Indecent proposal Media moguls are sacrificing free speech on the altar of corporate empire-building BY DAN KENNEDY

DURING A RECENT hearing on the suddenly momentous issue of broadcast indecency, US Representative Edward Markey offered an unusual amendment. Aiming to expand the definition of indecency, the Massachusetts Democrat proposed this language: "It shall be considered indecent and patently offensive to contemporary community standards for the local media marketplace for a single person under Commission rules to own 3 television station licenses, 8 radio station licenses, the only newspaper in town, the only cable system in town, and all the Internet assets of such entities, within one community."

The punishment proposed by Markey was harsh indeed. Violators would be required to "(1) take remedial courses in the civic importance of media diversity and localism and the informational needs of citizens of a great democracy; and (2) shall be required to watch the movie ‘Citizen Kane’ over and over again until they flinch at the word ‘rosebud.’"

Markey’s amendment was offered in jest, of course, and it was quickly ruled out of order, as he knew it would be. Markey is no fan of sleaze: he’s signed on to legislation that would raise the fine for broadcast indecency from $27,500 to $275,000. But with his little joke, Markey succeeded in showing that there is something else going on. And it’s more important than Justin Timberlake’s simulated assault on Janet Jackson. More important than a recent, racially charged Howard Stern bit that veered into a discussion of anal sex. More important, even, than Bubba the Love Sponge, a Florida radio jock whose employer (make that former employer) was recently fined $755,000 by the Federal Communications Commission (FCC) for indecency.

That something else is money, and the indecent level of corporate media concentration that the FCC has allowed — even encouraged — so that companies such as Clear Channel, Viacom, Disney, General Electric, Time Warner, and Rupert Murdoch’s News Corporation can make huge, steaming piles of it.

THE MEDIA MOGULS are running scared, not because they have seen the light, and certainly not because they are afraid of having to pay fines (which, after all, can be chalked up to the cost of doing business). Rather, they are terrified that a truly aroused Congress might act to break up the conglomerates that control nearly all of our news, entertainment, and common culture. And they’re willing to sacrifice freedom of speech in order to maintain their privileged positions.

Consider the curiously supine behavior of John Hogan, who runs Clear Channel’s radio operations. Hogan recently fired Bubba, after reportedly having fought for quite a while to save his crude star from the clutches of the FCC. Hogan got even more attention when he dropped Howard Stern from the six Clear Channel radio stations that carried him. "Clear Channel is serious about helping address the rising tide of indecency on the airwaves. As broadcast licensees, we are fully responsible for what our stations air, and we intend to make sure all our DJs and programmers understand what is and what is not appropriate on Clear Channel radio shows," said Mark Mays, president and chief operating officer, in a statement posted on the company’s Web site.

Last June, though, Clear Channel was telling a different story. The FCC had issued a ruling sweeping aside what few ownership restrictions still remained on media companies. And Mays — whose company, with 1200 stations in total and up to eight stations in some cities (four in Greater Boston), is by far the largest radio conglomerate — was pissed off that the FCC hadn’t gone far enough. "Clear Channel is deeply disappointed with today’s FCC vote to re-regulate the radio industry," Mays said in a June 2 statement.

What changed? What transformed Clear Channel from an arrogant behemoth into a forelock-tugging favor-seeker? Simple: long before the Super Bowl halftime show, a substantial faction in Congress decided it had had enough of media concentration. The Senate voted last September, by a bipartisan margin of 55 to 40, to overturn the FCC’s June decision and leave ownership restrictions in place. A similar sentiment is widely believed to prevail in the House, but majority leader Tom DeLay, acting at the behest of the Bush administration, won’t let the measure come to the floor for a vote. Arizona senator John McCain has gone so far as to say that Clear Channel is too big, which is the first cousin to saying it ought to be broken up. In that context, getting rid of Howard Stern — who, as Salon’s Eric Boehlert reported last week, recently began harshly criticizing President Bush, a friend and benefactor of the Mays family — was an easy call.

"It’s a very explosive climate in Washington right now for the media companies," says Jeff Chester, executive director of the Center for Digital Democracy, a media-reform organization based in Washington. "They have to engage in their best behavior and politically tiptoe around. Because if they don’t toe the line and make believe they’re going to swear off this type of content, the Congress and Bush administration could act."

Thus what appears to be a story about sex and violence is actually about something much more interesting: money and power.

THERE’S SOMETHING almost amusing about watching FCC chair Michael Powell, the supremely confident, technocratic son of Colin Powell, transform himself from libertarian visionary to culture warrior.

