Barton Targeting Cable, Satellite

Mar 8, 2004  •  Post A Comment

The powerful new head of a key congressional committee that is already ramping up efforts against broadcast indecency is now turning his attention to the cable and satellite TV industries.

Rep. Joe Barton, R-Texas, said last week he’s planning to attend the National Cable & Telecommunications Association’s April 1 board meeting in Washington to lobby for family-friendly fare.

Topping the congressman’s wish list is a channel reconfiguration that would enable cable and satellite TV subscribers to get a basic package of PG material.

“Channels that have indecencies should be add-ons,” Rep. Barton said.

Rep. Barton, the new chairman of the House Energy and Commerce Committee, which has oversight of key broadcasting issues, told TelevisionWeek that his “suggestions” to the cable and satellite industries include a call for “voluntary industry action.”

“We just served notice that we are going to see what the cable and satellite [industries] do and reserve the right to address it legislatively at a future date,” the congressman added.

The shifting focus to pay TV is the latest wrinkle in a legislative furor that’s been building on Capitol Hill over indecency since Janet Jackson bared her breast on CBS during the Super Bowl halftime show. In a 49-1 vote last week, Rep. Barton’s committee blasted broadcasters with legislation that would raise the upper limit on indecency fines from $27,500 to $500,000 per incident-and make clear that on-air performers are also subject to the levies.

The Senate Commerce Committee, meanwhile, is tentatively scheduled to vote March 9 on legislation that would raise the maximum fine for an indecency violation to $275,000.

The Senate measure could be amended to include a host of other prohibitions, including one aimed at barring violent programming from the airwaves between the hours of 6 a.m. and 10 p.m.

“We are not going to accept indecent, irresponsible material on the public airwaves anymore,” said Rep. Barton. “If performers or broadcasters choose to play with regulators by behaving obscenely during a public broadcast, we can see that they pay for their conduct.”

The House legislation, which was quickly opposed by the National Association of Broadcasters, includes provisions that would allow the Federal Communications Commission to fine networks, and not just the affiliated station licensee, for network-originated indecencies and make clear that off-color programming could jeopardize a broadcaster’s license.

But the measure applies only to broadcasters. Cable and satellite are exempt from the indecency regulations, and that’s a problem for Rep. Barton.

During hearings late last month, Rep. Barton voiced concerns that a unilateral crackdown on broadcast indecency might simply “move the more objectionable material to satellite and cable.”

At the hearings, the concept of extending the crackdown to cable and satellite got enthusiastic reviews from several broadcast network TV executives at the witness table.

“It’s indispensable that everybody who provides the content be a participant,” said Alan Wurtzel, president, NBC research and media development.

Added Alex Wallau, president of the ABC Television Network: “To the parent or child surfing with a remote control in one of the 84 percent of American homes that receive pay television, the distinction between broadcast and basic cable or satellite channels simply no longer exists. Indeed, it seems that some of the programming that people have in mind when they complain about objectionable programming on television is actually on cable, not broadcast.

“Not only does this call into question the effectiveness of the indecency rules, it also raises troubling issues of fairness that would only be exacerbated by any efforts to impose even more stringent restrictions on broadcasters alone.”

Cable’s programming has not been regulated for indecency, partly on the argument that it is a subscription medium that consumers invite into their homes. That position has generally been upheld by the federal courts, which have given cable more First Amendment protection than they have given broadcasters.

Broadcasting, on the other hand, has traditionally been regulated for programming content because the Federal Communications Commission licenses broadcasters to use the public spectrum to deliver their shows to consumers’ homes.

Bud Paxson, chairman and CEO of Paxson Communications, argued at the hearings that cable and satellite should be subject to the same regulations that broadcasters are because they also send certain signals over the public airwaves using microwave frequencies licensed by the FCC-an argument he said is being formalized for the broadcast industry by a law firm.

“Because cable and satellite use the same airwaves, they should have the same responsibilities,” Mr. Paxson said.

Mr. Paxson testified that cable and satellite providers carried 675 hours of “pornography” in Washington on Feb. 24 alone.

“No one sitting in this room can tell me it is in the public interest for cable and satellite providers to use the public’s spectrum and public right-of-ways to pipe indecent and obscene programming into America’s living rooms at all hours of the day without any constraints or limitations,” Mr. Paxson said. “But that is what is happening, day after day, in every city.”

In the interest of giving cable subscribers more power to determine the kind of television shows allowed into their homes, House Majority Leader Tom DeLay, R-Texas, last week appeared to go one step further than Rep. Barton in announcing his support for an effort to encourage cable to offer programming a al carte-giving consumers the right to pick and choose which cable networks they want to watch and pay for.

“I should have a choice as to what comes into my house,” Rep. DeLay said.

In a speech to an NAB-sponsored seminar for state broadcast leaders, Rep. DeLay said it is particularly important that the entire TV industry move aggressively to clean up its programming act.

“If not, the government will do so for you,” Rep. DeLay said.

Brian Dietz, an NCTA spokesman, said the cable industry opposes a la carte programming selection for consumers on grounds that it might reduce the availability and diversity of cable programming and undermine the industry’s economic model. “The end result may be that many cable consumers would end up paying higher prices to receive the same or fewer channels than they get today,” Mr. Dietz said.

Under existing indecency law, continuing violations are subject to a maximum fine of $300,000. But under the legislation approved by the House committee last week, each indecent incident would be subject to the $500,000 levy, with no cap for a continuing series of violations.

Still another key provision in the legislation urges broadcasters to adopt a “family-viewing policy” for the industry.

The sole dissenting vote on the committee came from Rep. Janice Schakowsky, D-Ill., who failed in an effort to scale back the legislation’s penalties for on-air personalities. “I don’t trust this administration to make those decisions about what is indecent for me and my constituents,” she said in an interview.

In a statement, NAB urged lawmakers to focus instead on voluntary industry self-regulation. “NAB does not support the bill as written, but we hear the call of legislators and are committed to taking voluntary action to address this issue,” said Eddie Fritts, NAB president and CEO.

Despite Mr. Paxson’s arguments, NCTA’s Mr. Dietz said that the Supreme Court in its U.S. vs. Playboy case in 2000 held that the fact that cable operators have the ability to block programming that a particular subscriber finds objectionable while broadcasters don’t justifies different regulatory regimes for the two mediums.

“The cable industry has long been committed to working with organizations like the National PTA to increase awareness about media literacy and help parents make responsible viewing choices,” Mr. Dietz said.