Indecency Hot Potato on the Hill

Dec 13, 2004  •  Post A Comment

Congress officially pulled the plug on its 108th session last week without delivering on repeated threats to dramatically raise the stakes for indecent broadcasts. But industry watchdogs are vowing to renew their efforts to hammer off-color programming when lawmakers return for their new session next year.

“It’s definitely not over,” said Kelly Walmsley, a spokeswoman for the Parents Television Council, the group that has been kicking up much of the fuss about indecent broadcasting.

A spokesman for Sen. Sam Brownback, R-Kan., who has been leading the Senate charge against indecency this year, said the lawmaker planned to reintroduce legislation that would raise the cap on fines for off-color broadcasts from $32,500 to $500,000 when Congress returns for its 109th session Jan. 3.

“There is still plenty of momentum,” said Ms. Walmsley, contending that legislation failed this year only because some senators “played politics” with the measure, using their power to secretly block votes behind the scenes to negotiate for the passage of unrelated legislation they backed.

“It’s safe to assume there will be efforts to resurrect this indecency legislation,” a broadcast industry source confirmed.

Congress’ legislative failure came as an anticlimax to a year that was marked by a firestorm of criticism in Washington of television programming, sparked by Janet Jackson’s exposure of her breast on this year’s Super Bowl halftime show.

In the aftermath of CBS’s Super Bowl coverage, which generated more than 500,000 complaints to the Federal Communications Commission, the House of Representatives voted 391-22 in March to approve legislation that would have raised the cap on fines to $500,000 and made clear that off-color broadcasts could jeopardize a broadcaster’s license.

The Senate Commerce Committee approved crackdown legislation of its own shortly thereafter. But the Senate’s original version of the bill foundered, largely because it included a controversial provision that would have barred the FCC from relaxing its media ownership rules.

While Sen. Brownback subsequently tried to fix the Senate bill with a compromise measure that didn’t include the media ownership provision, a vote on the compromise bill was blocked by confidential holds set by Democrats during Congress’ post-election lame-duck session, sources said.

Despite the legislation’s death for the year, the furor over the Janet Jackson episode also roused the FCC into action, spurring a series of confusing agency decisions that critics allege have so muddied the indecency waters that nobody can know for sure what might cross the new line.

In one of its more confounding bureaucratic twists, the FCC, in its March decision involving entertainer Bono’s utterance at the Golden Globes, ruled that that use of the F-word and similar expressions ran afoul of agency prohibitions, no matter what context in which the words are used.

In a previous decision in the same case, the FCC staff held that Bono’s use of the expression “F***ing brilliant” did not violate indecency prohibitions because agency precedent had long held that context mattered. Bono, according to the FCC staff, had used the expression adjectivally and not in reference to sexual activity.

The FCC also broke new ground in fining each of the 169 Fox affiliates that carried an April 7, 2003, episode of the reality show “Married by America” $7,000 apiece for alleged indecency-for a total of $1.183 million. Previous FCC decisions limited indecency fines for TV network programming to the network and its owned-and-operated stations.

With those fresh precedents clearly in mind, 66 ABC affiliates reaching 36 percent of the nation’s TV households refused to carry the ABC TV network’s Veterans Day broadcast of “Saving Private Ryan” Nov. 11. Though the affiliates had carried the Academy Award-winning film uncut twice previously-without any significant repercussions-many were concerned that the movie’s frequent use of the F-word and other profanities could expose them to indecency punishment under the FCC’s new thinking.

The indecency issue became so highly charged that the FCC last month said an ABC promo for “Desperate Housewives” that appeared on the network’s “Monday Night Football” generated more than 50,000 complaints, sparking another agency indecency review.

The promo showed “Desperate Housewives” star Nicolette Sheridan dropping a towel and leaping into the arms of Philadelphia Eagles wide receiver Terrell Owens in a locker room. Though the broadcast showed Ms. Sheridan naked only from behind, the promo was widely condemned, in part because of its unexpected context.

With the indecency waters roiling, some broadcasters decided to sign consent decrees with the FCC to protect their assets.

In June, Clear Channel Communications announced that it agreed to pay $1.75 million to settle all of the indecency complaints pending against its stations. Clear Channel had previously dropped Infinity Broadcasting shock jock Howard Stern-the target of many of the complaints-from its radio stations.

Last month Infinity owner Viacom announced that it agreed to pay $3.5 million to settle indecency complaints pending against its radio and TV stations. Some of the Viacom complaints also targeted Mr. Stern, who has announced plans to move his controversial show to Sirius Satellite Radio. The FCC does not regulate satellite broadcasting for indecency.

Both Viacom and Fox are fighting back, though.

In its consent decree with the FCC, Viacom made clear that the settlement does not include the $550,000 fine the agency ultimately handed down to Viacom’s CBS for Janet Jackson’s breast exposure. CBS has challenged the FCC’s decision as a violation of the broadcaster’s First Amendment rights.

Earlier this month Fox and the vast majority of the network’s affiliates also announced they are challenging the agency’s $1.183 million fine for “Married by America.”

“The commission’s indecency regulations no longer can withstand constitutional scrutiny,” Fox said.

In the immediate wake of Ms. Jackson’s performance, the FCC asked the National Association of Broadcasters to consider adopting an industry code of conduct to govern responsible programming.

But NAB task force members told TelevisionWeek that the group, which has been meeting behind the scenes, is leaning toward a recommendation that the industry fashion a voluntary set of “best practices” principles instead.

Some on the task force have argued that an official code-with its threat of industry sanctions for violators-would raise serious First Amendment concerns. A set of best practices principles would only suggest steps that broadcasters could take to address programming concerns.