Last September, in an op-ed piece for the Wall Street Journal, Powell justified the FCC’s efforts to ease ownership caps by arguing that free television couldn’t survive against cable and premium channels such as HBO without allowing the broadcast networks to own more over-the-air stations. The FCC last June proposed raising from 35 percent to 45 percent the proportion of the population that could be reached by a single broadcast group. Congress attempted to keep the limit at 35 percent, but eventually went along with 39 percent — thus allowing Viacom and News Corporation to keep all their stations — after the White House threatened to veto the spending bill to which the 35 percent limit had been attached. Not long after, Viacom’s CBS division refused to let MoveOn.org buy an ad to be shown during the Super Bowl that criticized the Bush administration, an act of corporate censorship that was truly indecent (see "Media," This Just In, January 30).

Powell’s op-ed was full of praise for shows like The Sopranos, which are suffused with nudity, violence, and profane language. And he came across like someone who wouldn’t mind seeing the pole dancers at the Bada Bing writhing around on one of the broadcast networks, writing, "A rush headlong into re-regulating free television is afoot, and if successful, would prove disastrous. Bringing free television into a more hostile regulatory environment will continue to drive investment to pay television and drive more sports and creative programs to pay television."

Powell was partly right. The Sopranos is among the best that television has to offer, and there ought to be a way for free broadcast TV to include intelligent programming aimed at adults who don’t necessarily want to pay for both a cable box and a premium channel. (In fact, there are no legal or regulatory restrictions that would prohibit broadcasters from offering such fare between 10 p.m. and 6 a.m., which is when more-daring programs such as NYPD Blue are shown.) The question is why Powell believes greater corporate consolidation is the answer to bad programming — especially since, as Los Angeles Times columnist Michael Hiltzik recently pointed out, those poor over-the-air broadcast stations are part of the same conglomerates that own the lucrative cable stations. HBO, for instance, is owned by Time Warner, which is also part-owner of the WB broadcast network. MTV is owned by Viacom, which also owns CBS, which — to bring it all back home — is why Janet Jackson and Justin Timberlake’s lame act was part of the Super Bowl halftime show in the first place.

With his bigger-is-better agenda under attack, Powell suddenly changed gears and began publicly agonizing over all that naughtiness on television and radio. When the FCC’s staff ruled that Bono’s use of the phrase "fucking brilliant" during the 2003 Golden Globe awards was not indecent, Powell announced that he would seek to overturn that decision. And when Jackson flashed that bejeweled breast at halftime, Powell pronounced himself to be outraged, thus launching the current witch-hunt.

"I think it’s a riot," says Rory O’Connor, president and CEO of Globalvision, a New York–based independent television production company. "Why? I’ll tell you why. Because I think Michael Powell has now been hoist on his own petard. He wants to deregulate and re-regulate simultaneously. He wants to deregulate all the ownership and re-regulate all the content. Guess what? It doesn’t work that way."

There is another, smarter way of reducing the amount of indecency on the air, and it has been best articulated by another FCC commissioner, Michael Copps. Unlike Powell, Copps opposes the headlong rush toward letting media conglomerates grow as big as they wish. And he sees a direct link between monopoly and indecency.

Take, for instance, a January 28 "town meeting" that the FCC held in San Antonio, the hometown of Clear Channel. In his remarks, Copps asked, "Are stations adding to the civic dialogue? Are they encouraging local talent? Are they reaching out to minority groups within the community? And — an issue on which I have focused attention since I came to the Commission — are they adhering to community standards or are they airing excessive amounts of indecent and violent programming? Few can deny that we are seeing a race to the bottom on our airwaves. Sometimes, I wonder if there even is a bottom."

Another way of putting it is that a media outfit can’t adhere to community standards if it’s not based in the community. Interestingly, this is something that would-be media reformers of both the left and the right agree on. For instance, Celia Wexler, vice-president for advocacy of the liberal group Common Cause, says of a locally based broadcaster, "He lives in that community. And he knows that if he puts a lot of crummy stuff on, people are going to holler at him directly. If I’m Rupert Murdoch, I really don’t care what the people in Boston think about what I run." Lara Mahaney, director of corporate and entertainment affairs for the Parents Television Council — founded by veteran conservative activist Brent Bozell — says much the same thing: "Whenever a network owns a station, they are not going to pre-empt their own programming based on community standards. The broadcaster is responsible for the license, but they’re also supposed to take into account things like community standards."

In getting at the indecency issue by dealing with conglomerate ownership, it becomes possible to improve programming without sliding down the slope toward censorship. Media scholar Robert McChesney, who helped found the organization Free Press (www.mediareform.net), says that by placing real limits on ownership, and by emphasizing such old-fashioned notions of broadcast regulation as service to the community, indecent programming will naturally shrink as a proportion of programming. "The current system makes what CBS and Fox do rational behavior," he says. "Vulgar fare is the least-expensive way to attract an audience and keep it. If you had a different market structure, you’d have less vulgarity."

You would also stop the would-be censors dead in their tracks. And make no mistake: they’re coming.