Howard v. the FCC: legal case and regulatory decisions

Stern

In the world of radio talk shows, there can be no question that shock-jock personality Howard Stern is one of the most controversial show leads in history. From his first radio position to his recent problems with Clear Channel Communications Corporation, Stern has been a voice for left wing liberalists and an enemy of the religious right and politicians nation-wide. His notorious shows, which include topics of explicit sexual themes, racial jokes, and attacks on politicians and corporate America, are listened to by millions of fans each day, and as of June, 2004, were broadcast in 45 markets across the United States (Associated Press, 2004).

Throughout his career, Stern has been both hailed by fans and condemned by critics. One critic in particular, the Federal Communications Commission, has fined stations and companies airing the Howard Stern show more often than all other fines given combined, and has, for decades, aimed to silence the often-vulgar voice of Stern. This paper will discuss the fines levied against the Howard Stern Show by the FCC, and will outline the reasons for those fines. Additionally, this paper will discuss Stern's long history of battle against censorship in relation to the FCC, and will briefly discuss Stern's popularity among certain groups within the United States. This paper will show that while Stern is certainly controversial and disliked by many in religious, political, and women's rights communities, his strong voice acts as a symbol of free speech for many fans.

It was in 1987 that the FCC first fined the Howard Stern Show, following a campaign by the FCC to halt obscenity and pornography on the airwaves. Donald Wildmon, president of the National Federation of for Decency filed a complaint against the show, and the FCC followed with an expansion of their definition of indecency. The expansion included speech that discusses "sexual or excretory activities and organs," a topic which was popular on the Howard Stern Show (Kurtz, 1997).

Specifically, Infinity Broadcasting Corporation of Pennsylvania was fined for airing Howard Stern episodes containing explicit sexual material. While the decision was appealed, the appeal was lost. Following the initial complaint, the FCC heard complaints from Americans for Responsible Television, concerned about Stern's sexual content, and the African-American Business Administration, which was concerned over Stern's attitude towards blacks. By 1993, stations had incurred over $1.7 million in fines over Stern's radio show (Foerstel, 1997).

In 1993, the FCC again fined stations, following an explicit Stern show, citing indecency in relation to sexual and racial comments (Foerstel, 1997). A Las Vegas station incurred $73,750 alone in fines, following the complaints of a single listener, Al Westcott, who lived in the Las Vegas area. Westcott send the FCC a mass of transcripts and tapes from the show (Dauidson, 1999). Following the initial fine, the FCC fined four other stations in New York, Philadelphia, Baltimore, and Washington, D.C. $125,000 each for broadcasting the same nine shows in the initial complaint. A further fine, in December of 1992, was levied against a Los Angeles station was fined $105,000 for a combination of Stern broadcasts, again citing indecent sexual material. Infinity Broadcasting, the corporation owning many of the stations, was also fined a total of $600,000 for their failure to censor Stern shows, including a show in which Stern described masturbating to a photo of Aunt Jemima (Foerstel, 1997).

In spite of the critics of the show, Stern continued to do well with a certain audience, as shown by his firs book sales. Private Parts, Stern's autobiography, was distributed in the fall of 1993, and sold over a million copies (Schimke, 1997). Proceeds from the book were upwards of $3 million, and the book quickly topped the New York Bestseller List. However, critics continued to censor the book, such as Caldor Department store's refusal to carry the book. The store even went as far as to edit the Bestseller list to drop the Stern title (Foerstel, 1997).

However, a cable special released in the same year called the Miss Howard Stern New Year's Eve Pageant was the most popular non-sports event in the history of pay per view programming (Schimke, 1997). His autobiography, turned to film, did equally well in the box office. Howard Stern was obviously still in the graces of his wide fan base, despite FCC fines against him.

In 1995, Infinity Broadcasting agreed to settle FCC claims against Stern in a $1.7 million dollar settlement. By 2004, according to the Center for Public Integrity, the FCC had levied over $3.95 million in fines against indecency on the radio, and half of that total was levied against Stern and Infinity. Still further, the FCC has issued over $1.9 million in fines to shows syndicating the Stern program (Dunbar, 2004).

Perhaps Stern's most notable infraction was the 2004 fines, totaling $495,000 against 18 Clear Channel stations airing a single program of the Howard Stern Show. The fines were the first on record by the FCC citing more than one infraction of FCC regulations during a single show. Clear Channel Communications had pulled the Stern show from six stations in February of that year, after complaints of a show involving sexual descriptions and racist remarks. The sexual content cited in the infraction by the FCC involved Stern and his staff discussing their own sexual practices and the use of sexually enhancing creams. A total of 18 violations were noted in the single airing of the show (Kaplan, 2004).

As a result, Clear Channel radio elected to fire Howard Stern. According to the company, the February 24 violations cited went against the company's new zero tolerance decency standards, brought about following new FCC regulations. Additionally, the FCC had fined Clear Channel another $27,500 in fines regarding yet another sexual indecency citation (Kaplan, 2004).

Stern, on the other hand, states that his firing was a result of his criticisms of Bush and the FCC on public radio waves. According to Clear Channel, the offense which resulted in fines and his dismissal was the use of the word "nigger" on the show. Stern notes that this word had been uttered countless times, and never resulted in actions against him. Stern has noted that in his opinion, the FCC fines are actually aimed at stopping Infinity Broadcasting, the parent company, from expanding its business, since FCC suits often halt all activities of the company its fines are levied against. As a result, Viacom, Infinity's owner, would also suffer losses in both expansion as well as advertising. Since Viacom owns such companies as the CBS networks and MTV, it would be likely they would not continue to broadcast Stern, in an effort to retain their business (Kaplan, 2004).