FCC's Powell vs. Howard Stern on KGO-AM

Lauren Weinstein writes "Greetings. Tuesday morning on KGO-AM radio in the San Francisco Bay area, host Ronn Owens was interviewing FCC Chairman Michael Powell when Howard Stern called in. The resulting exchange was certainly interesting. The audio clip is available via my blog.

Comments

Michael Powell

[Eudaemonic Pie]

The funny part I heard on the radio this morning was Michael Powell denying his family connections had anything to do with his appointment. I would have more respect for him if he had combined his answer 'look at my resume' with an acknowledgement that all political appointments are just that -- political.

Re:Michael Powell

[HowlinMad]

He is allowed to challenge them in court, but here is the problem. Until the case is settled, or Viacom pays the fines, the paperwork to buy more stations, renew licenses, etc is halted. This effectively puts them out of business unless they pay the fine because they cannot afford to have that freeze while the court case is on going. Effectively, Stern cannot go to court.

Re:Michael Powell

[SallyMac]

Exactly, which makes the whole system suspect, as well as damaging to the first amendment. If you can't, without completely ceasing your buisness operations, fight what you believe is an unjust claim, it's a useless system.

Re:Michael Powell

[secret_squirrel_99]

If you can't, without completely ceasing your buisness operations, fight what you believe is an unjust claim, it's a useless system. Yeah. We shouldn't shut down businesses conducting illegal activities until after they've failed their appeals several times.

This is hardly the same thing. There is no LAW involved here. This is an FCC rule. It can therefore not by definition be illegal. Furthermore these rules are without judicial oversight, and without due process

Howard Stern is completely within his rights to challenge the rules and law - but he can't tell Viacom what to do, and Viacom has to keep revenue up.

Viacom via its former president Mel Karmazin has repeatedly said that they feel they are in the right and desire the opportunity to challenge these fines in court

What you are proposing is similar to allowing drug dealers to continue selling on the streets after conviction and fines until they've had a few appeals fail..

An even more ridiculous analogy. In your case these drug dealers have been convicted. They've had the opportunity of due process, they've been before the courts and they've been convicted. Show me where any of these things happens in the case of fines imposed by the FCC..

Once the ruling or conviction is made you can go ahead and contest it, but allowing the activity that caused the rulling to continue is worse..

Oh but there goes that pesky constitution again. They (stern and infinity) are entitled to Due Process. If the FCC believes it can show that there is impending harm to the public they can file for injunctive relief. A judge (remember judicial review? ) can then make the determination whether or not a temporary injunction is warranted.

This is what individual stays of judgement are for. On a case by case basis, a judge can allow continued operation until the appeal is completed..

Again completely circumventing Due Process.

Apparently Viacom did not see this as a viable option. It doesn't matter what Howard thinks the fines were against his employer or client, not against him. All he did was record an audio stream - he did not himself broadcast it..

Viacom has again said repeatedly that they have chosen to pay the fines, because once they have filed appeals, paperwork mysteriously vanishes, license application mysteriously become embroiled in additional redtape and their ability to operate going forward is crippled. One should have nothing to do with the other, but yet once they pay the fines and withdraw the suits, thing miraculously re-appear.

the fines were against his employer or client, not against him. All he did was record an audio stream - he did not himself broadcast it..

This time. Sadly Congress has now passed legislation making individual broadcasters as well as their employers liable. They've also raised the individual fines to a maximum of $275,000. While a few individuals like Stern might be able to afford a fine like that, the average broadcaster would be ruined by such a fine. As a result their speech is tempered, probably further than it needs to be. This is the textbook definition of chlling-effect.

A censored mirror is not a mirror

[Anonymous Coward]

Please dont represent it as one.

Smoke and bombast

[tgeller]

I read the transcript. Regardless of whether you agree with him, Powell held his own with dignity and respect. Stern's used the "Big Lie" strategy: Repeat something enough, and it seems like truth. Fine for entertainment, appalling for matters of law. Top that with ad hominem attacks and stonewaling, and you get quite a performance.

I'm disgusted, and hope he loses big.

Howard not being singled out?

