Lawmakers Rush to Beef Up Rules

Feb 16, 2004  •  Post A Comment

If Rep. Bobby Rush, D-Ill., gets his way, broadcasters may have to upgrade their studio facilities this year.
In the interests of making it easier for the public to document indecency complaints, Rep. Rush unveiled legislation last week that would require radio and TV stations to keep on file recordings of all their programming for at least 180 days.
“It’s only fair and reasonable,” the congressman said during a meeting of the House telecommunications subcommittee.
Rep. Rush’s measure was one of almost a dozen amendments that subcommittee members proposed last week to beef up legislation to crack down on indecency. Some form of indecency legislation, fueled by the furor over Janet Jackson’s Super Bowl halftime performance, is expected to sail through Congress this year and be signed by the White House.
The primary bill, sponsored by Rep. Fred Upton, R-Mich., would increase the maximum fine for a single indecency violation from $27,500 to $275,000 and raise the cap on a continuing series of violations from $300,000 to $3 million. Rep. Upton’s bill, without amendments, received the unanimous approval of the telecommunications subcommittee of the House Energy and Commerce Committee last week.
Rep. Upton, who chairs the subcommittee, predicted anti-indecency legislation would be ready for President Bush’s signature in March. While he did not allow any amendments to be added last week, he made it clear that colleagues would get their chance to add amendments when the full committee votes on the measure within the next couple of weeks.
Other amendments unveiled last week would:
* Encourage license revocations for broadcasters who are caught airing three indecencies;
* Expand the definition of indecency to include violence;
* Give the Federal Communications Commission permission to assess fines of up to 10 percent of a station’s annual revenues;
* Subject entertainers and other non-licensees who commit indecent acts on air to fines of up to $100,000;
* Pass along 90 percent of a fine for a network-originated indecency from an affiliate to the network; and
* Require the FCC to treat broadcast indecency incidents as serious violations of a station’s public interest obligations at license renewal time.
“I’m sure there will be more amendments” when the legislation goes to a vote of the full committee, Rep. Upton said.
While the broadcast industry has shown political clout in the past, insiders say it appears there’s little the industry can do to stop the legislative assault in this session. “It’s a free-for-all up there,” one industry source said. “You’re not going to stop indecency [legislation] in an election year.”
Said Rep. Upton: “Enough is enough for some of this stuff. We want to do something about it, and so does the public.”
There also have been moves to extend the prohibition on indecent programming to cable, although significant legal obstacles remain. One strategy being discussed is an amendment to encourage broadcasters and cable channels to agree to a voluntary industry code governing programming content.
During Senate indecency hearings last week, Sen. John McCain, R-Ariz., said the rising tide of off-color programming on cable has provided fresh ammunition for his campaign to require cable operators to break up their tiers and let subscribers buy only the programming they want-a proposal he believes would allow consumers to save money and avoid programming that offends them at the same time.
Sen. McCain said the case for a la carte cable is now “more persuasive than ever.”
The courts have in the past established limits on the government’s ability to control content on cable TV, even though rates are regulated to an extent. Because the signals are carried by wire and not over public airwaves, they carry a higher level of First Amendment protection than do broadcast signals.
The Senate has already approved legislation backed by Sen. Ernest Hollings, D-S.C., that would raise fines for violations and require the FCC to launch license revocation proceedings against broadcasters found guilty of an indecency violation. A coalition of Republican senators-George Allen of Virginia, Sam Brownback of Kansas and Lindsey Graham of South Carolina-introduced a separate bill last week that would mirror Rep. Upton’s, sticking to fines alone.
In related developments last week:
* Under pressure from FCC Chairman Michael Powell, the National Association of Broadcasters announced plans to convene an industrywide summit on programming standards this spring.
“The time has come for a full and frank dialogue with our media colleagues on voluntary programming responsibility,” said Eddie Fritts, NAB president and CEO, in a statement. In a Feb. 11 letter to Mr. Powell, Mr. Fritts said NAB members share the chairman’s concerns about broadcast programming. “Even before the recent incidents, our members were engaged in extensive discussions about indecent programming and what role NAB should play in the growing debate over broadcast programming,” Mr. Fritts said in an apparent reference to the Super Bowl flap.
In letters to NAB and the major TV network chiefs, Mr. Powell urged broadcasters to adopt a code that would put a damper on indecent and violent programming, and to consider routine use of time-delays for live programming. “I am confident that your industry can develop a new code, consistent with the First Amendment and antitrust laws, to once again demonstrate your unwavering commitment to serving the needs of local communities and to help stem the surging tide of offensive and excessively violent programming,” the chairman said.
In a separate letter to the National Cable & Telecommunications Association, Mr. Powell asked the cable industry to pitch in to “positively improve the quality of choices available to viewers and more fully empower families to shield indecent and excessively violent programming from their children.”
NCTA President and CEO Robert Sachs said the association takes the chairman’s concerns seriously and that he intends to respond to Mr. Powell after consulting with the association’s member companies. Some federal regulators have been advocating that broadcasters and the cable industry adopt a single programming code. But at least initially, the NAB summit will be limited to broadcasters.
“It would be difficult to ignore the role of cable and satellite in prurient programming,” said Dennis Wharton, an NAB spokesman.
* In response to Janet Jackson’s Super Bowl halftime performance, Viacom President and Chief Operating Officer Mel Karmazin told federal legislators last week that he has directed all of the company’s owned-and-operated TV stations to install equipment enabling them to bleep offensive material from live programming. At hearings before the House telecommunications subcommittee, Mr. Karmazin also said that a Viacom investigation-the results of which were turned over to the FCC-indicated that no one at any Viacom-owned company, including MTV, had advance notice about Ms. Jackson’s stunt. In addition, the Viacom chief said he has found no major wrongdoing by a company employee. “I’m not going to find a scapegoat so I can say somebody’s head rolled,” Mr. Karmazin said.
In his testimony, NFL Commissioner Paul Tagliabue said the league also had been blindsided. “I felt like I was kicked in the stomach,” he said of the halftime show.
Mr. Karmazin said he would not fight legislation that would target a network, rather than its affiliates, for indecency fines. “I would have no trouble being responsible for what we air on our broadcast networks,” Mr. Karmazin said. Nonetheless, he said he believes it would be helpful if the FCC would first define clearly what it means by “indecency.”
“When you are dealing with the First Amendment you have to be very, very careful,” he said.
Responding to discussion of the character of some Super Bowl ads, Mr. Karmazin said CBS standards-and-practices people would the network’s policies for ads. In addition, Mr. Tagliabue said the NFL might reconsider its sponsor
ship relationships with some advertisers, particularly with pharmaceutical advertisers.