SENATORS MULL CABLE REGULATION IN HEARING ON BROADCAST INDECENCY
A la carte pricing for cable or DBS services was a popular idea among officials at a Senate Commerce Committee hearing on broadcast indecency Wed. Although the hearing focused on broadcast indecency, several members of Congress and a few FCC commissioners said it was increasingly difficult to distinguish cable and DBS from broadcast TV and all of those industries should be part of the debate. FCC commissioners also told members in both the House and the Senate that they supported efforts to raise FCC fines for indecent broadcasts.
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Senate Commerce Committee Chmn. McCain (R-Ariz.) and FCC Chmn. Powell said cable and DBS weren’t excluded from discussions about decency. “You can’t have this conversation without talking about cable,” Powell said. McCain also supported the idea of requiring cable operators offer a la carte delivery of channels, which would give parents more control over the content coming into the home and save money. Sen. Boxer (C-Cal.) said the idea “made sense.”
Powell said that cable had a legal obligation to block channels at customers’ requests, but the FCC has “little authority” over cable and DBS. McCain said it might be time for legislation that would give the FCC more power to regulate multichannel video services. But FCC Comr. Copps said he doubted whether the Commission was as “toothless” toward cable as some would have people believe. He said the Playboy case in the U.S. Supreme Court applied some regulatory requirements to cable. Local franchising authorities could be given more oversight, he said. Copps also said that since DBS used spectrum, it could be subject to additional regulatory requirements.
McCain said cable rates continued to rise faster than the rate of inflation and there appeared to be little competitive pressure on cable operators. FCC Comr. Martin said “we have to find a way to address the cable side as well” and predicted the a la carte idea would get more attention. Martin said cable and satellite operators should offer an exclusive “family-friendly” basic programming tier. He said he had urged cable and DBS to take action on the suggestion, but had heard no response.
Sen. Breaux (D-La.) said in comparing cable, DBS and broadcast networks that “we've reached a distinction without a difference.” He said it could be appropriate to expand FCC authority with respect to cable. FCC Comr. Abernathy said the difference between cable and broadcast TV needed to be “bridged.” Copps said the Commission should convene an industry summit that included cable and DBS operators, along with the networks and their affiliates.
Commissioners also stressed the need for dialog with the industry. Powell said he had “challenged” NAB and the network owned stations to reinstate a voluntary code of conduct. He also asked the networks to take affirmative steps to “better protect the public.” Powell challenged the cable industry to better educate the public about family- friendly programming and how to best use technological aids, such as the V-chip, which he acknowledged had “not been an overwhelming success” (see separate story).
Senate Commerce Committee ranking Democrat Hollings (S.C.) challenged Powell on his suggestion about a voluntary code of conduct. “Indecency is not voluntary, it’s in the statute,” he said. He also said Powell hadn’t vigorously enforced indecency rulings, and the FCC should have sought license revocation for a Detroit radio station it fined for indecent content. But Powell said the station had broadcast the offending content before the agency issued a stern warning to broadcasters that repeated violations could mean revocation hearings. He said the courts probably would rule against the FCC if it went after the Detroit station’s license because the penalty would be applied retroactively.
Members used the hearing to express concern about other issues related to content. Hollings said violent content was a concern and Congress should pass S-161, a bill he introduced to create a TV safe harbor from violence. Sen. Brownback (R-Kan.) has introduced legislation with Sens. Graham (R-S.C.) and Stevens (R-Alaska) that would raise FCC fines. The bill is similar to HR-3717, by House Telecom Subcommittee Chmn. Upton (R-Mich.), that is scheduled to be marked up today (Thurs.), 9:30 a.m., Rm. 2123, Rayburn Bldg.
Powell told the senators that the FCC had “the most aggressive enforcement regime in decades” and had taken additional efforts to step up enforcement, including: (1) Seeking authority for larger fines. (2) Treating multiple indecent utterances in a program as constituting multiple indecency violations. (3) Beginning license revocation proceedings for “egregious and continuing disregard of decency law.” (4) Bringing more cases up for Commission review.
Martin also suggested several steps that should be taken to improve TV content, saying the FCC should enforce indecency law more rigorously and should urge broadcasters to reinstate the family hour. Local affiliates should have the right to reject inappropriate programming, he said. Martin said the FCC should act on an open Network Affiliated Stations Alliance (NASA) request for FCC clarification of network affiliates’ rights to reject objectionable network content. Copps also said the Commission should reaffirm broadcasters’ autonomy to decline network programming.
Copps said the FCC should be using its “full authority” to punish transgressors, including the use of license revocation hearings. The complaint process needs to be reformed, he said, and the agency shouldn’t ignore graphic violence.
Several members used the hearing to tie content concerns to media ownership. Sen. Wyden (D-Ore.) said declines in content could be linked to the loss of local broadcast control. Sens. Dorgan (D-S.D.), Snowe (R-Me.) and Lott (R- Miss.) also expressed concern about increasing consolidation. Copps said network O&Os never declined network programs based on community standards, while locally owned affiliates often declined content. -- Terry Lane
House Hearing focuses on Super Bowl Incident
A simultaneous hearing by the House Telecom Subcommittee focused on the Super Bowl half-time incident and HR-3717, which would raise the amount the FCC could fine stations for indecency by tenfold. Rep. Wilson (D-N.M.) compared Viacom with Enron “for demonstrating bad corporate behavior.” Saying her 4th-grade son said the performance was “nasty,” she said “we need to ask ourselves where you [witnesses Mel Karmazin of Viacom and NFL Comr. Paul Tagliabue] corporate CEOs lost your way… You knew that shock and indecency create a buzz that moves market share and lines your pockets.”
