As John B. Thompson sees it, it took federal regulators far too long to determine that Howard Stern’s on-air description of a sidekick’s sex life wasn’t fit for the morning airwaves.
Mr. Thompson dropped his 10-year-old son off at school on April 9, 2003, then flipped on the car radio to check up on his old nemesis, Mr. Stern. He heard the radio host lead a discussion of the sexual habits of sidekick John Melendez, who has since departed the show.
Mr. Thompson — a Coral Gables, Fla., lawyer and activist who has spent the past 13 years battling “shock radio,” violent video games and graphic rap music — drove to his office and dashed off a complaint to the Federal Communications Commission about Mr. Stern’s latest antics.
Almost one year to the day later, the FCC acted on the complaint, slapping radio giant Clear Channel Communications Inc. with a $495,000 fine for airing Mr. Stern’s program on its Fort Lauderdale, Fla., station and five others.
“Why did it take an entire year to issue that fine?” Mr. Thompson asked.
Other activists — and some industry executives and members of Congress — believe the FCC, until recently, lacked the political will to enforce its decency rules.
Also, it can take months for complaints to work their way through the FCC’s bureaucracy, observers say.
Most of the penalties the agency has proposed since the fall are for incidents that are more than a year old:
• On March 18, the FCC fined Infinity Broadcasting Corp. $27,500 for a July 26, 2001, broadcast in which Mr. Stern discussed deviant sexual acts.
• On March 12, the FCC fined Clear Channel $247,500 for a March 13, 2003, discussion about group sex on its “Elliot in the Morning” show.
• On Jan. 27, it fined Clear Channel $715,000 for 26 violations of decency rules by Florida disc jockey Todd Clem, who used the name “Bubba the Love Sponge” on the air. The segments — including a discussion of sex between humans and cartoon characters — aired in July, November and December 2001.
• On Oct. 2, the FCC fined Infinity Broadcasting Corp. $357,000 for broadcasting a Northern Virginia couple’s purported sexual encounter inside New York’s St. Patrick’s Cathedral on Aug. 15, 2002. The stunt aired on Infinity’s now-defunct “Opie & Anthony” show.
A study in March by the Center for Public Integrity, a nonprofit government watchdog group, found that since 1990, the FCC averages 523 days between a broadcast and the proposal of a fine.
“We need to take the time necessary to be thorough and fair to all the parties involved, and the amount of time can vary based on the amount of facts available and the circumstances involved,” said Richard Diamond, an FCC spokesman.
Under FCC rules, broadcasters cannot air material containing references to sexual and excretory functions between 6 a.m. and 10 p.m., when children are most likely to tune in. The rules apply only to over-the-air radio and television stations, not their cable and satellite counterparts.
The FCC received 240,350 complaints last year about potentially indecent material, up from 111 in 2000. The surge is largely attributed to groups such as the Parents Television Council, which have organized mass mailing of complaints to the FCC in recent years.
The FCC’s enforcement bureau — the division responsible for reviewing complaints — has about 350 employees, up from about 290 in 1999.
The FCC asks people who wish to file a complaint to provide it with enough information to investigate the incident, such as a tape or a transcript.
After FCC officials review the materials, they decide whether the incident meets the threshold for indecency. If they deem it indecent, they propose a fine, which is officially called a “notice of apparent liability.”
A broadcaster that receives a notice has 30 days to pay or appeal. If the broadcaster appeals, it must provide the FCC with an explanation of why it believes the material was not indecent.
The back-and-forth can take years. For example, the FCC has fined Infinity Broadcasting or corporate cousin CBS Radio seven times since 1997, but the New York companies have not paid a penalty since Infinity’s $1.7 million settlement with the FCC in 1995.
Most of Infinity’s fines are still on appeal. In one case, the FCC turned to the Justice Department to help it collect a $2,000 fine proposed in August 1998, but the department declined in May 2003 to take Infinity to court, saying too much time had passed.
Since 1990, the FCC has had to cancel at least $152,150 in fines because too much time had passed to collect the money, according to the Center for Public Integrity study.
The “Opie & Anthony” incident sparked outrage among FCC commissioners and lawmakers, but the government’s crackdown on indecency didn’t pick up steam until Feb. 1, when one of Janet Jackson’s breasts was briefly exposed during the nationally televised Super Bowl halftime show, prompting more than 200,000 complaints to the FCC.
Before that incident, FCC Chairman Michael L. Powell focused on other matters, such as deregulating the media companies the agency oversees, said Howard M. Liberman, a communications lawyer and former FCC staff attorney.
“Until Janet Jackson’s dress fell off, the policy within the commission was to bury these [complaints] as much as possible,” Mr. Liberman said.
Mr. Thompson said a lack of “political will” at the FCC has had more to do with delaying fines than the agency’s bureaucracy.
He said he hopes the FCC will continue to take indecency seriously and clear out its backlog.
“There are complaints that have been sitting there 10 years that have never been responded to. … I’ve written hundreds of times,” he said.
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