Indecency enforcement for years has been the FCC's dirty little secret. Each year, the commission levies a handful of fines for shock-jock gross-outs, but the commission has avoided a high-profile battle pitting its obligation to police the airwaves against its duty to protect First Amendment rights by dismissing hundreds more complaints on a technicality. All complaints must be accompanied by a transcript or tape—a virtually impossible mandate for moms and dads driving kids to school or heading to and from work.
But the FCC strayed from the safety of its beaten path in recent months and finds itself in a minefield. A step in one direction, and the commissioners will catch it from angry parents and moral crusaders; a step in the other, and they will be rocked by free-speech activists and federal judges.
After years of avoiding the spotlight, the FCC's approach to content regulation is in for a lot of attention.
The agency's fining Citadel Communications $7,000 on June 1 for airing a cleaned-up-for-radio version of Eminem's "The Real Slim Shady" on KKMG(FM) Colorado Springs, Colo., garnered a banner headline on the cover of this month's Rolling Stone
and generated stories nationwide. Now everybody's watching, and it's unlikely the FCC commissioners can exit this mess without bloodying themselves.
Last week, Citadel's attorney accused the FCC of wildly overstepping its bounds in taking punitive action against a station that aired the Eminem number. A public station in Portland, Ore., is preparing its appeal of the FCC's action against a feminist rap.
The two Democrats on the panel are pushing their colleagues to make a bigger commitment to regulating content. Commissioners Gloria Tristani and Michael Copps last week denounced the FCC's policy of automatically dismissing complaints that are not accompanied by a tape or transcript. In his first official public-policy statement since being sworn in in May, Copps suggested that the FCC study whether stations could be required to retain records of broadcasts that could be used to corroborate complaints.
In the meantime, the FCC is gearing up for appeals that the entire industry will be watching.
Kathleen Kirby, attorney for Citadel's Washington law firm, charged that the FCC violated its obligation to "tread lightly" when it comes to censorship. Eminem's rap is not indecent, she said, but a "caustic" commentary on social inequity and hypocrisy.
At issue is whether the rap song can be considered "indecent" under the FCC's definition. Indecent broadcasts are forbidden between 6 a.m. and 10 p.m., when children are most likely to be listening. Under the agency's rules, indecent broadcasts depict sexual or excretory activities or organs in way patently offensive by community standards. KKMG's version deleted specific expletives, but the meaning of references to female anatomy, masturbation and bestiality remained clear. Kirby said Eminem's lyrics are not shocking when examined in context.
Kirby also accused the FCC of ignoring the community-standards test, noting that, across the country, the edited version of the song was aired 125,071 times as of June 25 and that the Grammy Award-winning Eminem has become part of mainstream culture.
More broadly, the case and the Portland, Ore., appeal will put the agency's new indecency guidelines to their first major test. The policy, issued in April, was intended to give clear-cut examples of acceptable and unacceptable broadcasts. For example, on-air depictions of morning-show shock jocks or callers engaged in bestiality or oral sex were deemed illegal, while an Oprah
episode with hints for improving couples' sex lives was not. Unfortunately, the case-by-case examples were a little too clear-cut and provide no guidance for cases in which the lines between social commentary and irredeemable offensiveness are blurred, say First Amendment attorneys.
That point will be reinforced by attorneys for KBOO-FM Portland, Ore., which was fined in May for playing "Your Revolution," a rap penned by poet Sarah Jones denouncing sexual degradation of women. Although the song contains many vulgar references, it also parodies popular music that encourages casual and reckless sexual behavior. The attorneys note that Jones has been asked to sperform the song at high schools and that the broadcast aired during a two-hour program examining social and political issues.