The FCC last week avoided what could have been a major First Amendment fight over raunchy lyrics contained in one of 2000's most popular recordings.
The agency's Enforcement Bureau reversed its decision and rescinded a $7,000 fine for broadcast indecency against KKMG(FM) Pueblo, Colo., for airing an edited version of Eminem's "The Real Slim Shady," the biggest hit from The Marshall Mathers LP,
the No. 1 album on the Billboard
200 for eight weeks.
Station officials appealed the sanction, arguing that vulgar terms for sex and anatomy contained in the original recording were edited from the version they aired. If the fine had been upheld, countless rap and pop-music stations around the country could have faced similar fines. Kathleen Kirby, attorney for station owner Citadel, said in responding in July when the fine was levied that the edited version of the song had aired 125,071 times as of June 25.
In vacating the fine, FCC staffers decided that sexual references contained in the radio version "are not expressed in terms sufficiently explicit or graphic enough to be found patently offensive" and "do not appear to pander to or to be used to titillate or shock its audience."
When the fine was levied in June, however, the FCC said the edited version "contains unmistakable offensive sexual references" and "portions of the lyrics contain sexual references in conjunction with sexual expletives that appear intended to pander and shock."
The aired version contains a variety of references to female anatomy, bestiality and masturbation.
FCC rules prohibit indecent broadcasts between 6 a.m. and 10 p.m. Indecency is defined as programming that describes or depicts sexual or excretory organs or activities in a patently offensive way. In judging complaints, the FCC must take local community standards into consideration.
The reversal eliminates what could have been a major headache for FCC Chairman Michael Powell. The fine would likely have been appealed to federal court. The initial decision also appeared to conflict with Powell's well-publicized reservations about restricting broadcast content.
The reversal was praised by Robert Corn-Revere, a Washington First Amendment lawyer. "The FCC deserves credit when it's willing to admit a mistake," he said. "The commission appears to be taking some of its First Amendment obligations more seriously."
Although Democratic Commissioner Michael Copps did not criticize the reversal per se, conceding that the fine had been controversial, he did criticize the decision to let the FCC staff handle the appeal, instead of the four commissioners themselves. "Issues of indecency on the people's airwaves are important to millions of Americans; they are important to me," he said in a prepared statement. "I believe they merit, indeed compel, commissioner-level action."
A fine in a similar case remains on appeal with a decision expected soon. Noncommercial station KBOO-FM Portland, Ore., was fined $7,000 on May 14 for airing Sarah Jones's rap song "Your Revolution." The song contains sexually explicit passages condemning prevalent attitudes about sexual liberty as little more than approval for male sexual conquest. It aired during a two-hour show examining social and political attitudes.
Although the FCC backed down in the Eminem case, it appears to be tightening indecency enforcement in other ways. In a separate case last week, it upheld a $14,000 fine against WKQX(FM) Chicago even though no transcripts were provided for the objectionable broadcasts. Often, the lack of such documentation has led the commission to dismiss the complaints.
The Emmis-owned station was fined for two Mancow Morning Madhouse
segments: one in which a porn star graphically described a sexual act known as "fisting" and another in which three women, accompanied by a soundtrack of women moaning, say whether they "spit or swallow" after performing oral sex. The complaint "provides sufficient detail and context about what was broadcast to determine that Emmis broadcast prohibited material," the FCC said.
Copps criticized the FCC's preference for transcripts in complaints last week when he told the U.S. Conference of Catholic Bishops that the agency "places an inordinate responsibility on the complaining citizen." He urged radio stations to voluntarily keep records of programs on file and praised Disney for promising to keep recordings on file for 60 days.
Copps has said he wants the FCC to take a more active role in policing the airwaves, primarily by making it easier for complaints to be investigated. But recognizing that the industry bristles at government oversight of content, he urged broadcasters and cable programmers to adopt a voluntary code of conduct "rather than going the usual Washington route of legislation, regulation and adjudication, with the years of suits, countersuits and appeals that this inevitably generates."