FCC 2016

With Justin Timberlake set to return to the Super Bowl halftime show for the first time since his infamous appearance with Janet Jackson in February 2004, the press is agog with lookbacks on the “Nipplegate” incident. But while the “wardrobe malfunction” occurred on live network television, it was radio that paid the bigger price.

The radio industry was hit with record-setting indecency fines and hearings with broadcasters on Capitol Hill after the game. Spurred in part by Jackson’s bare breast, the FCC’s unprecedented indecency crackdown dramatically chilled—and changed—morning radio.

While the FCC was already in full enforcement-warrior mode from 2003’s Bono/Golden Globes “f-word” incident and a Jan. 2004 $715,000 fine against Clear Channel for Bubba “The Love Sponge,” the Super Bowl halftime show sent shock waves across the radio landscape. In just over a week, the incident triggered 200,000 complaints at the Commission. That same month, Clear Channel announced a “zero tolerance” policy and by April it permanently booted Howard Stern from its six stations that carried the syndicated show after the FCC fined the company $495,000 for content that it aired during the Stern show.

As the crackdown’s torchbearer at the FCC, Michael Copps earned the nickname the “crusadin’ commissioner.” There was talk at both the FCC and in Congress about revoking licenses. The NAB formed a task force on indecency and held a Summit on Responsible Programming.

By March the Broadcast Decency Enforcement Act passed the House by a vote of 391 to 22, proposing to raise potential fines from $27,500 per violation to $500,000. There was even a “three strikes” mandatory hearing on license revocation.

In the new chilled environment, broadcast attorneys warned stations to be conservative. “I’m telling clients to put a delay on anything that’s live and coming from outside, if there’s any chance of a problem,” one communications attorney told Inside Radio in April 2004.

The chill caused programmers to scour playlists, removing or editing standards such as The Who’s “Who Are You” and Pink Floyd’s “Money.” Stations clamped down on live remotes and call-in contests. Publicly traded radio companies included warnings in their 10-Ks and annual reports about potential FCC fines.

Emmis Radio chief Rick Cummings told Inside Radio, “it’s not as easy” as the critics think to remove talk about sex when targeting a young hip-hop audience. Same for a rock station trying to stay viable with younger male listeners. “In 30 years, I’ve never seen it like this,” Cummings said. And while air talent is trying its best, they go to work “fearful,” he said.

By Oct. 2004, indecency posterchild Howard Stern was announcing his exit from broadcast radio to the FCC-free zone of satellite radio, marking the end of an era. Where “shock jocks” once ruled morning radio, safe morning shows were now in demand.

But the tidal wave that crested with Janet Jackson at the Super Bowl had little impact on the medium where it was broadcast. Radio stations racked up record fines but only three TV stations had ever been fined by the FCC for indecency by April 2004, despite the Golden Globes and “Nipplegate.” (CBS was later fined $550,000 for the halftime show but a federal appeals court tossed the fine.) Radio operators felt there was a double standard in Washington and Inside Radio carried headlines such as “TV Skates Free Again, While Radio Gets Spanked For Indecency.”

Now, some 13 years later, morning radio is hardly squeaky clean. And while you’d be hard pressed to find anything in morning radio today that meets the FCC’s indecency definition—“language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities”—that doesn’t mean conversations about sex or potty humor have been banished from the airwaves. Popular morning shows such as Philadelphia’s Preston & Steve deftly walk right up to the line of what’s permissible under the commission’s “vague and overly broad” indecency statute—without crossing it. But the days of morning show bits such as “butt bongo fiesta,” “Fartman” and “Whip Em Out Wednesdays” are long gone.