HOUSE COMMERCE COMMITTEE RAISES ‘INDECENCY’ FINES TO $500,000
The House Commerce Committee voted overwhelmingly Wed. to raise FCC fines for “indecent” broadcasts to a level even higher than previously proposed. HR-3717, which was completely rewritten, gives the FCC authority to levy fines up to $500,000 for each violation, vs. the $275,000 previously proposed. The rewritten bill, called the Broadcast Decency Enforcement Act of 2004, will require the FCC to hold a license revocation hearing for a 3rd offense and create a 180-day time limit (or so-called shot clock) for the FCC to determine whether broadcasters have violated the indecency statutes.
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“We are not going to accept indecent, irresponsible material on the public airwaves anymore,” said House Commerce Committee Chmn. Barton (R-Tex.) during his first hearing as head of the Committee. “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 amended bill passed 49-1 and incorporated many changes legislators had previously proposed. House Telecom Subcommittee Chmn. Upton (R-Mich.) said the bill could be on the House floor next week. NAB said it opposed the bill because the broadcast industry was moving voluntarily toward curbing indecency, including with an upcoming “Summit on Responsible Programming.” “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,” NAB Pres. Edward Fritts said. The Senate Commerce Committee will consider S-2056, from Sen. Brownback (R-Kan.) March 9. Brownback’s bill is based on the original HR-3717.
The bill lists factors for the FCC to consider including: (1) Whether material was live or recorded, scripted or unscripted. (2) Whether there was a reasonable opportunity to review recorded or scripted programming. (3) Whether there was a time delay mechanism for live programming. (4) The size of the audience. (5) Whether the content is considered children’s programming.
The bill also says the FCC should consider whether the accused is a company or an individual. If it’s a company its size and the market it serves should also be taken into account, the bill said. Affiliates wouldn’t be liable for network content if certain criteria unless they had a reasonable chance to preview the programming, or a reasonable basis to believe the programming would contain indecent material. Upton said Reps. Bilirakis (R-Fla.) and Green (D- Tex.) had pushed for the language to protect affiliates.
The FCC would also impose larger fines for non-license holders under the bill -- the provision that likely prompted House Commerce Consumer Protection Subcommittee ranking Democrat Schakowsky (Ill.) to cast the only negative vote. The FCC could levy fines against on-air talent that “willfully or intentionally” offered indecent comments or material. Also, fines could be applied to networks under this provision, though Upton said most enforcement against networks would still likely come through owned & operated stations.
Schakowsky proposed removing the provision, saying it could “harm the First Amendment” and would “undermine creativity.” House Commerce Consumer Protection Subcommittee Chmn. Stearns said the amendment would “allow for individuals to be held accountable” for their statements. Schakowsky’s amendment was defeated, but not before House Telecom Subcommittee ranking Democrat Markey (Mass.) had said he was uncomfortable with the provision and doubted it would was constitutional. He said the bill had a “separability clause” that would allow courts to strike down the provision without scuttling the rest of the law.
House Commerce Committee ranking Democrat Dingell (Mich.) pushed for language that requires the FCC to report annually to Congress the number of: (1) Complaints received by the FCC during the year and the number of programs that generated the complaints. (2) Complaints that have been dismissed or denied. (3) Complaints that were pending at the time of the year-end report. (4) Notices regarding indecency that were issued and details of those notices. (5) Forfeiture orders issued and details of those orders.
The bill includes a provision to open a license revocation hearing after 3 forfeiture penalties are assessed by the FCC. Also, the FCC should consider indecency violations when reviewing license renewals, it said. The bill also includes a “sense of the Congress” that broadcasters should institute an industry-wide family viewing policy.
Rep. Stupak (D-Mich.) proposed, then withdrew, an amendment that would have re-established a 35% broadcast ownership cap and cross-ownership restrictions similar to those thrown out by the FCC in June. In a humorous gesture, Markey introduced an amendment that would deem the new FCC cross-ownership rules to be “indecent” and require Commissioners that support the rule to watch the movie Citizen Kane over and over again “until they flinch at the word ‘Rosebud.'” Rep. Cox (R-Cal.) said broadcast spectrum should be auctioned since it’s used for commercial purposes, which he said would take Congress out of the game of regulating broadcast content.
Clear Channel and Viacom/Infinity were targeted by a few members for being responsible for “80% of indecency fines.” A Clear Channel official said the company supported the bill, but wanted changes to give broadcasters due process when charged with an indecency violation. Meanwhile, Brownback wrote to Viacom CEO Mel Karmazin asking why the zero- tolerance policy on indecency wasn’t enforced for Howard Stern’s Feb. 24 broadcast that caused Clear Channel to drop Stern from the 6 stations it owns that carried Stern’s show.