Congress Acts to Curb Offensive Programs
Senate Panel Proposes Stiff Fines, Delaying Media Consolidation

By Jonathan Krim
Washington Post Staff Writer
Wednesday, March 10, 2004

A Senate panel yesterday paved the way for a broad crackdown on radio and television programming deemed offensive, including stiff fines for entertainers who break indecency rules and limiting violence that can be seen by children.

With the House scheduled to vote Thursday on its version of an indecency bill, Congress is moving swiftly in the wake of public outcry over a Super Bowl halftime show in which performer Janet Jackson's breast was bared by singer Justin Timberlake. President Bush has indicated he supports the House legislation, which would allow fines of up to $500,000 per incident that could be levied by the Federal Communications Commission against violators of its indecency rules.

But the Senate Commerce Committee sharply raised the stakes for the entertainment industry, which has pledged to police itself and has been careful not to openly oppose tougher FCC regulation.

The Senate bill would temporarily roll back controversial rules passed by Congress late last year that allow some media organizations to get larger. By a 13-10 vote yesterday, the panel passed an amendment sponsored by Sens. Byron L. Dorgan (D-N.D.), Trent Lott (R-Miss.) and Olympia J. Snowe (R-Maine) that would put the rules on hold for a year until the General Accounting Office can study the relationship between indecent programming and media consolidation.

"These issues are inevitably related," said Dorgan, who last year led an effort in the Senate to roll back the new media ownership rules. But Sen. Sam Brownback (R-Kan.), who sponsored the overall bill, said the amendment would be "a deal killer" that threatens passage of any indecency legislation.

If the provision survives a full Senate vote and then negotiations with the House, it would pose a challenge for FCC Chairman Michael K. Powell, who supported even greater easing of media concentration rules, while also beating the drum for tougher indecency enforcement.

Jonathan Cody, a legal adviser to Powell, responded that the FCC has seen no evidence that the issues are linked. In fact, Cody said, the presence of intense media competition in the Internet age has driven programmers to use more and more sexually driven programming, because it attracts viewers and listeners and sells advertising.

The Senate panel also passed an amendment by Ernest F. Hollings (D-S.C.) that directs the FCC to investigate whether technologies designed to block violent content, such as the V-chip, are working.

If they are found to be deficient, the amendment empowers the FCC to curb violent programming during hours when children are likely to be watching. It also would prohibit violent programs from being broadcast if they are not properly coded so they can be electronically blocked by parents.

A spokesman for Rep. Fred Upton (R-Mich.), lead sponsor of the House bill, said the congressman hopes that unrelated provisions, concerning media ownership and violence, for example, will not be attached to a final bill that would be sent to President Bush.

Like the House Energy and Commerce Committee, the Senate panel approved increasing fines for indecency, from the current $27,500 per incident to a maximum of $500,000 after a third violation.

The House version allows for a $500,000 fine after a first offense, and requires the FCC to consider revoking a broadcaster's license after three violations. The Senate bill would require license revocation be considered with any fines, and allows the FCC to double fines for indecent, obscene or profane language or images when the offending programming was scripted or planned in advance, or if the audience was unusually large -- such as for a national or international sporting or awards event.

That would encompass entertainment awards shows, during which artists have uttered expletives. The bill approved by both the House and Senate committees would give the FCC the ability to impose the same fines on artists as on broadcasters, if the on-air talent willfully used indecent or profane language or images when they knew it would be broadcast.

That provoked sharp reaction from the union representing disc jockeys and other radio and television personalities, which fears Congress and the White House are hurtling toward censorship in an election-year frenzy to curry favor with certain voting blocs.

"If you're penalizing the person who is performing, because the words come out of their mouths . . . that has definite First Amendment implications," said Thomas Carpenter, national director of news and broadcasting for the American Federation of Television and Radio Artists.

Jack Myers, who publishes an independent newsletter about the media industry, sees the recent moves in even darker terms.

"The danger we face is when we are overly sensitive to the protective right guard," Myers said. "We've elevated Janet Jackson to a position of glorification, and we're on the verge of making Howard Stern a martyr. We're edging toward a McCarthyism that strikes fear in the hearts of communications companies."

Since the Jackson incident, Stern's syndicated show has been booted from six stations owned by radio giant Clear Channel Communications Inc. He remains on the air on about three dozen other stations. Florida radio personality Todd Clem, known as Bubba the Love Sponge, who worked for Clear Channel, was fired for indecent conduct on the air.

Stern, whose topics frequently include sex, has responded on his show with harsh attacks on the Bush administration, warning that he might soon be forced out of his job by FCC investigations and urging his listeners to vote against those who support censorship.

More recently, he has claimed that the FCC has delayed moving against him because it fears that he could turn tens of thousands of often conservative voters away from President Bush.

A spokeswoman for the FCC's enforcement bureau declined to comment on whether the agency is investigating Stern's show. Stern's agent, Don Buchwald, also refused to comment.

By a 12-11 vote, the Senate committee defeated a provision that would have extended the FCC oversight provisions of indecency and violence to cable and satellite programming, except for pay-per-view channels such as HBO.

Courts have generally held that any programming for which users must pay, including basic cable and satellite service, cannot be regulated in the same way as shows beamed over public airwaves.

© 2004 The Washington Post Company