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Indecent Proposal 

Congress wants shock jocks to put their money where their mouth is. Who said speech was free?

Money doesn't always talk: It may keep some people - very quiet. Stay tuned. - WALTER NOVAK
  • Walter Novak
  • Money doesn't always talk: It may keep some people very quiet. Stay tuned.
Rover's not sure if he should jump for joy -- or jump off the nearest overpass. His popular morning radio show, Rover's Morning Glory on 92.3 Xtreme Radio, recently went into syndication. Now he gets to riff on poop and pubic hair in Cleveland, Columbus, and Madison, Wisconsin.

But any excitement the pugnacious radio personality feels over reaching a broader audience is tempered by the reemergence of a nasty piece of legislation that's serious saltpeter for a shock jock like him. After stalling in Congress last spring, the Broadcast Decency Enforcement Act is back, and it's chilling enough to freeze Lake Erie.

Not only would the bill ramp up fines from $32,500 to $500,000 per incident; it also allows the Federal Communications Commission to fine individual DJs and artists. All without any warning. Considering that the average annual salary for DJs with five years' experience is a paltry $20,000, few will be able to risk anything but the most tepid radio patter.

"We're definitely a bigger target now," Rover says. "What's worse is that my personal liability is multiplied by the number of markets we're on. One misstep through the muddy waters of FCC decency regulations could cost me $1.5 million -- per incident. Maybe I'll get out of radio and start an insurance company to cover radio people -- it would be like medical malpractice insurance for free speech."

It's easy to joke about the Decency Act, but hard to laugh at it. After three offenses, a station could lose its license to broadcast. And artists don't even have to be aware that their songs are being played to get fined.

Also, the fines are grossly disproportionate to the offense. As Rolling Stone recently reported, $500,000 is the same penalty for illegally testing pesticides on human subjects. Allowing a "nuke malfunction" at a nuclear-power plant carries half the fee. So poisoning people and polluting the environment with toxic waste costs less than making an off-color fart joke on the airwaves. Logic this brilliant hasn't been seen since Terry Bradshaw and Alf debated the merits of collect calls.

Having passed the House by a wide majority in February, the bill is currently wending its way through the Senate. The White House has already said that Bush will sign the bill if it reaches his desk. And even though the legislation has yet to become law, it's already giving broadcasters pause.

"The corporations that are running the stations are extremely mindful of the fact that we're publicly licensed stations," says Bill Louis, program director for WNCX. "When you have the potential to lose that license, in any given market you could have a $20 million property that's not able to do business."

Worst of all, the FCC has taken a Justice Potter Stewart approach to defining obscenity: It knows it when it hears it. Except for when it doesn't. When Bono dropped an F-bomb during the Golden Globes in the fall of 2003, no action was taken. But one rogue boob of Janet Jackson's later, and the FCC overruled its own staff and deemed the expletive obscene. Oprah Winfrey can talk frankly about racy subjects with no censure -- in an October 2003 episode, she shared the dirty definition of "tossing the salad" with the housefraus in her audience -- yet Howard Stern has racked up millions in fines for similar language.

Even program directors don't know where the line is. "There's innuendo, there's double entendre -- anything can be dirty, if you're looking for it to be dirty," says Louis. "Is it a quick indiscretion? Or is it a repetitive usage of certain words and/or content or subject matter?"

The answer: It depends. According to the rule books, the determining factor is whether the broadcast material violates community standards of decency. But much like the appeal of Tara Reid, this can be a hard concept to grasp.

"Community standards that are held over in Westlake aren't the same community standards that are going to be held over on Hough," says Tommy Fox, general manager of Cleveland State's WCSB. "It's so vague."

What's more, last year the industry trade journal Mediaweek obtained an FCC report showing that 99.8 percent of the complaints the commission received came from a single entity: the right-wing Parents Television Council, a group that thinks Spongebob is a perv. So even if most of the audience finds a program kosher, one wingnut can trigger an FCC investigation.

Fearful of fines, broadcasters are policing themselves, routinely erring on the side of extreme caution. Last summer, skittish TV stations spiked an unexpurgated showing of Saving Private Ryan, even though the movie had previously aired without incident. Similarly, Louis has pulled such classic-rock standards as the Who's "Who Are You," Pink Floyd's "Money," and the Steve Miller Band's "Jet Airliner" from WNCX's playlist, because each contains a blink-and-you'll-miss-it swearword. This chilling response only plays into the agenda of the indecency hawks.

"You've got to have a standard that talks about the issue generally, rather than some 'seven dirty words' test -- you can say 'crap,' but you can't say 'shit,' and so forth," says Jack Thompson, a former Northeast Ohio resident and longtime antiobscenity crusader, who famously managed to ban 2 Live Crew's As Nasty as They Wanna Be from store shelves. "Because what you've got is the limitless inventiveness of someone like Howard Stern, who, if he's given a precise definition and listing of things he can't do, will then do other things that are just as indecent or worse, simply because they aren't on the list."

In other words, Stern should shut the hell up. Instead, he's bolting for satellite radio next year, though some legislators have already suggested regulating that medium as well.

Thompson and his ilk won't get their way unless our legislators pass this bill. Unfortunately, even liberals have been shamed into jumping on the bandwagon. A pair of local representatives, Sherrod Brown and Stephanie Tubbs Jones, voted in favor of the act. We called to ask why, but they were apparently too busy regulating the opinions of others to defend their own. Senators George Voinovich and Mike DeWine were similarly engaged.

You get the sense that none of these folks will be happy until all that's left on the air is farming reports and the occasional Amy Grant Christmas special. This is what passes for protecting the nation's children. But for guys like Bill Louis, there's a slightly more practical method of watching over his kids -- one that doesn't involve Washington bureaucrats.

"I don't play Howard Stern in my car when my seven-year-old is there," he says. "Once she's dropped off at school, I should be allowed to listen to what I like."

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