Following a controversial incident during the Super Bowl’s halftime show, Congress focused much of its attention this week on reviewing the role of the Federal Communications Commission (FCC) in regulating indecency on broadcast television. On February 11, the FCC Chair and its Commissioners testified before the Senate Commerce, Science, and Transportation Committee and the House Energy and Commerce Subcommittee on Telecommunications and the Internet in separate hearings. A day later, the House subcommittee approved the Broadcast Decency Enforcement Act (H.R. 3717).
Senate Hearing
“By now, there isn’t a person in this room who is unfamiliar with CBS and NFL’s ‘fumble’ during the Super Bowl halftime show, which was viewed by an estimated 140 million Americans, including millions of young children,” stated Committee Chair John McCain (R-AZ). “What constitutes entertainment clearly lies in the eyes of the beholder,” he added, noting that last year the committee approved a bill (S. 1264) that “would only raise the fines ten-fold for broadcasters, but also direct the FCC to count each indecent ‘utterance’ individually, and encourage license revocation proceedings in certain circumstances.”
Expressing her shock at the halftime show, Sen. Barbara Boxer (D-CA) said, “As outrageous as it was, it doesn’t come close to what our kids see on the peer-to-peer networks,” referencing the proliferation of child pornography on the Internet.
Sen. Olympia Snowe (R-ME) also expressed her concern that children are exposed to inappropriate material, citing a study estimating “that the average child by the age of 18 has witnessed 40,000 murders and more than 200,000 acts of violence on TV.”
Urging the FCC to act, Sen. Bill Nelson (D-FL) said: “You all [FCC commissioners] have a responsibility to draw a line in the sand to stop the trend that we are on.”
Sen. Lindsey Graham (R-SC) testified before the committee, saying, “I think it’s time for us all to take a hard look at ourselves… At the end of the day, people make the product because people want to watch it.” He added, “This is not a new issue. It would be political malpractice not to bring a bill to the floor…We need to vote and we need to vote soon.”
FCC Chair Michael Powell told the committee that the FCC has received over 200,000 complaints regarding the Super Bowl incident alone. Calling the incident “a new low in prime time television,” he added that it was just one in “a growing list of deplorable incidents over the nation’s airwaves.” Additionally, “a quick flip around the dial during what was once the family hour, reveals coarse content, wholly inappropriate for a time when children can be expected to be watching.”
Mr. Powell said that the commission “boasts the most aggressive enforcement regime in decades, proposing nearly ten times the level of indecency fines than the previous Commission.” He said he also has “challenged broadcasters to re-institute a voluntary Code of Conduct and urged the broadcast and cable industries to work with the public to take other steps, such as educational and outreach campaigns and providing for a delay for live entertainment events.”
Chair Powell called upon Congress “to adopt legislation that will increase the statutory maximum of our forfeiture penalties at least ten-fold” and urged the television and radio industry to “clean up its own room.”
Commissioner Kathleen Abernathy discussed her efforts to educate parents. “Gone forever are the days when a parent could simply sit a child down in front of the TV and leave that child in the hands of the broadcast babysitter. Television viewing today requires that responsible parents be proactive in selecting and monitoring the material their children are permitted to watch.”
To that end, the FCC has created a website, “Parents’ Place,” which “explains the rating systems, including what the ratings mean and when and where the ratings are displayed and directs parents to web sites that identify age-appropriate programming. It also explains the V-chip and how it works,” she said.
Commissioner Kevin Martin said that the “FCC needs to be more responsive” and proposed four steps aimed at providing “parents with more tools to watch television as a family and to protect their children from violent and indecent programming:” 1) Aggressively enforce the law; 2) Affirm local broadcasters’ ability to reject inappropriate programming; 3) Urge broadcasters to reinstate the family hour; and 4) Address cable and satellite programming.
