[Congressional Record Volume 140, Number 29 (Wednesday, March 16, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: March 16, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                         THE HOWARD STERN CASE

  Mr. D'AMATO. Mr. President, I rise to call attention to one of the 
most outrageous examples of bureaucratic abuses I have seen during my 
time in the Senate. The Big Brother in this instance is the Federal 
Communications Commission [FCC]. The manner in which this agency has 
dealt with one of my constituents, Infinity Broadcasting Corp., is 
simply unacceptable. It is a situation that everyone who respects our 
first amendment freedoms and due process in administrative proceedings 
must be concerned about.
  Infinity Broadcasting Corp., is a publicly traded New York company 
that is the country's largest company whose business is owning and 
operating radio stations. They have been in business for 20 years. Upon 
completion of pending acquisitions, they will own 25 radio stations in 
13 major markets, including stations in every one of the top 10 
markets. There are many diverse formats on their stations, including 
rock, country, oldies, all-talk, and all-sports.
  This sorry situation that I bring to the Senate's attention involves 
a recent attempt by Infinity to purchase a Los Angeles radio station. 
According to news reports, the Commission held up that sale because it 
did not like the content--the content--of one of Infinity's programs. 
It apparently did not matter to the FCC that the program in question 
would not even air on the station Infinity wanted to purchase.
  Now, the FCC clearly does not like this program--``The Howard Stern 
Show.'' The program is not everyone's cup of tea. I have been on it. I 
like Howard. But I know some people get offended by some of the things 
he says on it. That is OK. This is the United States of America. If 
they do not like it, they can turn it off or turn the dial.
  I am not here to debate the merits of Howard Stern. If you like him, 
you like him. If you do not, you do not. What I do know is that if the 
Federal Communications Commission, or any citizen in America, thinks 
that what Stern or anyone else says on the air is indecent, they can 
file a complaint. There are procedures for adjudicating those 
complaints. That is the way it should be. If Howard Stern, or Infinity, 
or anyone else, breaks the law, they should be punished.
  That is not what happened here though. And that is what bothers me 
greatly. What happened here was that because the Federal Communications 
Commission did not like this particular show, the Commission took 
revenge on Infinity, a publicly traded company with thousands of 
shareholders, by holding up the sale of the Los Angeles station to 
Infinity. A sale like this usually requires 60 days' turn-around at the 
Commission. This one has taken 271 days so far, and still has not been 
resolved.
  In fact, one Commissioner this past New Year's Eve day, Commissioner 
James H. Quello, told the New York Times that Infinity's KRTH 
acquisition would be ``delayed indefinitely'' because, he claimed, the 
Commission disapproved of Mr. Stern. As it turned out, the New York 
Times never checked with the other two Commissioners, who the following 
week repudiated the story and said that Commissioner Quello did not 
speak for them. But the harm had already been done--as this one 
Commissioner must have known. Infinity's stock price had dropped $200 
million--about 1 percent of its value over 3 trading days--and Infinity 
was forced to pay millions more in penalties for the delay to complete 
the purchase of the Los Angeles radio station.
  Now if a member of the Federal Communications Commission feels the 
content of a show is indecent there are steps that can be taken. That 
is OK. Those ways protect basic first amendment principles and the due 
process rights contained in the Communications Act and the FCC's own 
internal proceedings. Maybe this case got a lot of publicity because it 
involved a controversial entertainer. But precisely because it did 
involve controversy, the constitutional concerns become even more real. 
After all, often the law is not made in cases involving the most 
perfect of parties. The constitution was written to protect all the 
different voices in the ``marketplace of ideas''. The way I read the 
first amendment, dislike or disagreement with content is clearly not 
sufficient to punish Infinity in its other, unrelated business 
dealings.
  But here the Commission did just that. The Infinity case highlights 
an impermissible joining of two FCC proceedings that, as I understand 
it, are supposed to be kept separate--the sale of a broadcast license 
and the issuance of notices of apparent liability [NAL's], which is the 
Commission process for adjudicating indecency complaints. That this 
improper joining occurred over the enforcement of the indecency 
standard is particularly troubling. The FCC needs to be particularly 
careful in this area in light of the due process principles and first 
amendment concerns articulated by two unanimous D.C. Court of Appeals 
decisions. In both decisions, the court struck down the foundations of 
the FCC's enforcement schemes, which should tell it something.
  While four notices have been issued against Infinity, it is my 
understanding that Commission issuance of such a notice of apparent 
liability along with a proposed fine to a broadcaster does not 
constitute any determination that there has been a violation of the 
indecency standard. The Commission has found Infinity violated the 
indecency standard only once, and it issued a $6,000 fine for that one 
broadcast 4 years ago. The other cases are still pending at the FCC. 
Infinity has not yet been able to challenge the $6,000 fine in court, 
which it has told the FCC it intends to do. In each case, Infinity has 
denied any violation.
  It is these nonfinal notices of apparent liability that the FCC is 
using for proposing unprecedented fines now totaling over $1 million. 
And according to news reports--and this gets to the heart of what is 
wrong--the Commission has also used these same nonfinal notices as its 
basis for delaying Infinity's purchase of new radio stations. This 
appears to be in direct contravention of section 504(c) of the 
Communications Act, which provides basic due process guarantees to each 
licensee.
  Section 504(c) states:

