Broadcasts Of Outrageous Acts Garner Federal
Scrutiny
When Indecency Attacks!!
by Jonathan Yarowsky
NATO Washington Counsel
Super Bowl XXXVIII’s Feb. 1 halftime show did more
than raise the eyebrows of close to a billion viewers;
it fueled an already contentious national debate about
what is appropriate content for broadcast television and
radio – and whether those standards should also apply
to paid-for programming, such as that transmitted via cable.
But the Super Bowl marked only the latest in a series of
controversial programming events that have drawn the attention – and
ire – of government officials and the viewing public:
• In October, the Federal Communica-tions Commission
(FCC) ruled that U2 lead singer Bono’s use of a 4-letter
expletive during his acceptance speech in a live NBC telecast
of the 2003 Golden Globes was not indecent, given the context
of the remarks. A firestorm of public and lawmaker criticism
followed, with bills and resolutions introduced in Congress
urging stronger FCC enforcement. In January, FCC chairman
Michael K. Powell asked his four fellow commissioners to
reverse the October 2003 ruling. If adopted by the full
FCC commission, Powell’s proposal would outlaw the
specific profanity expressed at the Golden Globes in almost
all instances, singling it out as the one word that would
almost guarantee an FCC fine if uttered in any context
between 6 a.m. and 10 p.m. on radio and broadcast television;
• In January, the FCC fined radio
giant Clear Channel Communications $755,000 for airing
indecent material during
one of its syndicated radio programs; and
• On the day of the Super Bowl, Los Angeles Lakers
basketball star Shaquille O’Neal used the same 4-letter
expletive Bono did, in a live, post-game interview with
Los Angeles CBS affiliate KCAL-TV. It resulted in a 1-game
NBA suspension for the Lakers’ center.
In the midst of the uproar surrounding
these occurrences, the media has begun to take an “anticipatory” approach
to certain future programming. For instance, CBS aired
the February broadcast of the Grammy awards with a 5-minute
delay to allow for quick edits. In the meantime, the federal
government is also moving on a number of fronts.
The FCC is the agency responsible for regulating
interstate and international communications by radio, television,
wire, satellite and cable in the 50 states, the District
of Columbia, and all U.S. possessions. All broadcast radio
and television stations operate under the watchful eye
of the FCC’s highly specific prescriptions. Federal
law specifically prohibits the airing of “indecent” or “obscene” programming.
Obscene programming, which is prohibited at all times,
is defined as programming that: 1) an “average” person,
applying contemporary community standards, would find as
appealing to “prurient interest”; 2) depicts
or describes, in a patently offensive way, sexual conduct
specifically defined by applicable law; and 3) taken as
a whole, lacks serious literary, artistic, political, or
scientific value. Indecent programming, which is restricted
to the hours of 10 p.m. to 6 a.m., is defined as material
that, in context, is “patently offensive,” as
measured by contemporary community standards for the broadcast
medium. With regard to the Super Bowl show, the FCC has
opened a wide-ranging investigation into the halftime show
and is already suggesting the possibility of fines that
may be levied against each network affiliate which aired
the show, together with fines for CBS, the NFL and the
performers themselves.
Congress has also moved forward to address
the issue of indecency. At least one piece of legislation,
H.R. 3717,
the Broadcast Decency Enforcement Act of 2004, sponsored
by Rep. Fred Upton (R-Mich.), would “increase the
penalties for violations by television and radio broadcasters
of the prohibitions against transmission of obscene, indecent,
and profane language.” The bill was introduced in
direct response to the Golden Globes incident. The furor
over the Super Bowl halftime show quickly accelerated legislative
consideration of the bill, with hearings and a House subcommittee
mark-up taking place in February. At the same time, the
Senate Commerce Committee scheduled hearings to probe how
best to protect children from “violent and indecent” programming.
If these congressional scenarios sound familiar,
they should: for the widespread popular outrage occurring
in the run-up
of a highly volatile election year seems to closely mirror
the environment and debate over protecting children from
violent entertainment that was sparked by a rash of 1999
school shootings, among them the tragedy in Columbine.
In a number of quarters the shootings were, in part, attributed
to the influence of persistent violent media – from
music to video games to movies – to which the violent
student perpetrators had access. The congressional debate
that followed focused the entertainment industry on efforts
to protect children from inappropriate violent material.
In response, the Federal Trade Commission (FTC) stepped
in, instituting a periodic review of the marketing of violent
entertainment products to children.
It is very clear that NATO members worked
diligently in 2003 to fulfill the promise our industry
made at the White
House in 1999 to ramp up ratings enforcement efforts. The
FTC’s latest report on industry marketing practices
(October 2003) indicates marked improvement in NATO members’ ratings
enforcement and public education efforts. We appreciate
how seriously you take the responsibility to do all you
can to ensure that the movie theatre continues to be a
safe and wholesome environment for the entire family to
enjoy. 
