Stern Punishment

"The closest I came to making love to a black woman was, I masturbated to a picture of Aunt Jemima."

Believe it or not, that's a $20,000 joke. It's one of 34 excerpts from the Howard Stern Show for which the Federal Communications Commission has charged radio stations a total of $705,000.

In October, less than a week after it rejected a challenge to fines stemming from Stern's 1990 Christmas show, the FCC imposed $105,000 in new penalties on KLSX-FM in Los Angeles for shows that aired in 1991. Seven weeks later, the commission imposed a record $600,000 fine on Infinity Broadcasting, owner of three stations that carry Stern's show, for the same material.

In the wake of this onslaught, Greater Media Inc., owner of KLSX, admitted in March that it had started to edit the Howard Stern Show for the station's rebroadcast, cutting out the parts thought most likely to offend listeners and the FCC. "We wish to avoid further complaints to the FCC during the pendency of the litigation," Tom Milewski, Greater Media's executive vice president, told the Los Angeles Times.

Citing the prospect of such self-censorship, a coalition of broadcasters and civil libertarians has challenged the FCC's regulation of broadcast indecency in federal court. The coalition, similar to the one that defeated a 24-hour ban on broadcast indecency last year, argues that the commission's procedure for imposing indecency penalties violates the Fifth Amendment's Due Process Clause and the First Amendment "by establishing a system of administrative censorship while denying broadcasters prompt administrative adjudication and judicial review."

The coalition's complaint, filed in February, notes that FCC action against stations accused of broadcast indecency can drag on for more than a year before the commission makes a final determination. Furthermore, because obtaining judicial review is so difficult, only one case has ever reached a court.

Meanwhile, the commission may cite pending cases as aggravating factors in setting new penalties. The FCC has also been known to threaten further action, including license revocation, if broadcasters do not change their programming.

The complaint argues that the uncertainty created by this enforcement process chills speech and may affect the value of broadcast properties. It asks the U.S. District Court in Washington to order the dismissal of all pending indecency fines and to enjoin the FCC from pursuing new cases under the current procedure.