With hundreds of radio and TV channels, entertainers are finding it difficult to cut through the clutter. One way is to say or do something shocking that will attract the attention of other media, the public and the government. Enterprising rock bands used to try to get songs banned by authorities so record buyers would flock to stores to hear what they were missing.

Now it’s Janet Jackson’s breast and Howard Stern’s mouth. Following Jackson’s Super Bowl Breast Out, outraged viewers flooded the lines of the Federal Communications Commission. In short order, Congressional committees were convened to share the moment. There were fines, apologies (from Jackson, citing her wardrobe malfunction), and further outrage from those claiming the FCC was stamping out free speech.

Gray Cary media attorney Guylyn Cummings recently returned from chairing an American Bar Association forum where she says, “FCC people were getting an earful from broadcasters.”

The federal government’s role as protector of the airwaves stems from the fact that the broadcast spectrum is a scarce resource; broadcasters such as ABC, CBS and NBC and radio stations receive their licenses from the feds. The fact that broadcast is a “pervasive medium” also works in favor of the government’s rule.

But what about cable, the Internet and communications media the government doesn’t own? HBO’s “The Sopranos,” for example, features almost nonstop use of the “F” word. The FCC doesn’t seem to mind. Cummings says technology may be the answer.

“Technology is going to get to a point where you can screen out (material), instead of the government standing in front of your TV. The movie industry is looking at software that will automatically screen out any kind of nudity or offensive language. At some point, everyone will have that type of technology in their radios and TVs. We see it on the Internet, with Net Nanny.”

In the meantime, there’s a level of censorship, says Cummings, and the debate has moved on from prohibitions against “obscene” speech to “indecent” speech. Obscenity has been described as utterly without artistic value, but indecency can be less. How much less is what all the outrage is about.

“Indecency is expressing sexual conduct,” says Cummings. So, when U2 singer Bono said “f——- brilliant” on an NBC Golden Globes awards broadcast, the FCC originally said that it wasn’t indecent because it wasn’t describing a sex act. The agency subsequently reversed itself. Broadcasters have since asked the FCC to change its ruling, and permit the “F” word used as an adjective.

“Once you start drawing lines as to what is decent and indecent, or the religious right becomes the group that controls what content we have, I call it the lowest common denominator effect,” Cummings says.

With indecency a matter of the latest FCC ruling, broadcasters may suffer from a chilling effect, says Cummings, who has represented Clear Channel (the San Antonio-based company that took Stern off its stations), but not in this matter. On June 9, Clear Channel agreed to pay a fine of $1.75 million to resolve indecency complaints against Stern. In 1995, during the Clinton administration, Infinity Broadcasting paid a $1.7 million fine to settle charges against Stern. The latest Stern settlement follows a $755,000 fine Clear Channel agreed to pay earlier this year for indecent chat on the Bubba the Love Sponge show. Clear Channel subsequently fired “Bubba,” disc jockey Todd Clem.

“This is one issue all the FCC commissioners are paying attention to,” Cummings says. “It’s politically sensitive; it has reached the electorate and they ( FCC commissioners) know that.”

“I think it’s politics,” says Buchanan Ingersoll’s Cooley. “It’s going to go with the ebb and tide of whatever administration is in office.”

Cummings says she doesn’t listen to Stern. “To be honest ... he’s a little gross to listen to. There’s a lot of magazines I don’t buy but would protect somebody’s right to read.”

— Richard Acello