Let's start with a history lesson. Nearly 18 years ago during the halftime show of Super Bowl XXXVIII, Janet Jackson and Justin Timberlake combined to create one of the most infamous moments in television history – the s0-callled “wardrobe malfunction.”
The incident led to a great deal of panic among CBS network executives, the network that carried the game. There was also much post-game angst over at their cable channel, MTV, who produced the show. In fact, MTV later received a lifetime ban from the NFL. Their sentence? Never ever producing a Super Bowl halftime show again.
CBS received the standard indecency fine of $27,500. It was later increased to $325,000, and subsequently hiked to a record $550,000. But the network never paid a dime when the fine was voided in 2011, a long seven years after the incident in question took place.
Oddly enough, it was the radio industry that ended up being punished, incurring the wrath of the FCC. That $27,500 per violation was a lot of dough for most radio stations back then – as it would be today. Many “shock jock” morning shows felt threatened, sometimes by their own companies. There were cases where talent was informed they would personally be responsible for any fines levied by the Commission.
Howard Stern became the poster boy for these so-called indecency penalties. He was the most visible and controversial morning talent at that time, his home station, WXRK, was in New York City, and he was syndicated on dozens of stations nationally. Stern's affiliates began to realize that one slipup by Howard, Robin. Gary, Fred, or Jackie could run up fines of $27,500 – times the number of stations that carried the show, not to mention the ultimate punishment – the loss of a station license.
Howard was hounded by the ambiguity of the FCC's vague standard. What phrases or behaviors actually constituted a fine? Somehow, Oprah could talk about vaginas on afternoon television, but the use of the same word on the Stern show could trigger an avalanche of fines – or worse.
It is not the least bit far-fetched to conclude the FCC and related pressures hastened Stern's exodus from broadcast radio to the safe haven of satellite radio where F-bombs abound and are allowed.
The chilling effect went well beyond Stern, making it difficult for less prominent morning shows to function normally. Lex & Terry, Drew & Mike, Mancow, and scores of other teams and hosts lived in constant fear of steep fines, and ultimately being blackballed by the industry. For many edgy radio shows, it was the worst of times.
I worked with many of these hosts and teams during these years, and the fear of FCC retribution was palpable. We even devoted sessions at that year's Jacobs Summit to censorship and personality radio.
And that's why today's conversations about the behavior of air talent and whether they should be regulated is timely and very salient.
Earlier this week, I opened up Radio Ink's morning email. At first it appeared normal. The lead story was about FCC Commissioner Nathan Simington, and the hope he'll be a friend of radio. Scrolling down, there was lots of hype for Forecast 2022 which began Tuesday at the Harvard Club in New York City, the annual gathering of radio's most prominent leadership. And Radio Ink included the usual smattering of press releases – job promotions, fundraisers, and the daily format change.
But in between all the standard content was a think piece titled “New York Times Aims At Audio.” What was Radio Ink's reaction to a feature story that appeared in the Times last week, “On Podcasts and Radio, Misleading Covid-19 Talk Goes Unchecked?” You could sum it up in their opening sentence:
“New York Times writers Tiffany Hsu and Marc Tracy do not like the fact that both radio and podcasts offer hosts the freedom to exercise their free speech.”
Radio Ink went on to point out the Times authors dislike hosts who debate the effectiveness of the COVID vaccine. Hsu and Tracy called out some of the companies that broadcast these shows and/0r distribute or own their podcasts.
Prior to Radio Ink jumping into the fray, I had already read the Times story, and thought it was generally an evenhanded piece about the quandaries posed by hosts who make false or misleading claims about the vaccine – and anything else. Who regulates this stuff? The FCC technically is in charge of broadcast shows; there is no government agency in charge of podcasts where hosts can say what they want.
But Commissioner Simington and the rest of the FCC apparently won't be proactive about what's being broadcast on America's airwaves. In fact, journalists Hsu and Tracy checked all the boxes and contacted the Commission for a statement. They learned the agency “reviews all complaints and determines what is actionable under the Constitution and the law.” The FCC went on to say the onus of what is aired falls on radio station owners, noting “broadcast licensees have a duty to act in the public interest.”
