Indecency Bill on Fast Track

Feb 9, 2004  •  Post A Comment

The political firestorm ignited by Janet Jackson’s Super Bowl stunt appears likely to result in federal legislation encouraging multiple fines for incidents of indecency in the same program.
The new measure would fine violations at 10 times the current rate and greatly increase the chances a violation will result in revocation of TV station licenses. By the time it emerges from the legislative pipeline, the measure could include a ban on programming with violent content during hours when children might be watching.
Those issues and others will be the focus of dueling congressional hearings on Wednesday. The Senate and House plan to hold hearings on broadcast indecency at the same time.
The highest-profile witnesses are expected to attend the House panel, chaired by Rep. Fred Upton, R-Mich, who has been pushing for stiffer fines since even before the Super Bowl. Among those expected to appear are National Football League Commissioner Paul Tagliabue (confirmed at press time) and Viacom President and Chief Operating Officer Mel Karmazin (tentative, although a CBS spokesman said someone from the network will be there). A House source said invitations have also gone out to top executives at other major broadcast networks.
Rep. Upton, whose proposed legislation has White House backing, made it clear his hearing is just a beginning. “With my bill multiplying FCC fines for indecency tenfold, networks will do more than just apologize for airing such brazen material; they will be paying big bucks for their offenses,” Rep. Upton said.
The only confirmed witnesses at the Senate hearing, chaired by Sen. John McCain, R-Ariz, are the five Federal Communications commissioners. They will appear before the Senate panel first, and then walk across Capitol Hill to appear before the House panel.
The House may have the bigger names, but the Senate may have the biggest surprise for broadcasters. Sen. Ernest Hollings, D-S.C., the ranking Democrat on the committee, is said to be considering linking legislation to jack up indecency fines with his long-pending bill that would bar broadcasts of violent programming between the hours that indecent programming is already forbidden: 6 a.m.-10 p.m.
Legislation backed by Sen. Hollings-which has already been approved by the Senate Commerce Committee-would, like the Upton bill, jack up the FCC fines for indecency tenfold. But unlike the Upton bill, the Hollings indecency legislation would also require the FCC to launch license revocation proceedings against broadcasters found guilty of airing indecencies. The Hollings bill would require the FCC to revoke the license “unless it determines that revocation would not be in the public interest.”
The Hollings bill would also make clear that multiple violations of indecency within the same program can be punished by multiple fines. “In cases where the FCC determines that a broadcaster has aired obscene or indecent material, the FCC could find multiple violations within a single program if such broadcast includes obscene or indecent material from multiple speakers,” according to a background paper from the senator.
In a presidential election year, indecency legislation is given an excellent chance of passage, and President Bush is expected to sign it into law. The only issue now is how many riders will be added to the bill before the process is concluded.
“This was on a fast track coming out of last week’s hearing,” said Sean Bonyun, a spokesman for Rep. Upton. “It [the Super Bowl incident] just fuels the fire.”
“They’re going to demagogue the piss out of this thing,” said one industry lobbyist.
The Federal Communications Commission, which received more than 200,000 complaints about Ms. Jackson’s flashing, has also launched an investigation.
FCC Chairman Michael Powell said he was personally upset. “I am outraged by what I saw,” he said. In a statement, he promised the investigation would be “thorough and swift.”
“Like millions of Americans, my family and I gathered around the television for a celebration,” Mr. Powell said. “Instead, that celebration was tainted by a classless, crass and deplorable stunt. Our nation’s children, parents and citizens deserve better.”
An agency source said the contents of an FCC letter to CBS are confidential. But agency probes generally seek to establish a factual record about what occurred and who was involved.
According to a source the FCC is expected to investigate the entire halftime program, which included other sexually suggestive gestures. The suggestive context of the action is important because the agency’s case law defines 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.”
It was because of context that the FCC staff ruled last year that U2 rocker Bono’s use of the word “f**king” during NBC’s telecast of the 2003 Golden Globe Awards did not run afoul of indecency prohibitions-a controversial decision Mr. Powell, a Republican, is now trying to overturn.
The FCC has traditionally limited fines to the actual licensee of the broadcast stations. The FCC licenses stations, not networks. However, in this case Mr. Powell is also said to be considering fining CBS.
In addition, FCC Commissioner Michael Copps said he plans to use congressional indecency hearings to advocate license-revocation proceedings for particularly blatant offenders. He also plans to call for a joint broadcast and cable TV summit aimed at the adoption of a code to tone down sexual and violent fare. “If I were an industry leader, I might want to clean up my own act instead of inviting what they see as the heavy hand of government to get involved,” Mr. Copps said.
Mr. Copps, a Democrat, told TelevisionWeek he believes it is critical that cable participate in the industry code summit, because broadcasters say cable’s success with off-color fare has forced them to lower the bar. “I don’t think cable should presume they are immune from responsibility,” Mr. Copps said.