Jack Thompson weighs in on the CBS/Stern lawsuit.

Howard Stern’s Chief Nemesis Defends Him Against CBS

Jack Thompson, Howard Stern’s chief nemesis (“This lunatic lawyer in Miami got me off the air”) took the radio airwaves this morning and defended Stern in the face of the blockbuster lawsuit filed yesterday by CBS.

Thompson appeared on Clear Channel’s WFLA-AM in Orlando—a station off which Thompson knocked Stern in February 2004—to explain that CBS’s lawsuit against Stern is without merit, both on the facts and on the law.

The core allegation in the CBS suit, which seeks in excess of $200 million in damages from Stern, Stern’s agent Don Buchwald, and Sirius, is that Stern harmed CBS Radio (then known as Infinity) for promoting his move to Sirius for well over a year, thereby converting valuable CBS airtime to his own and Sirius’ use.

There are huge factual and legal problems with CBS’s argument, as Thompson outlined today on the radio:

First, CBS had every opportunity to “dump” anything Stern had to say about Sirius. In November 2004, Jack Thompson was part of a $3.5 million Consent Decree entered into between Viacom/Infinity and the Federal Communications Commission whereby Infinity promised to put into place and did install new and better technology to edit the Howard Stern Show in real time as it was being aired. Thus, Viacom/Infinity/CBS had in place the enhanced “dumping” capability to utilize the time delay to remove all references to Sirius and his announced move. CBS chose not to do that. CBS then chose not to remove Stern from the air for the promotion of Sirius, except for a paid one-day suspension last November.

Secondly, the reason why CBS chose not to edit Stern that is that Stern’s Arbitron ratings remained high and were arguably even enhanced by people tuning in to hear daily about Stern’s running feud with CBS and his move to Sirius. In other words, CBS actually used Stern’s discussion of the move to Sirius to make more money for CBS. CBS, however, now claims that Stern’s discussion of Sirius cost it money. Just the opposite is the case.

Thirdly, CBS is proceeding in this lawsuit under the bizarre notion that because Stern has made money--$200 million in accelerated payment of Sirius stock—that CBS is entitled to the extra money Stern has cleverly made. The measure of damages, however, in a lawsuit is based upon what the plaintiff has lost not what the defendant has made. CBS needs better lawyers, but Thompson learned that two years ago. CBS’s Steve Lerman at Leventhal, Senter and Lerman is a tactical idiot.

In sum, then, CBS used Stern and the “Sirius issue” to make money, not lose money, and because Stern personally made money in the process as well, the CBS suit looks like exactly what Stern says it is: “a personal vendetta by CBS’ Les Moonves.”

Finally, Viacom/Infinity/CBS has always, always been more legally and morally culpable for putting Howard Stern on the air than Stern himself, as it corporately decided to allow him, for more than twenty years, to mentally molest minors for money---money that went to the giant corporation which used Stern as a money machine.

Stern has always been unabashed in describing himself as “a pornographer who puts a pornographic radio show on the air.” Stern really can’t help being himself. Now CBS’s Les Moonves, like Claude Raines’ character in Casablanca, is saying “I’m shocked, shocked I tell you, to find out” what has been going on here?

Put another way, a pimp is more culpable than his prostitute. CBS pimped Howard Stern for two decades for all he was worth to them, and now they’re shocked to find he is a prostitute who has sold his wares to the highest bidder? Please.

The FCC is set shortly to hand down new decency fines against stations for airing indecency on the Howard Stern Show. Miami attorney Jack Thompson ought to know. He is the complainant, and he has received FCC notices indicating this will happen.

If anyone wants to know the underlying strategic reason CBS has sued Stern, this is why:

When the FCC hands down these new fines, some of which may be huge, CBS wants to be able to say “We were unable to control Stern to stop him from airing this stuff. We even couldn’t stop him from promoting Sirius.”

Good luck on that one, CBS. CBS Radio is clearly run by a bunch of liars, and they deserve precisely what they are going to get—everything from the FCC and nothing from Stern.