Super Bowl Ruling Likely to End Up in Court
The FCC’s context-based ruling Wed. on Janet Jackson’s Super Bowl performance (CD Sept 23 p3) raised First Amendment concerns, which are likely to end up being battled out in the courts, attorneys said. “The Commission clearly has tried hard to come up with a positive smile,” said Media Access Project Pres. Andrew Schwartzman: “But it’s almost impossible to do this ruling without getting into First Amendment issues.”
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
The FCC’s long-awaited fine against Viacom’s 20 owned CBS stations for the Super Bowl halftime show was based on the entire context of the event, the Commission said. “There are limits to how much we can get into given the First Amendment,” said Comr. Abernathy speaking at the Kaiser Research Foundation Thurs. Viacom had said it would appeal any fines.
One of the problems is defining nudity, said attorney Kurt Wimmer, noting Jackson’s breast had a piece of jewelry covering her nipple. “So what is actual nudity?” Schwartzman asked. Schwartzman said the decision underscores the difficulty of defining indecency: “This is something that you are going to see get resolved in court.”
A Kaiser Foundation study released Thurs. said only 17% of parents surveyed said they were very concerned about the impact of the Super Bowl incident on their children. “The Super Bowl was a galvanizing event on media indecency,” said Sen. Brownback (R-Kan.), speaking at the Foundation. He categorized it as the straw that broke the camels back because parents were fed up with indecent content during primetime. He said he was glad the $555,000 in fines were issued. “We are giving the commissioners, such as Abernathy and others, more tools and bigger tools to issue fines,” he said.
While the FCC couldn’t punish Jackson and performer Justin Timberlake, Congress may change that, officials said. Decency legislation pending in the House and Senate also would increase fines levied against broadcasters. In the House bill, performers could face the same punishment as the broadcasters that aired the programming. A similar bill could be introduced in the Senate, Brownback said. “I don’t know of opposition on the Senate side to that, so if it’s one that gets broad-based support it will probably be in,” he said.
One issue of growing concern is the rating system parents can use to filter out content they don’t want their children to watch. “What concerns parents most is not isolated incidents, but the sex and violence they believe their kids are exposed to every day in the shows they regularly watch,” said Vicky Rideout, vp-dir. of the Foundation’s Program for the Study of Entertainment Media & Health. She said many parents don’t know how to use the V-chip, or even that their TV sets have a V-chip.
Many parents don’t understand what the various ratings guidelines mean. The Foundation study found that 28% of parents of young children know what the rating TV- Y7 means, which is directed at children age 7 and older, while 13% think it means 7 and younger. Only 12% of parents know the rating FV (fantasy violence) is related to violent content, while 8% think it means family viewing. “I find it complicated myself,” Brownback said.
On Sept. 28, the Senate Commerce Committee plans a meeting on the rating system and whether there should be a more-uniform set of ratings, Brownback said. “I think it’s important that we wrestle with this issue,” he said.
The Senate approved raising decency fines this year when it attached Brownback’s (S-2063) to the Senate’s Defense Dept. Authorization bill (S-2400) (CD June 23 p1). However, the measure attached to DoD bill was a simpler version of the bill than the one which passed the Senate Commerce Committee on March 9 (CD March 10 p1). After raising fines to a maximum of $500,000 during the March markup, the Senate attachment to DoD raised FCC by a factor of 10 to $275,000, which Senate sources said was for simplicity. The amendment included controversial media ownership provisions pushed by Sen. Dorgan (D-N.D.), which most sources said would almost surely be removed during the conference on the DoD bill. The House passed decency legislation in March (CD March 12 p1), which included fines up to $500,000, as well as FCC authority to fine on-air talent. While the Senate has appointed conferees to the DoD conference, Brownback isn’t one of them. Commerce Committee Chmn. McCain (R-Ariz.) and Committee members Ensign (R-Nev.) and Nelson (D-Fla.) are on the panel. The House hasn’t appointed conferees, but sources said House Commerce Committee Chmn. Barton (R- Tex.) and Telecom Subcommittee Chmn. Upton (R-Mich.) have attended informal meetings on the DoD bill.