Bring on the noise

We applaud Citadel for its decision to appeal the FCC's $7,000 indecency fine for playing an expurgated version of the popular Eminem song, "The Real Slim Shady," on KKMG(FM) Pueblo, Colo.

It would have been tempting to just pay the fine—another cost of doing business in an industry where it doesn't pay to anger government officials who control your future. Citadel is, after all, in the process of being bought by Forstmann Little and is undoubtedly reluctant to do anything to upset that $2 billion apple cart.

The fine of $7,000 for 408 airings is not much when you amortize it. But paying it would be a quick fix to a problem that will only get worse. Broadcasters must not acquiesce to a government edict that suggestive songs are indecent. Inaction would put broadcasters in the "I did nothing until they came for me" category.

That, unfortunately, is where the industry seems to be at the moment. Where is the indignation from the NAB and leading broadcasters? And where were they when KBOO-FM Portland, Ore., was fined recently for airing a hip-hop song by DJ Vadim with Sarah Jones called "Your Revolution," which packs the punch of social commentary and reads like poetry? The NAB should be screaming bloody murder but remains quiet, with the issue "under review." The issue should be under attack, with faxes and e-mails blazing.

And where is Chairman Michael Powell? Like NAB, he was laying low last week.

There was the suggestion that the ruling must be a brilliant gambit of his to have the indecency rules thrown out by giving broadcasters a decision so constitutionally porous as to provide them a gilt-edged invitation to relief from the courts. We're afraid even we can't grab at that straw.

Another scenario is that the chairman never saw the decision. It came out of the Enforcement Bureau, and at least one commissioner claimed no knowledge of the fine until press accounts after the fact. That one we can cling to, but it doesn't get Chairman Powell off the hook. He's the guy with the big office who is responsible for every action the staff takes.

As we noted here last week, Powell has consistently talked the talk on First Amendment protection for broadcasters. We remember his 1998 speech to The Media Institute, in which he characterized the scarcity rationale (Red Lion) and the uniquely pervasive rationale for content regulation (Pacifica) as "demonstrably faulty premises" and concluded that "the government has been engaged for too long in willful denial in order to subvert the Constitution so that it can impose its speech preferences on the public." Yes, we know there is an indecency law on the books that the FCC is obliged to enforce, but there is wide discretion in how it is applied, including taking into account contemporary community standards. There is no obligation to extend the chilling effect of rules rooted in "demonstrably false premises."

It's time for Powell to walk the walk, which is toward less chilling content regulation and away from the minefield. Citadel's appeal is due July 2. This fine should be history by Independence Day.