House Votes 391-22 To Balloon Broadcast Fines
Indecency Legislation Moves Forward
by Jonathan Yarowsky
NATO Washington Counsel
In last month’s issue of In
Focus, we outlined for
NATO members how the on-air actions of a few high-profile
artists have drawn the scrutiny – and ire – of
government officials and the public at large. In this column,
we want to update you on the swift forward movement of
legislation and government agencies in response to what
is termed “indecent” on-air broadcasts.
Even before the Feb. 1 Super Bowl, Rep.
Fred Upton (R-Mich.), chairman of the House Energy and
Commerce Subcommittee
on Telecommunications and the Internet, had introduced
the Broadcast Indecency Enforcement Act of 2004 (H.R. 3717),
a bill that would “increase the penalties for violations
by television and radio broadcasters of the prohibitions
against transmission of obscene, indecent, and profane
language” to $275,000 per FCC indecency violation.
This would represent a 10-fold increase over the current
penalty structure. The Super Bowl only hastened the legislative
deliberation of a bill that proved to have widespread,
bipartisan support. By the time the full House Energy and
Commerce committee reported the bill to the House of Representatives
for consideration on March 9, the penalties were raised
even further to a ceiling of $500,000 per violation. The
bill would also expand the relevant factors to be considered
by the FCC in assessing penalties. The bill would also
provide authority to the FCC to fine “non-licensees” – including
performers – and not just the networks and affiliates
that aired the programming. Finally, the bill institutes
a “three strikes, you’re out” provision,
mandating the FCC to begin a license revocation process
after an outlet’s third violation. The bill passed
the full House of Representatives on March 11 by an overwhelming
majority vote of 391-22.
Two days earlier, on March 9, companion
legislation – S.
2056 – was unanimously reported by the Senate Commerce
Committee, and is currently on the calendar for consideration
by the full Senate. In committee mark-up, two amendments
of particular interest to theatre owners were offered.
The first was an amendment sponsored by Sen. John Breaux
(D-La.) that would expand the scope of FCC enforcement
authority beyond network over-the-air programming to cable
and satellite programming. This would mean, among other
things, that the penalty scheme for indecent programming
by broadcasters would be applicable to cable and satellite
operators as well. After lively debate, the amendment was
defeated by an 11-12 vote. Most observers fully expect
the same type of amendment to be offered on the Senate
floor when the legislation is considered.
The second amendment was offered by committee
ranking member Ernest “Fritz” Hollings (D-S.C.),
which would provide the FCC authority to regulate TV violence.
The
amendment was accepted on a voice vote.
Independent of the legislative process,
the FCC has become increasingly more active in enforcing
the indecency code.
In one such recent action, the FCC has recommended the
maximum $27,500 fine for each of nine violations by certain
subsidiaries of Clear Channel Communications. The current
environment has also led to some companies, like Clear
Channel, to remove certain programming deemed offensive
from certain markets.
Obviously, concern over indecent programming
now transcends a single isolated incident or remark. Just
as in the area
of media violence, policymakers and enforcement agencies
will remain vigilant. NATO members should do no less in
maintaining their strong enforcement of the ratings code
that has served communities and families so well all across
this nation. 
