INDECENCY BILL COULD ADD SAFE HARBOR AMENDMENT FOR VIOLENCE

With its consideration today (Tues.) of S-2056, Broadcast Decency Enforcement Act, the Senate Commerce Committee looks as if it will try to make some of the changes made last week by the House. A manager’s amendment from Senate Commerce Committee Chmn. McCain (R-Ariz.) and bill- sponsor Sen. Brownback (R-Kan.) will incorporate some of the criteria for the FCC to assess fines, including whether affiliates had an opportunity to review the show, the size of the market and the size of the audience.

The Committee appears ready to focus on violent TV programming content as well. Committee ranking Democrat Hollings (S.C.) said he will push for inclusion of his safe harbor from violent content. McCain also will push for an amendment to require cable operators provide “a la carte” pricing. Consumers Union (CU) asked senators to support the proposed cable regulations and to strengthen FCC ownership rules.

Hollings said he will attempt to add S-161, the Children’s Protection from Violent Programming Act, to the broadcast decency bill (S-2056) from Sen. Brownback (R-Kan.) Hollings has introduced the bill each of the past 6 sessions; 3 times it has passed the Senate Commerce Committee by a wide margin but failed to pass the Senate. The bill would require the FCC to study the effectiveness of the V-Chip. If the V- Chip proves ineffective (which Hollings has said he is sure it will be), the FCC must produce rules to prevent the broadcast of violent content 6 a.m.-10 p.m. Brownback has frequently expressed concerns about violent content on TV, citing “brain mapping” studies that he says shows the negative effects of violent content on children.

The amendment from McCain and Brownback would give the FCC 18 months to resolve complaints and Notices of Apparent Liability. HR-3717 puts a 180-day “shot clock” on the FCC, and Sen. Nelson (D-Fla.) could offer an amendment to adopt the short deadline proposed by the House. Sen. Lautenberg (D-N.J.) will likely offer an amendment directing the FCC to begin license revocation hearings after 3 indecent broadcasts, another provision of HR-3717. Sen. Stevens (R- Alaska) will push an amendment that lets the FCC assess larger fines if the indecent broadcast is during children’s programming or to a large national audience (like the Super Bowl.) And Sens. Dorgan (D-N.D.) and Lott (R-Miss.) will push amendments that will restore the cross-ownership rules changed by the FCC in June. They will also ask the GAO to study the relationship between consolidation and indecency violations.

In a letter sent to senators Mon., CU said it supports the addition of a violence amendment to S-2056. “An amendment to study the value of the V-chip at preventing this programming and setting aside violence-free family viewing time is essential to ensure that families are not forced to put up with gratuitous violence during the few evening hours they can gather together and enjoy television,” wrote Gene Kimmelman, CU Senior Dir.-Public Policy & Advocacy.

CU also asked the senators to support additional regulations on cable and stricter ownership rules. CU said NCTA’s “Cable Puts You in Control” program for consumer education is insufficient. “The Cable Puts You in Control program is a purely voluntary approach that provides no new avenues or tools for programming control, but rather relies on consumers to seek out industry-controlled Web sites and pamphlets to learn about existing measures,” the letter said.

CU urged an end to the “cable and satellite industry practice of forcing families to pay for cable programming that they find objectionable or offensive.” The CU letter said while cable operators will argue that “a la carte” will increase prices for consumers, “it is hard to imagine that an industry that can offer ‘plug and play’ equipment to prevent piracy, and digital boxes to deliver pay-per-view and other packages of services, cannot at the same time offer consumers the right to pick the channels they want with this equipment.” “Consumers Union continues to recycle old arguments that were even rejected by the General Accounting Office last fall in its October report to Sen. McCain, which stated that consumers could be hurt by an a la carte mandate because it would likely resolve in less choice and more cost to consumers,” an NCTA spokesman said. CU also argued for “realistic media ownership rules.”

One broadcast industry source said the House bill was considered “extreme” and that the Senate was likely to approve a more moderate measure. Perhaps the most controversial provision of HR-3717 was the proposal to raise the fines the FCC can levy against the individual performer. It likely led to Rep. Schakowsky’s (D-Ill.) vote against the bill. She was the only member to vote against the measure, which passed the Committee 49-1 and is scheduled for House floor consideration on Wed. or Thurs.

TV and radio performers see the fines threatened against performers as a “bread and butter issue,” said Thomas Carpenter, national dir.-news & bcstg. for the American Federation of TV & Radio Artists (AFTRA). AFTRA issued a statement late last week emphasizing a basic policy that “responsibility for complying with FCC regulations rests with the licensees,” not performers who have little control over program content or when pre-recorded content is aired.

“Something that is indecent during the Saturday morning cartoons is not necessarily indecent at 3 a.m.,” Carpenter said. He also said media companies often press radio personalities and TV performers to press the limits for ratings: “It would be horrible if a producer says go out there and push the envelope, so a performer gets a $100,000 fine,” which is often much more than they make a year.

Asked whether the producers are liable for live events like the Janet Jackson Super Bowl incident, Carpenter said such events are rare, but even in those cases producers remain responsible for content: “It shouldn’t be a great surprise, for example, that Howard Stern is going to be provocative. If companies need to take steps and delay a few seconds, that is one possible way around it.”

It’s hard to say whether AFTRA would appeal any performer fines on First Amendment grounds, Carpenter told us: “We would have to see how it all plays out. But we've been pretty quick to defend our members when they're asked to absorb fines.”