Although he was “appalled by the half-time show” and “any number of tasteless commercials that depicted sexual and bodily functions in a vile manner,” Commissioner Jonathan Adelstein stated that “there are limits to what the FCC can do,” adding, “We must balance strict enforcement of the indecency laws with the First Amendment. If we overstep, we risk losing the narrow constitutional authority we now have to enforce the rules.”
“It may take more than the FCC to turn this around,” stated Mr. Adelstein. “Broadcasters need to show more corporate responsibility. They must rise above commercial pressures, and recognize the broader social problems they may be compounding.”
House Hearing
In addition to hearing from the FCC chair and its commissioners, the House Energy and Commerce Subcommittee on Telecommunications and the Internet also heard from the National Football League (NFL) and Viacom. Testimony focused on the Super Bowl halftime show and the Broadcast Decency Enforcement Act of 2004 (H.R. 3717).
Sponsored by Subcommittee Chair Fred Upton (R-MI), the measure would raise the FCC fine for any incident of indecency tenfold, from $27,500 to $275,000, with a maximum penalty of $3 million for a series of infractions.
During the hearing, Rep. Heather Wilson (R-NM), a cosponsor of H.R. 3717, expressed her outrage with Viacom saying that the halftime show had become “the talk of the elementary school playground” in her neighborhood. She stated, “I shouldn’t have to use the NFL halftime show as a negative example to teach my kids. It is hard enough to raise G-rated kids in an R-rated world. Families should be able to watch the Super Bowl together or turn on the car radio without fear of seeing or hearing something indecent.”
Rep. Mike Doyle (D-PA) agreed with his colleague’s comments, but was not convinced the Upton bill would solve the problem of indecent programming. “I’m not so sure that simply raising the amount of potential monetary fines, as the bill before us today does, is all that’s required. While it does seem a necessary step, I wonder if we shouldn’t do so by allowing for a more flexible scale that ties the dollar amount of a fine to a percentage of profit or perhaps a reflection of the share of rating points for a particular broadcast.”
NFL Commissioner Paul Tagliabue stated that the NFL would not take a position on H.R. 3717 because the bill would only apply to broadcast stations and television networks. He then gave a detailed explanation of the NFL’s process in developing the halftime show, concluding, “We in the NFL absolutely recognize and accept our responsibility to ensure that all Super Bowl programming is tasteful, first-class, and highly regarded by NFL fans and the public generally. We will certainly be wiser in dealing with others but, most important, we will change our policies, our people and our processes for managing the halftime entertainment in order to deal effectively with the quality of this aspect of the Super Bowl game.”
Mel Karmazin, President of Viacom, the parent company of CBS and MTV, expressed his concern that the fines contained in H.R. 3717 could bankrupt small broadcasters. He argued that the FCC was more to blame than broadcasters for indecent programming on television. “Before the FCC levies any fines, it must determine that a broadcaster has violated a rule. In the case of indecency, the rules are neither clear nor static. The precedent constantly changes, and the standard is not clearly articulated to broadcasters.” Mr. Karmazin later recommended, “The FCC should undertake a full rulemaking proceeding in which all interested parties can participate so that the constitutional parameters of indecency enforcement can be made as intelligible as possible.”
House Mark-up
Just one day after the hearing, the House Energy and Commerce Subcommittee on Telecommunications and the Internet approved H.R. 3717 by voice vote. During consideration of the bill, a number of amendments were discussed but later withdrawn, including proposals that would have made 90 percent of the fines levied for indecent broadcasts the responsibility of the network; would have considered whether a station produced the indecent programming; would have taken into account a station’s ability to pay fines based on market size and location; would have tied the fine structure to 5 percent of gross revenue for each violation; and would have increased fines on individual performers who violate the decency rules from $10,000 to $100,000.
The House Energy and Commerce Committee has tentatively scheduled a full committee hearing on H.R. 3717 on February 26. Sen. Sam Brownback (R-KS) has sponsored a comparable bill (S. 2056) in the Senate.
