The Wisdom of Solomon

ith his wire-rimmed spectacles, subdued tie and penchant for genealogy, David Solomon is the last guy you'd imagine spending time parsing the "F" word, listening to transcripts of radio broadcasts about oral sex and judging whether the publicly bared breast of a pop star is indecent. But for him, it's all in a day's work.

Actually, it's all in a day's work for 35 lawyers. Solomon is their boss, chief of the Enforcement Bureau at the Federal Communications Commission, and as such, the arbiter of what is and isn't clean enough for the public airwaves. Lately, Solomon has been busier than Janet Jackson's publicist.

The Enforcement Bureau fields hundreds of thousands of complaints from outraged consumers, some of whom are convinced that radio shock jocks and salacious TV represent the decline of Western civilization. Solomon and his colleagues do the legal dirty work of deciding which ostensibly tawdry acts and utterances exceed the federal indecency standard. The most publicized question that recently landed on Solomon's desk is whether Justin Timberlake ripping off Jackson's bra in a Super Bowl half-time performance on CBS is, to use the layman's term, dirty.

It's a business that involves splitting hairs. The FCC defines broadcast indecency as "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." Consider all that in light of the distinct meanings you get when you use a certain four-letter word as a verb, adjective or exclamation, and you're walking in Solomon's shoes.

Following NBC's broadcast of the 2003 "Golden Globe Awards," the FCC received more than 200,000 complaints about musician Bono's acceptance speech, in which he said, "This is really, really fucking brilliant." In an eight-page opinion, Solomon reasoned that Bono's statement "does not describe or depict sexual and excretory activities and organs. The word 'fucking' may be crude and offensive, but . . . the performer used the word 'fucking' as an adjective or expletive to emphasize an exclamation."

Solomon had history on his side. The bureau has found that offensive language used as an insult, for example, is outside the FCC's jurisdiction. To be indecent, the "average person" must find the material in question appeals to "the prurient interest," depicts or describes, "in a patently offensive way, sexual conduct" and that it lacks "serious literary, artistic, political or scientific value." Bono's dropping of the F-bomb did not meet that three-pronged test. Moreover, the complaint flew in the face of case law that protects the use of four-letter words in nonsexual contexts.

Solomon's decision in the Bono case "was entirely consistent with precedent," says former FCC chairman William Kennard. But the Harvard-educated attorney's analysis was less popular with current chairman Michael Powell. In March, amid a national decency debate launched by Jackson's performance, the FCC commissioners overturned Solomon's decision, saying the legal precedents he cited "are no longer good law."

The controversy has unfolded at a time when the FCC, which regulates communications industry competition and sets public broadcasting safety standards in addition to patrolling the decency front, is flexing its muscles. In the late 1990s, the communications marketplace was evolving faster than the FCC's nearly 70-year-old bureaucracy could manage. Partly to save the agency from obsolescence, in 1999 Kennard merged all enforcement functions into one bureau. He put Solomon in charge of managing the process. "I needed someone who was a longtime career employee who would be trusted. And David was the perfect guy," Kennard says.

Kennard adds that he "always knew that David was destined for a bigger role." Solomon certainly got it in the Bush administration. Under Powell, the FCC has proposed more indecency fines than in the previous seven years combined. Complaints in 2003 set a record, topping 240,000. Only 10 days after the Super Bowl half-time show, Powell told a congressional subcommittee that the "infamous display . . . represented a new low in prime time television."

Decisions like Solomon's Bono opinion may be legally unassailable, but today, they are politically untenable. Powell has struck the pose of aggressive regulator, unafraid to unsheathe the FCC's "enforcement blade," he told lawmakers. The agency "has already begun wielding our sword," he said, proposing some of the largest fines in FCC history, including $755,000 against radio conglomerate Clear Channel for airing a cartoon parody by shock jock Bubba the Love Sponge that would make porn tycoon Larry Flynt blush.

Advocates for children and consumers are adamant that the FCC put some teeth into decency enforcement. The agency, they say, should levy bigger fines and threaten license revocation for repeat offenders. In March, the House approved a bill raising the maximum fine on broadcasters from $27,500 to $500,000.

In the midst of the uproar, Solomon remains the calm voice of reason. He says he only watches TV for about an hour each night to unwind, and he expresses no animus toward broadcasters. The FCC may receive thousands of complaints about one program that is legally decent, he explains. Yet only one person might protest material that meets the indecency test.

That's the political reality. But Solomon dwells comfortably, by all accounts, in a legal shelter, judging each case on its potentially prurient facts. So what did he think of the Super Bowl half-time show? It turns out Solomon didn't see it, and won't offer thoughts on a pending case anyway. He did watch the game, though, and filled up on the incessant replays of the incident.

Solomon learned of the public outrage Monday morning, from his wife, whom he met in law school. She spotted a story in the newspaper and said to her husband, "You're going to be busy today." But for Solomon, the tempest was all in a day's work.