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Policy

House Wants Big Smut Fines

2/20/2005 7:00 PM Eastern

Washington— Get out your checkbooks, broadcasters. Smut just got more expensive.

Broadcasters and entertainers that violate federal indecency laws can be fined up to $500,000 for each offense under legislation that gained overwhelming approval in the House last Wednesday.

The bill (H.R. 310), which passed 389-38, is a bipartisan effort to crack down on broadcasters after singer Janet Jackson exposed her breast during the 2004 Super Bowl halftime show produced by MTV: Music Television which aired on CBS, both owned by Viacom Inc.

20 CBS STATIONS HIT

The Federal Communications Commission, which enforces the broadcast-indecency laws, received about 500,000 complaints and fined Viacom a record $550,000, covering 20 CBS stations. Viacom is fighting the penalty.

The bill, sponsored by Reps. Fred Upton (R-Mich.) and Edward Markey (D-Mass.), eliminated the current $32,500 cap on fines and upped the maximum to $500,000.

Shock jocks and others who appear on radio and TV can be hit with the same large fines for willfully violating the rules.

The action shifts to the Senate, where pending legislation (S. 193) sponsored by Sen. Sam Brownback (R-Kan.) includes a per-violation maximum of $325,000 under a $3 million cap “for any single act.”

Under federal law, it is illegal to broadcast indecent programming (generally meaning patently offensive sex, nudity and foul language) from 6 a.m. to 10 p.m., when children are expected to be in the audience. The law does not cover cable-TV, satellite-TV or satellite-radio services.

Lawmakers who voiced support for the bill claimed the current $32,500 maximum was too small to be a meaningful deterrent. In fact, the Justice Department fails to collect small fines because legal costs exceed the amount targeted for collection.

“It’s a mere drop in the bucket, a slap on the wrist,” said Rep. Joe Barton (R-Texas), the House Energy and Commerce Committee chairman.

CABLE, DBS ARE OUT

Rep. John Shimkus (R-Ill.) said that although he supported the bill, he lamented that cable and satellite providers were not included, even though 85% of TV homes subscribe to those services.

“I think that creates an unfair playing field,” he added.

Shimkus also complained that because pay TV is exempt, the public might get the wrong idea that the House bill would completely sanitize television of smut.

“I don’t want to lull the public into a false sense of security because this is addressing one venue, the public airwaves,” he said.

Opponents argued that the fight against indecency was amounting to government censorship, pointing to the refusal of 66 ABC affiliates to broadcast the World War II film Saving Private Ryan, fearing that repeated use of the “f-word” would trigger FCC fines.

“This is a bad bill. It’s a dangerous bill,” said Rep. Bernard Sanders (I-Vt.). “The specter of censorship is growing in America today, and we have got to stand firmly in opposition to it. Are you happy about the fact that affiliates are afraid of showing Saving Private Ryan?”

Rep. Jerrold Nadler (D-N.Y.) stressed that if people didn’t like what they see on television, they can use a remote control to find more suitable programming.

“I recommend that everyone buy one and learn how to use it,” he added.

180 DAYS TO ACT

The bill requires the FCC to act on indecency complaints within 180 days and hold a license revocation hearing for any TV or radio licensee that has been fined three times within eight years.

“It’s not an automatic revocation, but the FCC would have to hold the hearing to consider revocation,” Upton said.

Shock jocks, entertainers and others that willfully and knowingly violate the indecency rules are eligible for fines.

Upton said that under that legal standard, a baseball player hit by a pitch would not be fined if he reacted with an expletive that was broadcast. An artist who cut a record with explicit lyrics wouldn’t be fined if a radio station played the track without the artist’s knowledge, he added.

TV stations — especially independently owned network affiliates — are protected if they do not have “a reasonable basis to believe” that programming would be indecent. Some TV stations have complained that the networks don’t permit them to review recorded primetime programming for indecency and that they can’t guard against a surprise act of indecency that occurs in a live broadcast.

Details of the legislation, called the Broadcast Decency Enforcement Act, need to be worked out by the FCC because provisions are vague and fail to include standards. For example, the bill does not provide the FCC with guidelines for conducting a revocation hearing.

Appearing on C-SPAN’s Washington Journal last Wednesday, before the House vote, Upton himself couldn’t clearly explain how his bill might have applied to Vice President Dick Cheney for telling Sen. Patrick Leahy (D-Vt.) to “f-word himself” or to broadcasters for reporting the remark.

“I don’t know how the FCC would rule on that,” Upton said. “We give the FCC the discretion to do that. The questions is, is it newsworthy? Maybe we should put a five-second delay on some of the things some of us say.”

WAXMAN: TOO VAGUE

Rep. Henry Waxman (D-Calif.) blasted the bill as being so vague that TV and radio stations will only air programming suitable for a 5-year-old “whose parents are prudes.”

“Let us trust parents to know better than government officials what material they want their children to be exposed to,” Waxman said.

Content on TV and radio has gotten so out of control, Upton said, that Congress had to put pressure on the industry’s bad actors.

The bill, he added, was designed to crack down on raunch, not on artistic expression.

“Parents should not have to think twice about the content on public airwaves,” said Upton. “If you want to see what the FCC has fined, I’ve got the transcripts here and it’s awful. It’s vulgar. It has no place on the public airwaves.”

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