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House Raises Penalties for Airing Indecency

By Frank Ahrens
Washington Post Staff Writer
Thursday, February 17, 2005

The Federal Communications Commission could fine broadcasters up to $500,000 for indecency violations under a bill passed overwhelmingly by the House yesterday.

The Broadcast Indecency Act of 2005, approved 389 to 38, is a new version of a bill passed by the House last year in the wake of the 2004 Super Bowl halftime show, when singer Janet Jackson's right breast briefly was exposed. The Senate passed similar legislation but the two bodies were unable to reach a compromise in committee.

Currently, the FCC can fine radio and television broadcasters a maximum of $32,500 for violating its decency standards, which say that "patently offensive" sexual or excretory material may not air between 6 a.m. and 10 p.m., when children are most likely to be watching. The FCC has no jurisdiction over cable or satellite radio and television.

The bill, sponsored by Rep. Fred Upton (R-Mich.), not only would increase the maximum fine by more than a factor of 10, it would also allow the FCC to raise the penalty it can levy on performers who commit indecent acts from $11,000 to $500,000. It also mandates a license-revocation hearing after a broadcaster's third offense and orders the FCC to move faster on processing viewer and listener indecency complaints, imposing what Upton calls a 180-day "shot clock" on the agency.

"Today, we are delivering something of real value to American families," Upton said in a statement. "There must be a level of expectation when a parent turns on the [television] or radio between the family hours that the content will be suitable for children. A parent should not have to think twice about the content on the public airwaves. Unfortunately, that situation is far from reality."

Sens. Sam Brownback (R-Kan.) and Joseph I. Lieberman (D-Conn.) have introduced a similar bill that would raise the maximum FCC fine to $325,000 with a cap of $3 million in fines per day per broadcaster, a provision added to protect smaller and independently owned television and radio stations that say they could not afford to pay such large fines.

The White House Office of Management and Budget backed Upton's bill, signaling that President Bush would sign it, or a version of it, into law.

Two of the four major broadcast networks decried the vote (ABC and CBS declined to comment).

The decision "highlights a significant issue that has not yet been addressed -- that the government must give clear guidance to broadcasters as to what is, and is not, indecent," Fox Broadcasting said in a statement. "Absent such guidance, government action on the indecency issue will undoubtedly have a clear chilling effect on protected speech."

NBC-Universal said in a statement that the bill would "indiscriminately threaten a wide variety of programming."

"Threatening to impose huge fines on an athlete, entertainer, or any individual being interviewed, for an isolated, emotional outburst or for graphic artistic material such as that in "Saving Private Ryan," raises very serious constitutional and free speech issues," the company said. "This approach of increased government regulation and censorship is fundamentally misguided."

Upton's bill also was criticized by actors, singers and other artists for allowing the FCC to crack down harder on the performer who commits the indecent act in addition to the broadcaster who airs it.

But the Parents Television Council, which monitors television, disagreed.

"If Janet Jackson walked into a high school and exposed a nipple, she'd be arrested," said Lara Mahaney, director of corporate and entertainment affairs for the PTC. "Why should that be permissible on broadcast television?"

Edward O. Fritts, president of the National Association of Broadcasters, the trade group of more than 1,100 television stations, said his members are close to finishing a report on what he called "responsible programming" guidelines for broadcasters.

Fritts, who announced yesterday that he will leave the powerful lobby after 23 years later this year, said he hoped self-regulation would stave off government action.

© 2005 The Washington Post Company