       In any case where the Commission issues a notice of 
     apparent liability looking toward the imposition of a 
     forfeiture under this chapter, that shall not be used, in any 
     other proceeding before the Commission, to the prejudice of 
     the person to whom such notice was issued, unless (i) the 
     forfeiture has been paid, or (ii) a court of competent 
     jurisdiction has ordered payment of such forfeiture, and such 
     order has become final.

  Here there is no final court order on the indecency cases, yet the 
FCC is using these cases as a basis for delaying the acquisition of 
another station. This is one of the most blatant examples of abuse of 
regulatory power, arrogance and--yes--regulatory lawlessness that I can 
remember. Deliberately delaying a decision on an acquisition because of 
nonfinal notices of apparent liability is in direct violation of 
section 504(c) of the Federal Communications Act, which was passed by 
Congress specifically to ensure that due process rights of licenses are 
protected. Should an FCC Commissioner be above the law? How can we 
demand licensees follow the law if the FCC does not?
  The Federal Communications Commission has an obligation to comply 
with the direction of a Federal court and abide by the requirements of 
the Communications Act and the first amendment. It's that simple. If 
one or more Commissioners believe an indecency standard has been 
violated, there are administrative procedures for adjudicating such 
complaints. But they may not use their personal reactions--or 
incomplete enforcement proceedings--to penalize program content, or 
impede or delay a company from doing business and acquiring new 
broadcast property. Yet that appears to be precisely what happened 
here.
  This is a particularly worrisome form of administrative browbeating. 
If it can be done to Infinity because of one show, it can be done to 
any company tomorrow based on the content of a different program with 
which the Commission does not agree. Maybe tomorrow it is Rush Limbaugh 
or G. Gordon Liddy. Or maybe Jerry Brown or Lynn Samuels or even some 
of my colleagues who offer commentaries. Who knows whom it will be? I 
do not like some of the things I hear on the radio. But that does not 
matter, because this is the United States.
  So where do these guys at the Federal Communications Commission get 
off doing this? I find myself agreeing with a newspaper I do not often 
agree with. As the Washington Post stated in a recent editorial:

       [The Infinity] case points up a dangerous aspect of 
     government using its licensing and regulatory powers on a 
     part of the press to try to force changes in editorial 
     content. . . . Censorship is arbitrary, and Congress should 
     start thinking hard about getting government out of it.

  I ask unanimous consent that this editorial be placed in the Record 
at the conclusion of my remarks.
  That is exactly right. It would be a sad thing if the Congress of the 
United States has to get involved in setting straight something that 
should be so basic.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Jan. 15, 1994]

                         The Howard Stern Case

       Federal Communications commissioner Andrew Barrett and a 
     source close to Commissioner Ervin Duggan have told Post 
     staff writer Paul Farhi that no, there has never been any 
     agreement to delay or block the purchase of three radio 
     stations by Howard Stern's employer, Infinity Broadcasting 
     Corp. That's good--because there has never been any 
     justification for doing so. In fact there is no justification 
     for what the FCC has done to Infinity already--which has been 
     to hit the company with more than $1.2 million in fines for 
     alleged violations by Mr. Stern of FCC strictures on 
     ``language that describes in terms patently offensive as 
     measured by community standards . . . sexual or excretory 
     activities or organs.'' As Nicholas Lemann wrote on the 
     opposite page Thursday, the whole Infinity-Stern case points 
     up a dangerous aspect of government using its licensing and 
     regulatory powers on a part of the press to try to force 
     changes in editorial content.
       What the commission has been doing--and the possibility 
     that it could still move to wreck a $170 million purchase 
     because of what Howard Stern says on the air--is censorship. 
     Though access to the broadcast airwaves is limited and 
     therefore has been treated as a matter for close government 
     regulation, the enormous growth in available television 
     channels for programming, as well the proliferation of radio 
     stations, makes an even stronger case against the old 
     programming requirements that the FCC made up in the name of 
     ``fairness'' and ``diversity'' in program content.
       Mr. Stern's program can hardly be described as everyone's 
     idea of acceptable entertainment--to put it mildly--but the 
     same could be said about many other talk shows that are 
     readily available on the air at any time of day. Censorship 
     is arbitrary, and Congress should start thinking hard about 
     getting government out of it.
       Commissioner Duggan has said that ``the idea that we are 
     just sitting on'' Infinity's applications to buy stations 
     ``is just not accurate. It's premature to say we are blocking 
     the purchases.'' It shouldn't even be premature. The FCC 
     should make it dead wrong.

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