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FCC vs. Bubba: the politics of reining in the shock jocks

For fans of quality broadcasting and free speech, the Federal Communications Commission's recent proposal to slam shock jock Bubba the Love Sponge Clem with the agency's second-highest indecency fine ever brings some seriously mixed feelings.

Certainly, seeing regulators reel in a guy who asks other men about the size of their, um, naughty bits on air and depicts cartoon characters in sexual situations, makes sense.

Critics have often lambasted the FCC for not cracking the whip when obviously scatological material hits the airwaves, and a $755,000 fine against four Clear Channel-owned stations that aired Clem's material in Florida (including WXTB-97.9 FM, a.k.a. 98Rock, in Tampa) seems a sure attention-getter.

But some experts fear the effort to police extreme voices like Clem's may lead to a loss of freedom for far more substantive broadcasters.

"I don't think we've sorted out a bright line of what is permissible and what isn't," said Jeremy Lipschultz, a professor of communication at the University of Nebraska at Omaha, and author of a book about the FCC and the First Amendment.

"There are times when profanity tells a story," Lipschultz said. "There are all kinds of examples in prime time television that we can point to. . . . You have teens talking about premarital sex, for instance. If this signals a sea change of tighter enforcement . . . you very quickly enter a territory where you're likely to be infringing on fundamental free speech."

That's clearly the position of Clem and Clear Channel, who have responded to the FCC's proposed fine with a call to develop decency guidelines for all media, saying current limits aren't clear.

"I don't want to be an irresponsible broadcaster . . . I just need to know what the damn law is," said Clem, who has declined to speak with reporters directly, but talked about the possible fine at length on his radio show Wednesday morning. "Nobody knows. It's based on community standards. . . . Well, based on this community, I do pretty damn good. I'm (rated) number one."

Some of Clem's protests ring hollow. Though he presents the fine as reflecting the attitudes of one man, Jacksonville-based scientist Douglas Vanderlaan, it's been endorsed by FCC commissioners _ some of whom wanted a higher fine or revoked station licenses.

And Clem has a history, both with community controversy and the FCC. In 1998, he was fined $23,000 by the FCC for airing indecent material that included describing a member of his radio entourage receiving an enema; in 2001 he faced animal cruelty charges for broadcasting the slaughter of a boar in the radio station's parking lot. He was acquitted.

But some questions remain: Can the FCC curtail seamy content while allowing free discussion of controversial issues? And, given what already airs on commercial television and radio, isn't the barn door already wide open on this one?

Currently, the FCC judges indecency cases _ regarding material aired during the "safe harbor" hours between 6 a.m. and 10 p.m. _ on a case by case basis, evaluating specific complaints from the public about specific incidents. The proposed fines for Clem's material stem from a complaint Vanderlaan lodged in April 2001.

Washington attorney Arthur Belendiuk, a communications lawyer who has represented Vanderlaan free of charge, said the FCC's decision _ announced the day before a congressional hearing Wednesday on broadcast indecency _ was a clear message to broadcasters.

"The industry is now facing a decision . . . and the question is, "Who's going to be made the poster boy for the FCC?' " said Belendiuk, noting that the FCC also said station licenses could be revoked over future violations. "(Clear Channel) is being told, "You're taking an extremely large risk if Bubba gets out of hand again.' "

Belendiuk also scoffed at the notion that Clem and Clear Channel don't know where the lines of indecency lie in their programming.

"You can't engage in clearly sexually explicit conduct, excretory matters . . . the guidelines are fairly slim," he said, noting some of the material that prompted the current fine presented cartoon characters such as Fat Albert and Scooby Doo talking about drugs and sex. "If the idea is to excite and titillate . . . that's a problem. Everybody understands that difference."

The politics in play here are tough to ignore. Republican FCC Chairman Michael Powell, the son of Secretary of State Colin Powell, saw his public image plummet last year while advocating a loosening of restrictions on the number of TV stations one company could own, inflaming both conservative and liberal groups.

Conservatives said huge companies such as Clear Channel rake in profits with explicit shows. They complained that Clear Channel's size and influence _ it owns more than 1,250 stations across the country _ insulate it from advertiser pressure and (relatively small and infrequent) government fines. Liberals, meanwhile, complained that monopolies cut out alternative programming.

Now Powell has focused on broadcast decency _ suggesting the agency increase fines for individual incidents from $27,000 to $270,000 and supporting the proposed Clear Channel fines.

In the process, he's kickstarted an issue that speaks directly to President Bush's conservative base during an election year, with the added bonus of possibly fracturing the coalition that made such a stink on the media ownership issue. "The strangest bedfellows are being made across the board . . . (with) people who generally argue for smaller government and less regulation in every other area, advocating more regulation in indecency," said Robert Thompson, head of the Center for the Study of Popular Television at Syracuse University. "It makes sense that if you give (conservatives) what they want on indecency, maybe they'll be less insistent on media ownership issues."

But Matthew Felling, of the Washington-based Center for Media and Public Affairs think tank, noted that government appointees can sometimes do the right thing for purely political reasons.

"Without a doubt, Powell has been one of the more political heads the FCC has ever seen," said Felling. "But . . . the public has been looking for some semblance of consistency from the media in terms of profane material, and Powell is opportunistic enough to see that this is a win-win situation. He looks good in the public's eyes and climbs up the ladder in terms of Cabinet position considerations."

Meanwhile, advocates of free speech worry that the antics of shock jocks such as Clem and Howard Stern (who earned a $1.7-million fine for Infinity Broadcasting in 1995) may push the FCC into outlining specific guidelines for broadcast content that could seriously curtail other speech _ such as a list of banned words.

"I'm not sure we want everything on TV and radio brought down to the level of an 8-year-old," said Syracuse University's Thompson, citing a classic Seinfeld episode in which the characters wagered on who could refrain from a certain kind of sexual activity longest.

"This method of looking at complaints from a community and (ruling) on a case-by-case basis is messy," he said. "But I don't know if you can codify it any further."

And parents faced with a growing tide of explicit content on TV and radio are increasingly desperate for regulators to take action.

"I'm not a fundamentalist religious person or whatever they're calling me . . . I'm just a parent who is paying attention to what's going in his son's ears," said Vanderlaan, who began protesting Bubba's show after realizing his teenage son was a listener. "I'm not out looking for causes. But somebody needs to stand up and pay attention."

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