SENATE APPROVES DECENCY, OWNERSHIP AMENDMENTS

Perhaps the most controversial component of the amendment was Sen. Dorgan’s (D-N.D.) amendment to limit the FCC’s media ownership rules. Dorgan’s amendment, which was supported by Sen. Snowe (R-Me.), would stay all of the FCC’s cross-ownership rules. These rules were relaxed by the June 2003 FCC ruling, but are now under review by the 3rd U.S. Appeals Court, Philadelphia. However, the amendment wouldn’t affect the 39% broadcast ownership cap, which was agreed to as part of last year’s omnibus appropriations bill.

Dorgan on Tues. acknowledged the House leadership’s opposition to the measure, but said it was important to keep the issue alive. “I don’t know what will happen in conference,” Dorgan told us. But he said it was important to take “every opportunity we have to push” for overturning the FCC’s ownership rules. Dorgan has been one of the most vocal opponents of the FCC’s rules, often noting in his stump speech on the topic that the provisions would allow one company to own “3 TV stations, 8 radio stations, the cable company and the dominant newspaper” in a market. “What the FCC did was wrong,” he told us Tues.

The amendment raised indecency fines, but there’s now some differences between the Senate and House version of the bill. The House version, which passed 391-22, would raise fines up to $500,000 for each utterance, if it was the license holder was a repeat offender. But Brownback’s amendment merely raised the maximum fine from the current level of $27,500 to $275,000, with a maximum of $3 million for one indecent broadcast.

Brownback said he wasn’t certain how the differences might be addressed in conference, but said “under any scenario, we'll see a fine increase.” HR-3717 included other provisions not addressed in Brownback’s amendment, including a few he said he would like to see passed. The amendment doesn’t include the “three strikes” provision, which would initiate a license review should a broadcaster be fined 3 times. Also, it doesn’t include a provision in House legislation that would allow fining of on-air talent. Brownback said he “would like to give the FCC broader authority” to issue fines for indecency and “give the FCC a chance to get the true perpetrator.” Brownback said entertainment industry officials often “point the finger at the other guy” when blaming segments of the industry for declining decency standards.

The package of amendments also included one from Senate Commerce Committee ranking Democrat Hollings (S.C.) that could establish FCC authority to issue fines for violent content in much the same manner it does for indecent broadcasts. The amendment, similar to one approved in S- 2052, would require the FCC to study the use of the V-chip. If the FCC determines the V-chip to be ineffective (which many have said will certainly happen), the FCC must impose the violence “safe harbor” for family time broadcasts. Brownback on Tues. echoed concerns expressed by others that there are “significant constitutional questions” posed by the amendment. Hollings has been pushing such a change at the FCC for 10 years and has 4 times gotten the Commerce Committee to approve legislation.

As structured, the 99-1 vote encompassed a series of amendments, including one from Senate Communications Subcommittee Chmn. Burns (R-Mont.) that would have required the FCC to take into account the size of a broadcaster when levying a fine. Sources said once the bill reaches the House-Senate conference, any amendment could be removed without jeopardizing the other amendments.

NAB opposed the amendment, NAB Pres. Edward Fritts said. “We continue to believe that voluntary industry initiatives that have been taken by a number of broadcasters thus far are far preferable to government regulation when dealing with programming issues,” Fritts said. “We also believe that most Americans would acknowledge that broadcast programming is considerably less explicit in terms of violence and sexual content than that which is routinely found on cable and satellite channels.”

House leadership has vigorously opposed any change in the FCC’s media ownership rules. While many House members supported rolling back the FCC’s broadcast ownership limit from 45% to 35%, and added the provision to House appropriations language, but House leadership and White House pressure resulted in the 39% compromise, which would prevent News Corp. and Viacom from having to sell some stations, since these companies would have been over the 35% cap. An effort by Dorgan to completely reverse the rules, which passed with 55 votes in the Senate, has stalled in the House, where leadership won’t take up the bill and efforts to force it to the floor are at least 10 votes short.

The Dorgan amendment also makes congressional findings regarding media consolidation. The amendment said Congress found since 1996 there has been “significant consolidation in the media industry.” The amendment cites examples, including the growth of Clear Channel to 1,200 radio stations, the rise in audience reach of Viacom/CBS (38.9%), News Corp./Fox (37.7%) and GE/NBC (33/6%), and mergers such as the News Corp. acquisition of DirecTV and the merger of AOL and Time Warner. But the amendment also ties increasing consolidation with broadcast indecency, noting that Clear Channel accounts for 2/3 of the fines proposed by the FCC, and that indecency complaints have risen from 111 in 2000 to 240,350 in 2003. However, the amendment didn’t include a General Accounting Office (GAO) study on the affects of consolidation on indecency, which was part of Dorgan’s original amendment to S-2400. That amendment would have only stayed the FCC rules until that GAO report was completed. The amendment passed Tues. would permanently stay the rules.

Brownback said he was sympathetic with efforts to bring decency enforcement to cable and DBS broadcasters. He said he believed Sen. Breaux (D-La.) was the only senator to vote against the bill because it didn’t address cable programming. Breaux unsuccessfully tried to attach an amendment to S-2052 that would have targeted cable. And while Brownback acknowledged that legal rulings exempted cable and DBS broadcasters from FCC decency regulation, he said it could be time for the court to reconsider the rulings. He noted that when such legal rulings were issued, only 20% of Americans had cable, where now 80% subscribe.