So there's that.
But here we are in 2021, and we're closing in on 800,000 Americans who have died from COVID – including a number of talk show hosts. And we're are certainly not finished with this pandemic.
Meanwhile, the Commission is pointing at the companies who hire the talent as the responsible parties when it comes to whether their host is misrepresenting the facts, much less the truth.
So, what is Radio Ink grousing about? That the Times wrote about guys like the late talk show host Marc Bernier who wrongly claimed that 45,000 have died from taking the COVID vaccine?
Or host Jimmy DeYoung Sr. who also died, but before expiring interviewed former Pennsylvania state rep, Sam Rohrer, who compared the vaccine to Nazi tactics, claiming the vaccine was not a vaccine?
Or Buck Sexton who raised the novel idea whether mass vaccine compliance could hasten virus mutations more dangerous than anything we've seen so far?
All three of these guys are (or were) on broadcast radio stations, all overseen by the FCC. They've been disseminating this information on the airwaves, on streams, in podcasts, and on social media platforms.
Interestingly, the story Radio Ink somehow missed on Tuesday was the courtroom victory for eight Connecticut families whose children were killed at Sandy Hook Elementary School back in 2012. Their judicial win came over radio talk show host Alex Jones (pictured), known spreader of conspiracy theories and yes, another broadcaster.
Jones is all over the Internet, he does podcasts, and he is syndicated on AM and FM stations by the Genesis Communication Network.
In both Texas and now Connecticut, Jones has lost a series of rulings in the past months. For years now, he has made the claim that Sandy Hook never happened – that it was actually a plot by the government to take away Americans' guns. Jones' followers, believing his conspiracy theory, have been harassing the victims' families for years.
Next year, juries will decide how much Jones will have to pay the families. Meanwhile, he was back on the air Monday, reminding his audience, “We have to defend all of our speech rights to say whatever it is we wish. That's the First Amendment.”
As the Times reported to its readers, Jones isn't a unicorn. There are many radio and podcast hosts spreading propaganda of varying degrees. Some companies, such as Spotify, Apple, and others say they have policies in place, in addition to more robust “content moderation.”
As we've seen in recent months, social media is now under fire by Congress, feeling the pressure from constituents to “do something” about misinformation that can influence minds, and perhaps impact the outcome of elections. And unlike most legislative activity in Washington, there is bipartisan support to go after platforms like Facebook, Twitter, and YouTube.
As we have learned, most social media companies have done the bare minimum in self-regulation these past several years. After all, they've got billions in advertising to run – clearly the variable that has outweighed the others. Now, they may pay the price for turning the other way – in regulations and restrictions, and of course, fines. And they're technically not regulated by anybody. That may be about to change.
What does any of this have to do with radio? Well, as we learned after “Nipplegate,” the tables can turn in a hurry. That FCC statement to the Times suggests the agency is saying it's up to radio ownership to make its move and be responsible for the content it broadcasts on its airwaves.
In the meantime, if the turrets turn toward radio as the conspiracy theories and misinformation get even more out of hand, radio broadcasters may face some of the same questions now being hurled at Mark Zuckerberg, Jack Dorsey, and the rest of social media's head honchos:
You knew this was happening so why didn't you do more?
You have policies in place, so why weren't you moderating content, admonishing talent, and taking action?
Are you being responsible to the communities you're licensed to serve?
Are these issues on the Commission's radar screen? A new Chairman – Jessica Rosenworcel – is on the way in. And stories like the ones in the Times and Radio Ink are reaching millions of readers and thousands of broadcasters and advertisers.
As a fan of radio and as someone who cares deeply about the survival and welfare of the medium, how this plays out over the next months and years affects us all.
As we learned from Justin and Janet, radio can suffer shrapnel wounds even if it didn't start the war, This time around, this stuff is on the airwaves. And radio companies don't have the deep pockets those tech companies have.
Freedom isn't always free. In fact, it can cost a pretty penny.
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