HOUSE AND SENATE FIGHT FOR WITNESSES FOR BROADCAST DECENCY HEARINGS

While both hearings focus on broadcast content, they appear to be taking somewhat different angles. The House Telecom Subcommittee will focus primarily on legislation (HR- 3717) by Subcommittee Chmn. Upton (R-Mich.) that would raise the maximum FCC fines for indecency violations. It’s the Subcommittee’s 2nd hearing this session on broadcast indecency; the first was Jan. 28 (CD Jan 29 p4). This hearing is scheduled for Feb. 11, 9:30 a.m., Rm. 2123, Rayburn Bldg.

The Senate Commerce Committee is taking a broader look at broadcast content. Along with sexually based content, it’s scheduled to discuss violent content and is likely to be a forum to promote ranking Democrat Hollings’ (S.C.) bill (S- 161) that would include violent content in the family hour safe harbor. It’s also scheduled for Feb. 11, 9:30 a.m., Rm. 253, Russell Bldg.

The Senate hearing also will promote Commerce Committee Chmn. McCain’s proposed FCC Reauthorization Act (S-1264), which would make several changes in FCC policy, including larger fines for all violations. Senate sources were touting the Reauthorization Act as a more complete modification of FCC procedures that actually would take a tougher stance on indecency than Upton’s approach, while also addressing other lingering issues such as the UHF discount for broadcasters and FCC travel policy.

Hollings has tried for years to win passage of his safe harbor concept for violent programming. The bill would extend the family hour protections to include violent content. It would direct the FCC to study how effective the V-chip was in blocking violent content. If it’s not effective, which a Hollings spokesman said was obvious, the FCC would have to develop rules for preventing violent content between 6 a.m. and 10 p.m. Hollings has said he believes such a measure would pass a constitutional challenge since the similar safe harbor for indecent content has been upheld by the courts. The Committee has passed the bill 3 times in the past, all by overwhelming margins, but it has failed to be considered by the full Senate.

Senate sources were touting McCain’s bill as a stronger solution to broadcast indecency than Upton’s. Both would raise fines for indecent broadcasts, but sources emphasized that McCain’s bill also urges the use of license revocation hearings for repeated offenders as a deterrent, which isn’t specifically mentioned in Upton’s bill. McCain’s bill also would allow the FCC to impose fines for each utterance, but Upton’s wouldn’t, sources said. However, Upton’s bill would set slightly higher fines by allowing the FCC to fine up to $275,000 for each utterance and a maximum of $3 million. McCain’s bill would establish a $250,000 fine with a $2.5 million maximum.

McCain’s FCC bill has FCC Chmn. Powell’s support, and it passed the Senate Commerce Committee in June. However, the bill contains several modestly controversial provisions, and those in industry contacted for this story said they haven’t heard much buzz around McCain’s proposal. The bill would raise fines for all violations, including interconnection infractions by ILECs. The bill would eliminate the 50% UHF discount, a change opposed by the NAB. Also, the bill would: (1) Require an investigation of the e-rate program. (2) Prevent FCC officials from accepting private money for travel. (3)Prevent bankruptcy filings to avoid spectrum payments. Sources said the bankruptcy provision, which targets the NextWave case, has raised concerns at the Senate Judiciary Committee, which has bankruptcy jurisdiction.

Viacom Seen More Likely to Suffer More than Affiliates

Viacom, owner of CBS and MTV, should bear a heavier burden than its 200-plus affiliates as a result of allegations CBS aired indecent content during the Super Bowl half-time show, several attorneys said.

FCC Chmn. Powell, who’s spearheading investigation of the broadcast, could consider Viacom a repeat offender, suggested attorney Frank Jazzo. Jazzo referred to the case against Viacom-owned Infinity Bcstg. for broadcasting an Opie & Anthony show where the hosts conducted a contest encouraging listeners to have sex in unusual places. WKRK- FM, also Viacom-owned, was fined for airing a 20-min. show discussing explicit sexual acts.

Other indecent broadcast cases can be used as precedents in the CBS case, Jazzo said. Young Bcstg. was slapped with the maximum $27,500 fine for broadcasting indecent material on KRON-TV, San Francisco, where a performer being interviewed on a morning show exposed his penis on camera (CD Jan 28 p1).

CBS affiliates, which help finance the NFL programming, expressed outrage over the Jackson incident, a broadcast attorney said. “I would be surprised if the affiliates would be fined in this case,” the attorney said, saying the affiliates had no opportunity to screen the content before it went live. CBS officials said after the episode they had seen the rehearsals for the half-time show. However, the FCC’s clearest jurisdiction and least legal risk is fining the affiliates, one source said.

The FCC is feeling heat from Congress, which is on the warpath, Jazzo said, and Powell could hold a license revocation hearing. Comr. Copps has suggested such a proceeding would send a strong message to those that repeatedly violate indecency rules.

Meanwhile, NBC decided to edit out a shot of an exposed breast of an 80-year-old woman a new episode of “ER,” that aired Thurs. “We have unfortunately concluded that the atmosphere created by this week’s events has made it too difficult for many of our affiliates to air this shot,” NBC said. -- Terry Lane, Tania Panczyk-Collins

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Janet Jackson’s Web site may be the hottest on the Internet, but the controversy over her overexposure has made the FCC Web site a “hot” item as well. The Yahoo Buzz Index said the FCC Web site was the 6th-fastest growing one in the world Wed., up more than 1,000% in hits from the previous period. Of course, the Drudge Report site, which actually had a picture of the event, was the 4th-fastest growing, up 1,500%. Despite the rapid growth, the FCC Web site still didn’t make the top 20 in total number of hits, which was led by the Jackson site, 2 Super Bowl sites, the Drudge Report site, Justin Timberlake site and the MTV site. FCC officials said there was no evidence that its Web servers were being overwhelmed by the traffic.

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The Fuse cable music network was having some fun at rival MTV’s expense. Fuse issued a news release and published an open letter in the New York Post, proclaiming solidarity with MTV, which produced the Super Bowl half-time performance in which Justin Timberlake exposed Janet Jackson’s breast. “Every day the entertainment industry is a victim of senseless, brutal wardrobe malfunctions, accidents and outright crimes,” the Fuse letter commiserated: “Even though we are competitors, we think it’s time to put aside our differences and take a stand. Let us not dwell on last Sunday’s half-time show -- the dated songs, the random crotch grabs and the senseless lip-synching. No. Let’s put that all aside and focus on the issue at hand: Velcro just does not work.” Fuse said many at the network had suffered wardrobe malfunctions and “understand the life-long impact one single costume catastrophe can have.” Fuse joked that it was willing to donate generously to the “Institute For the Development of Advanced Double Adhesive Nipple Tape.”