The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Sunday, March 14, 2004

FCC v Howard Stern Celebrity Deathmatch? You gotta be kidding!

It's a truism that many of those who have found themselves required to establish in the American courts liberties about which staunch conservatives thump the tub were themselves not pillars of Main Street or Levittown.

Thus, to have Stern as the current Joan of Arc of the First Amendment is nothing to write home about.

However, his record with the FCC is just a little puzzling.

As things stand, the FCC is entitled under 47 USC 503 to impose a penalty for breach of 18 USC 1464 [1] of up to $27,500 per infringement [2].

I'm not a regular Stern listener. Hardly heard him at all, in fact. But doesn't he infringe §1464 almost every show? According to this, the Stern Radio Network runs to 41 stations [3]. Now, even under the current law, that would make, for just one violation per show (an impossibly cruel ration, surely?), a tidy $1.13 million for the FCC every day he takes to the air!

It should be a slam dunk. But what's been going on?

So far as I can see, nada. Not recently, at least.

At one time, Stern was clearly in the FCC's sights: Infinity Broadcasting was repeatedly hit with fines [4]. Which Infinity disputed, and therefore did not pay. In the end, by 1995, the total outstanding had reach $1.7 million.

Pieces such as this from the NY Daily News say that Infinity paid the $1.7 million in fines in 1995.

A piece by Martha Kleder (freelance conservative hack, it seems) of November 25 2003 tells it differently:
The FCC wiped the slate clean for Stern in 1995, accepting a $1.7 million "donation" from Infinity in return for not citing the violations when Infinity's licenses came up for renewal.

"Indecency fines do not count against a station unless they are paid," communications attorney Arthur Belenduik told Concerned Women for America's Culture & Family Institute. That legal nuance explains the near-universal determination by broadcast networks to challenge indecency fines rather than pay them.

I've been unable to stand up the donation element - except for another piece from the NYDN. Which, for obvious reasons, I find a less than credible second source!

If it's right, though, the FCC was happy to see Infinity wipe the slate clean in 1995 in the most painless way, short of not handing over the moolah.

What about after the big settle-up?

I can find only one report that Stern's show has resulted in any fine being levied in that period. In fact, that report has the FCC fining two stations for shows in October 1995 and March and June 1996; but rescinding in 2001 a 1997 proposal to fine his home station in New York, WXRK. The sum they were proposing to mulct the station of? Six thousand bucks.

Now, so far as I'm aware, the enforcement regime, set out in the useful FCC guidance notes (PDF) [5] has not changed. So the FCC is only able to act on complaints made - nix on sua sponte!

But where did all the Stern-haters go? There must have been plenty to rack up $1.7 million of fines: they couldn't just have given up, could they?

Is this an artefact of the crappy world of half-assed half-knowledge we call online? Or has the FCC really been giving a free pass to the purveyors of Stern's filth and depravity these seven or eight years?

  1. Which says:
    Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.
    Does the FCC have exclusive jurisdiction over violations of §1464, or could some other part of the Federal government prosecute and seek a jail term for such a violation? (§503 doesn't let the FCC call for anyone to be locked up for such a thing!)

  2. §503(b)(2)(A); the page says $25,000 - I assume that has been increased since the page was updated in 2001 (HR 3717 gives the higher figure).

  3. Do these include the Clear Channel stations he's been dumped from. Dunno - doesn't affect the principle.

  4. Which, needless to say, I cannot find listed anywhere. A flavour from this, this and this.

  5. I mentioned in my March 10 piece on Sandra Tsing Loh.


We had some corroboration in Henry Waxman's statement - quoted in my March 10 piece - that the FCC only proposed three fines for indecency violations in 2003.

Looking at the statement to the House Commerce Committee's Subcommittee on Telecommunications and the Internet by David Solomon, Chief of the Enforcement Bureau at the FCC, he says that
including actions anticipated in the near future, since Chairman Powell took office in mid-January 2001, the Commission will have issued 18 proposed indecency forfeitures (so-called Notices of Apparent Liability), for a total of about $1.4 million in proposed fines. This dollar amount significantly exceeds the total amount of about $850,000 in indecency forfeitures proposed during the prior seven years under the two prior Commissions.

Love that
actions anticipated in the near future
- pure the cheque's in the post!

(Solomon's is a deeply unimpressive statement, by the way. No wonder the Kyle's Mom brigade are hopping mad (a male example).

I'd take the view of censors that, the weaker the better. But, then, censorship is rather Solomon's job.)

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