Karmazin and Tagliabue repeated their earlier denials of advance knowledge that Janet Jackson would expose a breast, and steps that had been taken to prevent such an incident in the future. Officials of NFL, Viacom and its CBS and MTV (which produced the half-time show) said there was no indication -- including attendance at 2 dress rehearsals -- of what Jackson planned. Rehearsal tapes were sent to the FCC Mon., along with other Super Bowl material, Karmazin said, as part of the Commission’s separate investigation.
Numerous members of parent House Commerce Committee attended the hearing and opening statements took up nearly 2 hours. Subcommittee Chmn. Upton (R-Mich.) said “well before the Super Bowl episode, many Americans were fed up with the all too frequent flouting of common decency over the public airwaves.” He said HR-3717 (which Upton introduced along with others before the Super Bowl) “is a tough bill which… would help clean up our airwaves. Even the mere introduction of the bill is already forcing broadcasters to be more responsible.”
While the bill doesn’t apply to cable and satellites, Upton expressed hope that they “would adhere” to a voluntary code of conduct for programming during the hours children were most likely to be watching. Rep. Pickering (R-Miss.) said broadcasters also should be included in such a voluntary code. Upton said the bill was “not about making a government entity the nanny” of what children saw on TV, with the ultimate responsibility belonging to parents.
Ranking Commerce Committee Democrat Dingell (D-Mich.) criticized what he called “the seeming indifference” of network executives to the “patently offensive” half-time show as well as violent commercials aired during the Super Bowl. He also was critical of Fox and NBC officials for not accepting invitations to testify at the hearing: “I can conclude only that they are insufficiently aware of the seriousness of concern [by members of Congress]… It appears that these executives consider these penalties [up to $275,000 per violation] nothing more than lunch money -- a small cost of doing business.”
Rep. Markey (D-Mass.) said some station executives considered their broadcast licenses “as mere corporate commodities and they air content replete with raunchy language, graphic violence and indecent fare… It is increasingly clear that the paltry fines the FCC assesses [for indecency] have become nothing more than a joke… simply a cost of doing business.” He also was critical of what he said was the “FCC’s utter unwillingness” to revoke licensees or raise indecency charges during the renewal process: “Clearly, Congress will have to address these shortcomings at the FCC.”
Rep. Green (D-Tex.) suggested that HR-3717 be amended to place the onus for indecent programming on the TV networks (which aren’t licensed) rather than the affiliates (which are). Rep. Stupak (D-Mich.) called for additional hearings on concentration of ownership as it affected First Amendment issues. Rep. Doyle (D-Pa.) suggested that the size of fines be related to stations’ revenue, while Dingell would base the fines on profit.
Karmazin attempted to “shine a light on all the positive social contributions” that TV and radio stations made. He said “a few regrettable moments” in the Super Bowl had “overshadowed our many good deeds and the quality programming that our company produces.” Everyone at CBS, Viacom and MTV is “shocked and appalled and embarrassed” by what took place, Karmazin said.
“Artists are pushing new limits and… high-definition digital technology is delivering their words and actions clearly and crisply,” Karmazin said. He said CBS’s cut-away camera limited the Jackson breast exposure to less than a second and at the start of the 2nd half it protected viewers from being exposed to a streaker. CBS used “groundbreaking technology” to delay Sun. night Grammy Awards by 5 min., Karmazin said, and “I pledge to you that the CBS Television Network will use it or something better whenever appropriate” in future live telecasts. Anything more drastic could mean eliminating all live programming.”
Increasing the FCC’s fining authority would be “putting the cart before the horse” and wouldn’t solve the “chronic problem… that is the vagueness of the FCC’s indecency standard,” Karmazin said. The Commission’s rules are “neither clear nor static,” he said: “The precedent constantly changes and the standard is not clearly articulated to broadcasters.”
Karmazin detailed several steps Viacom, its 2 TV networks and its Infinity radio division already had taken to prevent a recurrence of the Super Bowl half-time situation. They included equipping all owned TV stations with delay systems, which already were in place at the radio stations, with instructions to “vigilantly utilize them… Appropriate action, up to and including termination, will be taken against any Viacom employee who violates this policy.”
Committee members questioned Karmazin about previous indecency fines and allegations against Infinity stations -- with emphasis on the Opie and Anthony sex broadcast more than a year ago. He said the broadcast was inappropriate and that all persons connected with it had been fired -- but Viacom hadn’t paid the FCC fine on advice of its lawyers, who contended the program wasn’t indecent under previous FCC rulings.
Tagliabue said “I was a heck of a lot more concerned about security and other things” before the Super Bowl than the suitability of the half-time show. In retrospect, he said, “I feel like we gave the keys to the car to someone else to drive… The show that MTV actually produced this year fell far short of the NFL’s expectations.” The NFL “will change our policies, our people and our processes” for future telecasts, he said.
Upton said the subcommittee would mark up HR-3717 today (Thurs.) and a 2nd indecency hearing, at the request of Dingell, would be held after next week’s congressional recess for Presidents Day. The full Committee expects to report the bill out in March, he said.