The federal government has settled a major broadcast indecency case involving Chicago radio stars Steve Dahl and Garry Meier, thus ending the prospect of the nation’s first federal court trial over alleged on-air indecency, it was confirmed Tuesday.
The Federal Communications Commission is expected to disclose Wednesday that it has dropped its indecency claim in return for Evergreen Media Corp.- owner of WLUP-FM and WMVP-AM-dropping a counterclaim that the FCC’s enforcement scheme on indecency is unconstitutional and that a $6,000 fine levied for comments by Dahl and Meier was unjustified.
The settlement also covers a subsequent case, against WLUP-FM personality Kevin Matthews. That involves $33,750 in fines for alleged on-air indecency in 1992.
Evergreen will make what will be described as a $10,000 “payment”-not a fine-but make no admission of liability in the Matthews matter. That case will be voided as long as Evergreen is not accused of another indecency violation in the next six months. The Dahl-Meier case is voided under the accord.
As part of the agreement, the government promises to issue guidance to the broadcast industry regarding its enforcement against broadcast indecency, which must meet a test of being “patently offensive” under a disputed parameter of “contemporary community standards.” Evergreen insisted that government enforcement is arbitrary.
“We’re delighted with the result because we have achieved through the settlement everything we sought in the court proceeding: the government withdrawing its case and agreeing to issue guidelines on enforcement,” said Eric Bernthal, Washington attorney for Dallas-based Evergreen, which was supported in the suit by the American Civil Liberties Union.
The settlement was signed by Bernthal and lawyers for the commission and the Justice Department. It will be presented for approval later this week to U.S. District Court Judge John Nordberg in Chicago, who has been overseeing the case against Dahl and Meier and would have presided over a trial.
The FCC-Evergreen standoff began with remarks by Dahl, Meier and two callers during shows on Aug. 19, 1987, and March 30, 1989, when Dahl and Meier were an afternoon team on WLUP-AM.
One conversation involved vivid characterization of nude magazine photos of former Miss America Vanessa Williams and another woman. A second involved a caller’s satirical allusion to a homosexual encounter at a children’s camp. A third involved a caller’s attempt at a joke about a gay bar.
The commission fined Evergreen $6,000, but the company, after exhausting its FCC appeals, refused to pay. That unusual decision forced the commission to refer the matter to the Justice Departent to initiate a civil action to collect the money.
That brought the government into Nordberg’s court. If the case had gone to trial, the commission’s original finding of indecency would have been set aside as the trial started from scratch in considering whether the Chicago duo violated the law.
Such a trial would have been the first inspired by an indecency case. There have been at least 14 indecency findings by the commission since 1987, and all have either been resolved with the fines paid or are pending. Such is the case with several stations cited for allegedly indecent comments by syndicated New York “shock jock” Howard Stern.
The settlement raises the question of whether the FCC will continue to pursue its pending cases against Stern and his employer, New York-based Infinity Broadcasting.