[KatchooNJ]

I find it amusing that they deny that Howard has been singled out by the FCC... meanwhile, he received over 50% of the fines that the FCC slapped on broadcasters over the past five years.

Now you tell me if that isn't showing that they are trying to use him as an example! ;-)

Re:Howard not being singled out?

[stratjakt]

Right after Howard goes off the air, Powell agrees that there are probably morning zoo shows in any given market that are worse.

I think Stern's real point is valid. If there are limits, they need to be clearly defined and uniformly applied. If it's OK for Oprah talk about tossed salads and rainbow parties, then it should be the same for Howard or anyone else. If Bono can say the F word, then so should anyone else.

Hell, I've heard plenty of nasty stuff on dial-in Teeny Loveline shows.

The fact is, the FCC arbitrarily decides case by case. Powell ducks answering on the Oprah thing by saying it's "still under review at the commission". She won't be fined. She's too popular.

His comment that they won't let him come to court is valid too. You cant renew a license or buy another station with unpaid fines. So to start a legal fight regarding a fine would essentially mean shutting down Viacom.

Re:But who makes that distinction?

[Auckerman]

"If we censor Stern (who is strongly anti-Bush, if that's a coincidence I'll eat my shoe)"

If memory serves correct, Stern was one of the post 9/11/04 converts to Bush (along with the likes Dennis Miller) and did a 180 after the fines started going out.

Stern is right though, his show is no more racey than Ophra's. What we see happening is a case where laws are being selectively enforced. It's okay to talk about very overt sexual subjects in the feel good context of womens liberation, but in the "dirty context" of sex is fun. It's all about framing.

Re:Mirror

[underCat]

I've always loved this quote.

If you suck on a tit the movie gets an R rating. If you hack the tit off with an axe it will be PG. ~Jack Nicholson

Sig? No, thanks. I don't smoke.

Re: FCC Power

[fyngyrz]

The FCC should not have so much power over the media.

The FCC should not have any power over the content of media broadcasts. Regulation of station location and power to make sure they don't interfere, first come, first serve license allocation, that should be the beginning and the end of their little feifdom.

As it is, the FCC is just the (very) sticky little fingers of a wildly out of hand government. Blatant promotion of superstition over reason, inspiring fear of the power structure using fines and jail and confiscation as tools, supporting business monopolies for content management, and exercising broad control over rank and file sexuality and speech - this is what the FCC does in the domain of audio and audiovisual broadcasts. They have usurped the role of the parent and blunder madly about the broadcast media space, restricting speech and content left and right.

We can't do anything about it, either. Well, short of lively revolt, we can't. In the USA, citizens can't create law, can't dispense of bad law, and can't vote on created law. Nor can citizens elect anyone who might be able to effect such changes. That's what we get for letting them foist off a republic on us.

Bend over, Mr. Stern. Just about the time you get on satellite broadcast, no doubt in my mind at all they'll be regulated by the FCC as well.

Why do I say that? Intuition, driven by this experience: Every time I hear the boneyard (XM channel 41) guys say "fuck", I cringe, knowing some religious wacko out there is writing a letter to Michael Powel and crew. You watch. I'm not much for predictions normally, but I think this one, you can take right to the bank.

Sirius is exactly like XM in this context - exactly. You have to realize that satellite isn't like cable. It is not locked to a physical location; it is broadcast through the air, and anyone can hear it emanating from a car, from a boombox in some kid's hand, out of a business's doors, etc. I should know. I own five of the darned things. I'm one of the people that the sound of satellite radio hangs around like a raucous, crazed aura. I bought my kids XM receivers, and told them it was the "sound of freedom." I also pointed out that it wasn't likely to be allowed to persist, that they should enjoy it while they could.

My advice to everyone is get satellite radio now, while it is still the wild west of broadcast media. It is tons more fun than terrestrial sources at this point in time; but I don't think it can continue this way. You can bet your last dollar that the controlling elements that run the system are planning to legislate XM and Sirius into line with the rest of the censored media. Then what you'll have is simply higher fidelity blandness. The gold rush is now. That's exactly why Howard Stern is making the transition. But just as he sees the gold, so does the government, and it is absolutely certain, 100% supported by US history, that they don't like free speech. At all.