speed and becoming more efficient at processing complaints. Additionally, as popular entertainment becomes increasingly raunchy, the number of complaints inevitably will rise.
Kirby said KKMG's fine was particularly troubling because the complainant appeared not to know what version of the song aired. The transcript initially provided the FCC was of the unedited version and featured several vulgar words. That version was never played on the station, KKMG responded, which then provided regulators with the lyrics of the edited rendition. No matter, the FCC ruled that version indecent.
"This really puts broadcasters on the defensive," Burgett said.
The Enforcement Bureau made clear in March that transcripts would not always be necessary when it upheld a $2,000 fine against Infinity's KROQ(FM) Los Angeles for airing "You Suck." The complainant, a mother who heard the song in her car, did not provide a transcript, and Infinity argued that there were no records indicating whether the station played the original version containing the words pubic, and anatomical slang d— and p—y or an edited version deleting those words. After the mother filed a written statement indicating she recalled hearing the vulgar expressions, the FCC ruled that her recollection provided "sufficient probative evidence" and that precise transcripts are a "general practice" but not a requirement.
FCC Commissioner Gloria Tristani has been pressing the agency to relax its transcript policy, arguing that listeners rarely are in a position to tape or write down the contents of an offending broadcast, making it impossible for most listeners to file successful indecency complaints.
By going after such a popular song, attorneys say, the FCC is neglecting its obligation to judge complaints based on local community standards. "That this song is played more than a hundred thousand times a month across the country and was featured on a Grammy-winning album speaks to community standards," Burgett said. "Its pretty clear the FCC is wrong about contemporary standards."