A controversial incident during the Super Bowl halftime show in January called into question the role of the Federal Communications Commission (FCC) in regulating indecency on broadcast television, and spurred action on the Broadcast Decency Enforcement Act in the House and Senate.
House Action
On March 11, the House approved, 391-22, its version of the Broadcast Decency Enforcement Act (H.R. 3717). The House Energy and Commerce Committee approved the measure on March 3 (see The Source, 3/5/04).
Sponsored by Rep. Fred Upton (R-MI), the bill would raise the FCC fine for any incident of indecency from $27,500 to $500,000. The measure also would increase fines for individual performers from $11,000 to $500,000, with no cap for a continuing violation.
In an attempt to protect smaller network affiliates, H.R. 3717 would require the FCC to determine who created the programming and how much control the broadcaster had when the violation occurred. The bill also would require the FCC to take into account the violator’s ability to pay fines, based on market size and location and whether the violator is a company or an individual. Broadcasters with a series of infractions may not be allowed to renew their licenses.
H.R. 3717 would require the FCC to report annually on the number of complaints received and what actions were taken. The measure would institute a 180-day period for the FCC to make enforcement decisions.
Thanking the House Energy and Commerce Committee chair and ranking member for their quick action on the bill, Rep. Heather Wilson (R-NM) stated, “The Federal Communications Commission plays a very important role in protecting Americans, and particularly children, from indecent programming. The FCC has the statutory authority to enforce the laws that are on the books, but their enforcement has been inadequate and the tools that they have had at their disposal have also been insufficient. This bill today will help to change that situation.”
Rep. Karen McCarthy (D-MO) expressed her concern with a provision in the bill that would increase fines for individual performers. “Clearly the FCC should be able to hold individuals responsible for breaching the public trust by violating decency standards in the same way it holds broadcasting entities accountable for what they put on the airwaves,” she stated. “Nonetheless, opening the door to potentially ruinous fines of up to a half a million dollars for individuals, including artists, raises the specter of state sponsored censorship. Will the federal government decide to silence certain individuals in the future for political reasons? Under this bill, it has the authority to do just that.”
During consideration of the bill, the House approved, by voice vote, an amendment by Rep. Pete Sessions (R-TX) that would require the General Accounting Office (GAO) to study the number of indecency complaints received by the FCC, the mechanisms established to receive and respond to complaints, any actions that are taken by the FCC, and the time needed to issue a final decision. The amendment also would require the GAO to examine whether those who file complaints are adequately informed about the FCC’s decisions.
Prior to final approval, the House approved, by voice vote, a substitute amendment by Rep. Upton that would ensure that a broadcaster was given due process before the FCC revoked its license. Under the substitute, a broadcaster would be able to exhaust all appeals of any FCC fines before the FCC could use those violations against the company in determining whether to revoke the license.
Senate Committee Action
On March 9, the Senate Commerce, Science, and Transportation Committee approved, 23-0, its version of the Broadcast Decency Enforcement Act (S. 2056). Sen. Sam Brownback (R-KS) sponsored the bill.
During consideration of the bill, the committee adopted the following amendments by voice vote:
The committee adopted, 11-10, an amendment by Sen. Stevens that would require the FCC to hold a license-revocation hearing for a broadcaster that had three or more violations of indecency.
The committee also adopted, by voice vote, an amendment by Sen. Ernest Hollings (D-SC) that would require the FCC to report on the effectiveness of measures to require broadcasters to rate and encode programming for V-Chip blocking; direct the FCC to prohibit broadcasts of violent programming during children’s viewing hours if the FCC finds that voluntary electronic programming blocking is ineffective at any time; direct the FCC to create new regulations for violent programs; and direct the Federal Trade Commission to conduct a study on the marketing of violent content to children by the motion picture, music, computer, and video game industries.
The committee adopted, 13-10, an amendment by Sen. Byron Dorgan (D-ND) that would invalidate the 2003 FCC media ownership rule, which increased the national audience reach limitation for a company from 35 percent to 45 percent. The rule would remain invalid until the GAO could conduct a study on the relationship between the consolidation of media ownership and indecency violations.
The committee rejected, 11-12, an amendment by Sen. John Breaux (D-LA) that would have required the FCC to enforce decency standards for basic and expanded basic tiers of cable and satellite providers. The requirement would have ended when the FCC showed that 85 percent of American households utilize a V-Chip or other program-blocking technology.
Prior to final approval, the committee adopted, by voice vote, a manager’s amendment by Chair John McCain (R-AZ) that would make each profane or indecent utterance or image subject to a separate $275,000 fine and cap fines at $3 million for a single 24-hour period; and would institute a 270-day period for the FCC to make enforcement decisions.
