CABLE DRAWS LEGAL DISTINCTIONS ON INDECENCY
With TV executives and federal officials still reeling from singer Janet Jackson’s breast exposure at the Super Bowl, cable industry officials said they expected little fallout for their industry from the FCC investigation or from possible action on Capitol Hill. NCTA Senior Vp-Law & Regulatory Policy Daniel Brenner said there was a well- entrenched legal precedent that distinguished between broadcasting and cable on indecency. “The law has recognized a difference,” Brenner said, between programming that came into the home free and unfiltered over the public airwaves, and cable, a paid subscription medium that was invited into the home.
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Brenner and an NCTA spokesman also said there were tools available to block objectionable content on cable. Citing a May 2000 Supreme Court ruling (CD May 23 2000) in which the Playboy channel won a First Amendment case against the FCC, Brenner said there were blocking techniques that any customer could request and employ to ensure that objectionable content, even from signal leakage, didn’t enter the home. In the Playboy case, a deeply divided Supreme Court said the FCC couldn’t limit sexually explicit cable networks to late-night hours if they didn’t fully scramble or block the channels for viewers who didn’t want them. The majority said there were other means available to achieve the same goals of keeping the content out of the home without impinging on cable networks’ First Amendment rights. Part of the high court’s reasoning in that case was that cable provided greater means of individual control than the broadcast medium.
Nevertheless, FCC Comr. Copps has expressed concerns that cable might be part of the problem when it came to sex and violence in entertainment and in the American culture, and some members of Congress have been raising that issue as well. In fact, one key argument broadcasters are making as they seek must-carry rights in the digital transition is the migration of content to cable. As cable provides more cutting-edge fare, broadcasters have been trying to keep up in terms of innovation of programming. While Copps has called the competition a “race to the bottom,” others have said that the intense competition and audience fragmentation with the proliferation of cable channels had forced broadcast to become edgier. Copps and some advocacy groups have pointed out that most viewers didn’t know whether they were watching broadcast or cable, that everything looked like just another channel.
Copps is pushing for a return to a TV code of ethics that would establish certain standards of decency, and Comr. Martin, who also has expressed concerns, has suggested a “family tier” of cable programming. All this comes as Chmn. Powell is leading the investigation into what went awry in the Super Bowl halftime show, which was shown at a time when children could have been, and indeed were, watching. The Commission has defined broadcast indecency as language or material that depicts or describes, in terms patently offensive as measured by “contemporary community standards” for the broadcast medium, sexual or excretory organs or activities. The Commission has a rule that indecent content can’t be aired between 6 a.m. and 10 p.m. Obscenity is not protected by the First Amendment at any time.
Cable industry officials said it was unlikely that the restrictions on broadcast would pass constitutional muster for cable. Asked about the argument that viewers couldn’t tell the difference between broadcast and cable, Brenner pointed out that every month, viewers write checks for cable and didn’t have to do that for broadcast channels received over the air. “That is a conscious decision that people are making,” he said. While NBC chose to omit a scene on last week’s ER because of the current atmosphere, NCTA officials said they weren’t aware of similar moves by cable operators or programmers.
The NCTA spokesman said cable had been at the forefront in providing children and family programming, including the Disney Channel, Nickelodeon, Discovery Kids, ABC Family and the Hallmark Channel. He also pointed to a variety of cable industry education efforts, including collaborations between Cable in the Classroom (CIC) and the National PTA to educate children and parents on responsible viewing with workshops, videos and workbooks. The cable industry also played a leading role in developing and implementing the current TV parental guidelines, which give parents information about the content of TV programs, he said, and NCTA, as well as NAB and the Motion Picture Assn. of America (MPAA), had produced and distributed public service announcements about TV ratings and the V-chip. Cable also can provide parents with blocking tools, he said.
The NCTA declined to say whether any cable operators or programmers had contacted the association in recent days with concerns over possible fallout for cable. It also declined to comment on any possible congressional action.