Washington takes aim—and cable runs scared
By John M. Higgins -- Broadcasting & Cable, 4/25/2004 8:00:00 PM
Cable is about to get whacked.
For years, cable networks exploited their immunity from the indecency restrictions that broadcast networks face, luring audience with edgier fare. Now Congress, the FCC, and advocacy groups are plotting a new assault on the cable industry.
And networks like MTV, HBO, Comedy Central, and FX fear that the ride is coming to an end. Indecency critics—successful at clamping down on the broadcast networks—are trying to crack down on all television.
Key critics—from FCC Chairman Michael Powell to House Commerce Committee Chairman Rep. Joe Barton (R-Texas) to groups like the Parents Television Council—see no difference between broadcast and cable television and are calling for new, toughened standards.
"I don't believe the First Amendment should change channels when it goes from channel 7 to channel 107," said Powell at the National Association of Broadcasters convention last week.
The threat by regulators is sure to be a hot topic at next week's National Cable Show in New Orleans, and already industry players are starting to see chilling effects. Programmers have pushed shows with adult themes to later time slots; others are shelving plans to create programs that might offend.
Many cable-network executives declined to be identified for fear their companies would be targeted by overzealous regulators. Says one veteran producer for several cable networks, "If it's real edgy stuff, a lot of networks are saying, 'Let's wait until January,' the hope being that we get out of this election year and a lot of this nonsense goes away.
"Stuff is getting cut that nobody would have blinked twice at before," the producer adds. "On VH1 and MTV, they're saying take that out, it's too much of the jiggling boobies." MTV Networks denies they are telling producers to tone down.
Even at HBO, they're worried. "Everybody is concerned," says an insider. "The documentary that's in the works about the making of Deep Throat is making a lot of people nervous. Nobody was thinking twice about coming under siege for that kind of stuff before."
There's a lot of that "stuff" on cable. In FX's The Shield, a police captain is forced to perform oral sex on a gang member. "Open up, sweetheart," the gang member demands. The players on Comedy Central's The Daily Show regularly call various newsmakers "dicks." On MTV, buxom young women have danced on stage wearing nothing but whipped cream bikinis that melted away in spring heat.
If any of those scenes aired on a broadcast network, an FCC investigation—and possibly a fine—would quickly follow because the networks air programming on public airwaves, a birthright bestowed by Congress.
But even though most major cable networks are owned by broadcasters, the rules for cable are different. In the past, the courts have blocked Congress and the FCC from imposing broadcast-style indecency restrictions on cable for two reasons. First, subscribers "invite" cable into their homes and voluntarily pay for it.
Second, the government must limit free-speech restrictions to the lightest remedy possible, and subscribers can already call their cable operator and order a block on any channel.
Regulating cable programming "is a bonkers idea," says Michael Jackson, chairman of Universal Television, which owns USA Network and Sci Fi Channel. "Broadcast and cable live by different rules. As cable has pushed the envelope, the audience has responded, enthusiastically."
Indeed, Comedy Central execs say they received absolutely no complaints about a recent South Park scene in which a cartoon Mel Gibson defecated on Cartman. "The only time we have continual heat is when it's one of these organized groups, who don't watch the channel anyway," says Comedy Channel President Larry Divney. "I can't let them be the barometer."
New warning shots were fired last week. Barton declared that, unless the cable industry cleans up offensive shows, he'll introduce a bill to force cable to adhere to the same standards as broadcasters. He told an audience at an NAB breakfast that cable TV will get a chance to self-regulate but, if past is prologue, "they will fail."
"If I can see it on my TV and my grandson can click and watch a channel," Barton said, "whether it's satellite, over-the-air, or cable, the same rules in terms of decency should apply."
Sen. John Breaux (D-La.) came one vote short of amending a broadcast-indecency bill, now pending, that would regulate cable as well. The close call has many predicting that concept will come up again and maybe pass when the full Senate votes on the bill.
"Right now, our legislation says, if the Janet Jackson incident happened on Monday Night Football, then there will be a fine; if it happens Sunday night on ESPN, then nothing happens because that's on cable," Breaux says.
Currently, two bills moving through Congress would restrict cable indecency or violence.
Basic-cable networks are the biggest targets. In a letter to Sen. John McCain (R-Ariz.) imploring Congress to hit cable with new rules, Parents Television Council President L. Brent Bozell called basic cable "a kind of Pandora's box for families." The group's latest study, he said, showed that "offensive content was more than twice as frequent on original cable programming as on broadcast TV."
While regulators see a distinction, cable ad sales people don't. They increasingly argue that there's no longer a difference between cable and broadcast. Turner Broadcasting is the leader here, proselytizing to upfront ad buyers about "One TV World." That view may soon be used against them. "The flip side is, why shouldn't regulations on broadcast then be applicable to you?" said the president of one cable programmer. "We think about that all the time."
The most sinister threat, say cable networks, is to creativity. Carl Gottlieb, vice president of the Writers Guild of America, says writers are holding back. "The most insidious thing about even pending legislation is, it makes writers who are supposed to be unfettered minds start to do self-censorship."
Perhaps the greatest fear of most cable companies is the threat that Congress may mandate cable operators to selling networks "à la carte." Critics of cable's rate hikes have long asked why the companies sell programming to subscribers in bundles of 20 or more. Why not sell them individually, they ask, so viewers offended by, say, a three-way sex romp on Heidi Fleiss biopic Call Me (at 5 p.m.) can simply unsubscribe from USA Network but still keep all their other "basic" channels?
That would dramatically transform the cable economics, hugely increasing marketing costs and slamming advertising sales of many channels. In a recent SEC filing, Viacom warned investors about the impact of "à la carte." Such tiering, it said, would cause the networks to lose viewers and advertising dollars.
Network executives are predicting a long fight over indecency. "Six months ago," says one programming chief, "I never would have dreamed we would be here."
Additional reporting by Allison Romano, Steve McClellan, and Bill McConnell
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