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Indecency Rules Speeding Ahead

Mar 15, 2004  •  Post A Comment

Leading regulatory attorneys have the following advice about indecency for broadcast clients: If in doubt, leave it out.
“If you question whether it’s appropriate, don’t do it” is the gist of the pitch, according to one attorney, who spoke on condition of anonymity. “Most broadcasters don’t want to be a test case,” said another.
It’s hard to blame broadcasters for following advice of counsel to keep their heads down.
Since Janet Jackson bared her breast on CBS’s broadcast of the Super Bowl halftime program, legislation to crack down on off-color programming has been roaring through Congress with the momentum of a locomotive.
Just last week, the House of Representatives voted 391-22 to approve legislation that would hike the cap on fines for an indecent broadcast from $27,500 to $500,000-and makes clear that performers are also subject to the penalties.
The House vote came on the heels of a 23-0 vote by the Senate Commerce Committee to approve a measure that would clear the way for the Federal Communications Commission to double the $500,000 levy in particularly egregious cases.
Both the House and Senate measures make clear that indecency violations put a broadcaster’s license in jeopardy. A spokesperson said Senate Majority Leader Bill Frist, R-Tenn., wants to bring the bill up for a vote by the full Senate, though he’s not sure when.
“It doesn’t have a chilling effect, it has a freezing effect,” said Rep. Gary Ackerman, D-N.Y., one of the few congressmen who spoke out against the legislation on the House floor last week. “What is at stake here is free speech,” Mr. Ackerman added.
But the congressman’s appeal was lost in the roar of the majority.
“It’s time that we reclaim America’s airwaves for decency,” said Rep. Joe Barton, R-Texas, chairman of the House Energy and Commerce Committee.
“The American public had expressed their outrage, and we heard them loud and clear,” added Rep. Fred Upton, R-Mich., the original sponsor of the House bill.
At least according to media industry attorneys, the legislative furor appears to have undermined a tradition of leniency on programming content issues that’s been developing at the Federal Communications Commission at least since the late 1980s.
“I’ve been doing this for over 30 years, and I’ve never seen anything like this,” said one communications attorney. “Talk about an overreaction.”
According to veteran industry observers, the furor to regulate appears to be fueled by a variety of factors, including nagging concerns about media consolidation, election-year politics and a few stunts by radio shock jocks.
The FCC staff’s ruling that entertainer Bono’s use of the F-word on NBC’s broadcast of the Golden Globes award show last year had not run afoul of the agency’s indecency prohibitions gave major public relations ammunition to agency critics.
Janet Jackson’s Super Bowl performance fueled a fire that was already burning.
“It’s the perfect storm,” said one industry attorney. “Everybody’s terrified.”
Along with the obvious threats posed by the legislation, some industry attorneys also fear that the FCC will turn back the clock on its regulatory approach to indecency to the late 1970s. That’s when the U.S. Supreme Court approved an agency crackdown over a George Carlin radio monologue on the seven “filthy words” that supposedly couldn’t be said on the public airwaves.
Seven Dirty Words
According to an FCC source, the agency abandoned the seven dirty words concept in the late 1980s, holding that the context of a word’s use or an action must be taken into consideration.
Indeed, in the Bono case-which FCC Chairman Michael Powell has said he wants to overturn-the agency staff held that the F-word wasn’t indecent because it had been used adjectivally and not in reference to sexual or excretory behavior.
Industry insiders fear that Mr. Powell will re-establish the principle that certain words are off-limits, no matter how they are used.
“Most attorneys are advising their clients to stay away from the seven dirty words or close equivalents,” a media industry attorney said.
Before last week’s vote the House legislation was amended to include a provision that would require the General Accounting Office to investigate how thoroughly the FCC prosecutes indecency under its new powers.
The bill approved by the Senate Commerce Committee also included an amendment that would block the FCC’s media ownership deregulation from going into effect for up to a year, while GAO studies whether media ownership consolidation has spurred off-color programming. The media ownership provision would roll back the regulations to where they stood June 1 last year-the day before the FCC’s GOP majority voted to relax caps that barred broadcasters from owning daily newspapers in their markets and limited how many stations a company could own in a particular community or nationwide.
Under a series of amendments approved, the Senate bill would subject the first indecency broadcast on a station to a fine up to $275,000, with the second punishable with a $375,000 levy. A third violation could result in a fine up to $500,000. All the fines could be doubled, if the FCC determines that “aggravating factors are present.”
In addition, the FCC would be required to launch proceedings to revoke the license of any broadcaster who violates the indecency prohibitions three times within the license period. Still another amendment clears the way for broadcasters to adopt a code establishing a two-hour carve-out for “family viewing” in the evenings.