FCC and Courts Grapple With Public Complaints Over Radio's `Shock Jocks'

WHILE driving her four young children to school one morning in Detroit, Terry Rakolta turned on the car radio. On three stations, talk-show hosts were discussing human sexual organs, remarking on excretory functions, or using profanity.

Had she been driving in Los Angeles, New York City, Philadelphia, Dallas, Buffalo, Chicago, or other major cities, so-called "shock jocks" would have been filling the airwaves there, too, with talk that the United States Supreme Court and the Federal Communications Commission (FCC) have defined as indecent. Many of the programs are the top-rated shows in their markets.

The large and growing numbers of AM and FM radio stations across the US offering sexually graphic and titillating programming are challenging the legal definition of decency under the free-speech rights of the First Amendment. The values the programs accept raise questions for many about the stations' responsibility to the public interest.

Even while the public, including children, tunes into the programs by the millions, some broadcasters and public-interest groups predict that a new Supreme Court definition of "indecency" on the public airwaves may be the ultimate result.

Recently, the FCC imposed a fine of $600,000 on Infinity Broadcasting Corporation, the parent company of WXRK-FM in New York City and one of the nation's largest radio companies. The station is home to the shockmeister of the shock jocks, Howard Stern. His program is the No. 1-rated radio show in New York in the morning time slot, and is also No. 1 in Philadelphia, Los Angeles, and Washington, D.C. More than 3.5 million people listen to Mr. Stern, according to an Arbitron survey. The fine is the largest ever imposed on a broadcaster. A 20-page transcript

The FCC complaint against Infinity, the result of listener complaints, included 20 pages of transcripts quoting Mr. Stern's sexually explicit on-air discussions with guests. Infinity has until Feb. 16 to respond to the complaint before the fine is levied.

Some broadcasters feel caught between FCC actions, which they believe have a chilling effect on free speech, and the industry's need to police itself. "In order to enjoy First Amendment rights, we have to protect the worst among us," says Robert Fox, chief executive officer of KVEN-AM and KHAY-FM in Ventura, Calif., and a board member of the National Association of Broadcasters. "We have to protect those voices that cause disagreement, or bring a type of humor some people don't enjoy. But the courts are going to have to determine if [the shows] meet community standards of decency."

Mrs. Rakolta, head of Americans for Responsible TV in Bloomfield Hills, Mich., reflects the views of many public-interest groups and some broadcasters.

"We're not saying there is no room for Howard Stern and his format," she says. "We say after 10 p.m., go for it. But he's on now when millions of children have access to his material. I believe we have an electronic ecology, an electronic environment to protect. At what point do we say, `We have 65 million children in this country, and the public airwaves are for them, too'? Haven't license holders pledged to operate in the public interest?"

The FCC defines indecency on the airwaves as descriptions of sexual organs or excretory functions that are "patently offensive" when measured by contemporary community standards. "In the case against Infinity," says Bob Ratcliffe, assistant chief of law for the FCC's Mass Media Bureau, "we felt the material [from Stern] was presented in a pandering manner with no purpose other than to titillate."

Federal courts have ruled that indecent broadcasts are legal as long as they are aired during hours when children are not likely to be listening. An appellate court established a "safe harbor" between 8 p.m. and 6 a.m. to allow indecent speech (which is protected under the First Amendment) to be broadcast. `Safe harbor' shortened

Recently, Congress passed a law shortening the "safe harbor" to from midnight to 6 a.m. A host of broadcasters and public-interest groups have filed suits in the US Court of Appeals in Washington, D.C., to block the change.

Gigi Sohn, deputy director of the Media Access Project in Washington, D.C., a public-interest law firm, says the FCC has brought the problem of shock jocks on itself. "By deregulation, the FCC permits broadcasters like Infinity, who really don't care about the public interest, to come in and do what they can to make a buck," she says.

The FCC used to require radio-station owners to wait three years before selling a station. "That encouraged broadcasters to make roots in the community," says Ms. Sohn. "The FCC changed the rule to one year, allowing for [quick sales] and causing the prices of stations to spiral. That brought in a new breed of broadcaster."