"Un-Liberating the Airwaves:

WFMU's Ken Freedman on the Post-Janet Jackson FCC"

Dave Mandl, Brooklyn Rail

Dave Mandl (Rail): How have things changed for radio broadcasters in
the wake of Janet Jackson's Super Bowl performance?

Ken Freedman: Things have changed drastically in recent months. As
recently as last fall, the Federal Communications Commission (FCC) issued
a series of decisions that loosened their language rules
considerably — ruling, for example, that the word "fuck" was permissible if
used non-literally, as an adjective. Things have now not only reverted to
the way they were before, they've become much more rigid than ever.Although there have not been any new rules passed into law yet by either
the FCC or Congress, it's an entirely new landscape for TV and radio
broadcasters. And as is always the case with the FCC, there are absolutely
no written guidelines or definitions to help broadcasters determine what
is legal speech and what is illegal speech.

Rail: Does this affect mostly high-profile broadcasters, or is no one
under the FCC's radar any more?

Freedman: It's safe to say that no one is under the FCC's radar. Although
most language fines have been leveled at larger commercial broadcasters,
the FCC has historically fined many small community and college stations
as well. And small non-commercial stations have (historically) had to pay
the same fines as larger commercial stations. I think it's also safe to
say that the FCC's most inexplicable and unfair language decisions have
been leveled at small non-commercial stations. The best example of this
was KBOO's airing of a Sarah Jones poem called "Your Revolution," which
was clearly a feminist poem, not sexual in nature, but it contained the
phrase "blow job." The FCC gave KBOO (a small, non-commercial, community
station in Portland, Oregon) a $7,000 fine. KBOO spent double that in
legal bills fighting the fine, but they eventually prevailed. Bear in mind
that this case was several years ago, well *before* the current crackdown
began.

Rail: So why now? Is this really just because Janet Jackson flashed a
breast on TV? Are there politics at work here — say, kissing up to the
religious right? Or is this crackdown the kind of thing that some FCC
member was dreaming of already, and Boobgate provided a golden
opportunity?

Freedman: The Super Bowl incident just added momentum to a process that
was already in place. Due to rulings like last October's "Bono" ruling, TV
and radio stations had been getting more and more adventurous with regard
to sexual talk and antics on the air. For years, one of the FCC's five
commissioners (Michael Copps, a Democrat) had been lobbying for more
severe FCC punishments for language violations. He had been getting
ignored until earlier in 2003, when several highly publicized incidents
(including the Opie and Anthony "sex at St. Patrick's" broadcast, and the
Madonna-Britney kiss) started giving him some traction. Then there was the
Bono ruling, which really started the censorship wheels rolling. And then
the Super Bowl just ignited it all and turned it into a hot political
issue in an election year.

The FCC claims they received 200,000 emails in the days following the
Super Bowl. (They now claim that closer to 800,000 emails and letters have
been received about this.) This put enormous pressure on Michael Powell
(FCC head honcho) to deal with it. Powell took an enormous public black
eye over the FCC's ownership issue last year [when the FCC relaxed
restrictions on the number of stations individual companies could own]. Up
until the Super Bowl, the ownership issue was the FCC's "most popular"
debate ever, and the public came out largely *against* the FCC's stance on
it. Powell couldn't politically afford to ignore Boobgate after the
ownership fiasco. In fact, Powell did a 180-degree about-face on language.
Up until the Super Bowl, Powell had a fairly sane approach to the
censorship issue. He used to make public pronouncements that he didn't
want the FCC to become the nation's nanny, etc. No more.

This crackdown also has to be taken in historical context as yet another
in a series of language crackdowns that the FCC periodically undertakes.
But there's a big difference — during this crackdown, it looks like there
will be new federal laws passed regarding language and censorship. That's
never happened before. So even after this political storm subsides,
broadcasters may have a whole new set of federal laws on the books that
they will have to deal with for years.

Rail: You mentioned the fact that this is happening in an election year.
What's the significance of that? Is there pressure on the FCC from
senators or the White House, for example?

Freedman: There has been a great deal of pressure on the FCC from senators
and congresspeople, over the indecency issue as well as other issues. But
mostly, the indecency issue has simply become a point that incumbents can
point to during the re-election campaigns. They can tell their
constituents that they're cracking down on all the filth on the airwaves.

Rail: The fines that have been announced recently are enormous — orders of
magnitude higher than anything before. And with the FCC being much more
vigilant, it sounds like there's a very real possibility that stations
(especially smaller ones) may be driven out of business for relatively
minor obscenity violations. How do you think this will play out in the
long run?

Freedman: That is one of many big question marks in all of this. In the
past, the FCC has never had a separate rate structure for different-size
stations, or for non-commercial stations. Since the basic fines were
modest, even a small non-commercial station could withstand the "starter"
fine of $7,000. Now congress is talking about raising the starter fine to
$60,000, which would devastate small and medium-sized stations, commercial
*or* non-commercial. The senate has talked about tying the size of fines
to the size of the station, but that proposal hasn't even been scheduled
for a vote yet. So it's a fairly worrisome issue. The one thing that gives
me solace is that, in the past, the FCC has acted on less than one percent
of the obscenity complaints it receives. That's mostly because the FCC is
so severely under-funded. Hopefully it stays that way, but if Congress
allows the FCC to keep a portion of these huge new fines to help its
enforcement abilities, then that too could change.

Rail: Now that these obscenity guidelines are being codified as federal
laws, will the FCC finally be forced to at least be more specific about
what is and isn't allowed, or will they continue to leave stations
guessing?

Freedman: They'll most likely keep us all guessing. In all of the proposed new rules and amendments, there hasn't been a
single congressional request that the FCC define or even clarify their
language rules. In the early nineties, Congress did instruct the FCC to do
this, and it took the FCC ten years to do it. What resulted was an
Orwellian masterpiece, a fifty-page document (released in April 2001) in
which the FCC gave only examples of decisions they had made, but no clear
definitions as to what is permissible and impermissible. And on nearly
every page, they defended their lack of definitions by saying that they
are not allowed to engage in censorship or abridge the first amendment
rights of broadcasters. Michael Powell continues this doublespeak to this
day, saying that for the FCC to issue lists of illegal words and phrases
would have a "chilling effect" on free speech. In fact, the opposite is
true — if stations had clear guidelines, they would have *more* freedom
than they have in the current climate, where nobody knows what is allowed
and what isn't.

[Ken Freedman is general manager of WFMU-FM, Jersey City (91.1
FM.]