Senate Passes Indecency Bill, Sends it to House
The Senate late Thurs. unanimously passed an indecency bill (S-193) that would raise maximum fines on broadcasters from $32,500 to $325,000. The bill has been sent to the House where it will either go to conference with a measure that the House passed (HR-310) last year or be put to a vote, said a spokeswoman for Senate Majority Leader Frist (R-Tenn).
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“I urge the House to take action on increasing indecency fines so we can send a bill to the White House,” said Sen. Brownback (R-Kan.), who introduced the bill: “It’s time that broadcast indecency fines represent a real economic penalty and not just a slap on the wrist.” The House bill, sponsored by Rep. Upton (R-Mich.), carries steeper fines -- up to $500,000 -- and possible license revocation if 3 violations occur in a broadcast.
Broadcasters’ reaction to the Senate bill was lukewarm as the industry considers its course if House and Senate leaders reconcile the versions. “Responsible self-regulation is preferable to government regulation,” said an NAB spokesman: “If there is regulation, it should be applied equally to include cable, satellite TV, and satellite radio.” That’s unlikely because subscription content receives greater First Amendment protection, constitutional scholars have said (CD Nov 8 p5). “My clients are worried basically of higher fines because they are going to be very deadly,” said attorney Jerome Boros, who represents broadcasters. “This is going to be a heavy cost of business,” he said, adding that maximum fines won’t necessarily be imposed.
A court challenge to Hill decency regulation is a possibility, though talk of such action is premature because no law has taken effect, said industry officials and lawyers. Such regulation could be legally “ripe” for a challenge if there were an enforcement action, said sources -- as occurred after the FCC fined broadcasters more than $3.5 million for racy shows (CD April 17 p1). A challenge might not be successful, because “there’s a lot of room for draconian punishment within the Constitution,” said Boros.
“If you can argue that there is no way that a law can be enforced in a lawful manner, you can proceed to court to challenge the law without waiting for them to come after you,” said Media Access Project Pres. Andrew Schwartzman. Jonathan Rintels, pres.-Center for Creative Voices in Media, said the measure “takes the risk of indecency far, far higher and raises the chances of self-censorship should it become law… It would raise the stakes [so] much that I'm sure the networks will pull out all the stops in terms of challenging it.”
Activists were pleased with the Senate action. “This is a major victory for families,” said Parents TV Council Pres. Brent Bozell: “While the proposed language in the House version of this bill was stronger, the Senate version… is a positive step forward in keeping broadcasters accountable for their actions.”
Concerned Women for America (CWA) also welcomed the bill, said Lanier Swann, dir.-govt. relations. The House bill passed easily because it followed the stir over Janet Jackson’s breast exposure during the 2004 Super Bowl, but the issue stalled in the Senate, which experimented with a broader approach also covering cable and satellite. “The House is a chamber that works a little faster,” Swann said. For next steps, she said, CWA supports the most “expedient” process, whether it’s the House considering the Senate bill or a conference to meld the 2 bills. “We're advocating for whatever will get to the President the fastest,” she said, adding that there would be a “lot of merit in discussing the Upton bill.”
CWA and other advocates of fines legislation were impatient with the Senate Commerce Committee’s studied approach to the matter. The Brownback bill lay on the table for more than a year while the committee allowed the cable industry to conduct a campaign to inform parents about controls on TV sets and remote controls to block unwanted programming.
A la carte legislation never picked up legislative support, although Sen. McCain (R-Ariz.) is still trying to build support for a bill. Meanwhile, former MPAA Pres. Jack Valenti is still working on an industrywide education campaign. But those efforts haven’t appeased critics, who have flooded Senate Majority Leader Frist (R-Tenn.) with calls and e-mails demanding action. “What you saw happen was a response to an outcry from our grassroots campaign,” Swann said: “It’s hard to ignore thousands of call from constituents.”