Abernathy: Indecency Was Toughest Call


Before exiting the FCC last Friday, Commissioner Kathleen Abernathy talked with B&C's John Eggerton about indecency, kids TV rules, the stalled ownership rule rewrite, and more.

Alone among the commissioners, you never issued a separate statement, for or against, any of the indecency fines you voted on. Why?

Abernathy: Because that is probably the hardest area for me as a commissioner. This is one where I could argue both sides very easily. I am a firm believer in the First Amendment and the right of free speech. And at the same time, I appreciate the need to protect children.

Congress told us that there are certain hours when you need to protect children against indecent material, but it is very, very hard to identify what crosses the line into being indecent and what doesn't. I have watched some clips numerous times and thought, 'Yeah, it is indecent,' and at other times ... there is no special training for this. Unlike other areas of the law, this is almost a gut test, and it is very hard and it is very politically sensitive and emotional for people.

I have a tremendous respect for those who disagree with me. because I realize how hard this is and so I try to do the best job I can. I hope my decisions are right.

Do you still think that a fraction of a second of Janet Jackson's not-even-naked breast is indecent?

Abernathy: I'm not even going to go there. The decision is what it is, and it will go up to the courts.

B&C:Some of the networks argued that they were blindedsided by the DTV kids rules because some of those rules also applied to analog broadcasting and cable. Is that a fair criticism?

All the rules that we were talking about, I had multiple meetings with the industry about them. Now, I am the first to admit that as we go into the new digital world, and we are still going to see how that will play out, some of the new rules will have to be adapted. Certainly, all the meetings that I had with the industry they were aware of all of the options we were exploring because my policy is, I don't want it to be a secret. I want to hear both sides of the argument.

The FCC got an F for spectrum policy preparedness from the 9/11 commission. Is there anything the FCC should have done to speed that return of spectrum of first responders?

Abernathy. The statutory language had no hard date [for the return of spectrum]. And without a hard date, it becomes difficult to move things forward. I'm sure if we go back with 20/20 hindsight, we could say we should have done this and this and this, but the reality is that it is a new technology that requires significant investment by consumers and significant investment by the industry, and the industry has made the investment because we could force them and we did, but we can't make consumers buy the stuff.

We're in the worst possible situation where we are using twice as much spectrum because we are using all the old analog plus the new digital, and we don't want to stay in this middle ground too much longer, and that is why I am pleased that Congress is working on legislation on a hard date.

Chairman Kevin Martin is suggesting a la carte cable is a viable way to address content concerns. Where are you on the issue?

Abernathy: If industry starts offering a la carte, so be it [Monday a number of operators pledged just that]. Would I mandate it? I don't think so. I'm not sure legally I could mandate it. So, that leads us to: What's the problem and what's the potential solution?. The problem appears to be that a number of consumers are getting packages they don't want. I would hope the industry would start responding to that. I just want to make sure we are not heading down a path where we are driving up costs and not getting any value.

B&C:What was the one thing you wish the FCC had done that didn't happen?

I wish we had been able to come with sustainable media ownership rules. The marketplace craves certainty, and I think it is harmful for the industry and harmful for consumers when things remain uncertain for so long. Our job is to provide the framework, and we haven't been able to do that.