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Delays, Low Fines Weaken FCC Attack on Indecency

Moreover, the FCC typically has allowed broadcasters to pay fines without admitting a violation of indecency rules. Thus, when a broadcaster's license comes up for renewal, it contains no record of indecency violations that could be used to block renewal.

In more recent cases, the FCC has compelled some broadcasters to admit wrongdoing. But those acknowledgments are accompanied by language in the consent decrees that states the admissions cannot be used against the broadcasters in any way, say broadcasters familiar with the deals.

Even with these shortcomings, Republican Michael K. Powell, who resigned as FCC chairman in March, argued that the agency under his leadership had an impact on indecency. He cited the decision by many broadcasters to impose "no tolerance" rules on on-air talent. The key, Powell said, is raising the political heat on broadcasters and threatening them with the prospect of higher fines.

"No Washington office head wants to bring their CEO before a congressional panel and be grilled for a full day" on indecency, Powell said.

The FCC has struggled to balance First Amendment rights with laws that forbid over-the-air radio or television broadcasting between 6 a.m. and 10 p.m. of "patently offensive" material of a sexual or excretory nature. The courts have not helped much, as the guiding 1978 indecency statute is increasingly irrelevant in an era of 200 unpoliced cable and satellite channels that do not fall under the law.

Some groups say the government should no longer monitor the nation's airwaves because technology -- such as the V-chip and cable and satellite blocking systems -- allows parents to determine what their children watch.

"We're hoping that regulators, lawmakers and the American public come to the same conclusion we have, that the system is broken," said James Dyke, executive director of Television Watch, a coalition that includes most major television networks, the U.S. Chamber of Commerce, some politically conservative organizations and First Amendment academics.

"The first step is realizing that the system is outdated and can easily be hijacked by a very few, if not one individual," he said.

Dyke's reference is to the Parents Television Council, which flooded the FCC with complaints last year. Like the broadcasters, the PTC would prefer the government stay out of regulating content. "But because there is a law and the law seems to be very openly disregarded by the networks so frequently, our only recourse is to go to the congressionally mandated watchdog -- the FCC," said Tim Winter, a former NBC executive who is now the PTC's executive director.

The PTC supports clearer guidelines about what is and is not indecent, Winter said. The FCC has maintained such guidelines would amount to prior restraint of free speech -- a constitutional problem.

What seemed shocking 12 years ago -- tastefully shadowed partial nudity on ABC's "NYPD Blue" -- seems quaint today compared with more recent shows that have drawn fines, such as a Fox television show that featured whipped-cream-covered strippers or an Infinity radio broadcast that included a couple purportedly having sex in New York's St. Patrick's Cathedral.

Jeffrey H. Smulyan, chairman of Emmis Communications Corp., which owns more than 40 radio and television stations and has been hit with $42,000 in proposed fines over the past four years, said the indecency standard is a moving line, one shifting in a more conservative direction.

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