After about 15 minutes of discussion of S.193, the Senate-passed bill upping FCC indecency fines to $325,000 per violation, the House Tuesday night put off a vote until Wednesday, as expected.
The delay followed the call by Rep. Fred Upton (R-Mich.) for a roll call vote, which will put legislators on the record on the bill when the vote is held Wednesday.
In fact the speaker was seconds from proclaming the bill passed by a 2/3 majority voice vote when Upton called for the yeas and nays, which put off the vote for a day, but not the outcome, which will be passage.
Only four legislators stood up to talk about the bill, with only one, Democrat Diane Watson of California, opposing the bill for what she said was the third time. It likely won't be the charm, since the bill is virtually assured of passage.
The House has already passed a similar bill, which was later stripped out of a defense appropriations bill.
Urging her colleagues to vote against it, Watson said that merely upping the fines 10 times would not solve the problem, but was instead "a weak attempt" and "uncreative policy that will harm our creative community."
Watson argued that the root cause was media consolidation and a lack of competition, and that the solution was less consolidation and more public-interest requirements for media companies.
Taking issue with the business of broadcasting, she said that a "consolidated media market controlled by a profit-driven congolmerate is bound to offer cheaply made, shocking entertainment for the sake of increasing viewership and making a spectacle of itself."
She suggested the FCC consider the connection between consolidation and content when it starts to review ownership rules later this month, and put in a plug for reinstituting the fairness doctrine.
Supporting the bill was Greg Walden (R-Ore.), who owns radio stations in Oregon. But Walden said he was also concerned by the FCC's March 15 package of proposed indecency fines, which he said had not done anything to clarify indecency enforcement, but instead left him and his broadcast colleagues "a bit confused."
He pointed out that the FCC, in an earlier ruling, had found certain words, "which we would find very offensive," could be used in Saving Private Ryan, while words "we would perhaps find less offensive could not be used in an episode of NYPD Blue.
He suggested Congress needed to prod the FCC into providing clearer guidance to broadcasters, saying for some smaller-market broadcasters even the present $32,500 could bankrupt them. "Not all broadcasters are part of conglomerates," he said. "Some are small mom and pop operations in small-town America."
"Given the ten-fold increase in fines that this legislation authorizes, I think it's exceedingly important that broadcast licensees have a clear understanding of the rules," Walden said.
He asked the speaker to "lend his good office to encourage the FCC to achieve clarification in these areas."
Upton said he would work toward clarifying those rules as well. "It is very important that broadcasters know precisely what they are."
Walden also warned viewers that cable and satellite were not affected by the bill, so they should not expect their TV and radio waves to be immediately "cleaned up."
Broadcasters have increasingly argued that if they are going to continue to be regulated for indecency, then cable and satellite should be also since many viewers don't discriminate between over-the-air and over-the-wire, a point Walden also made.
He pointed out, without naming him, that Howard Stern, one of the principal targets of indecency fines, had since moved to satellite radio where he could operate "unfettered."
Upton reminded the relatively empty chamber and C-SPAN viewers that the initial bill predated the Janet Jackson reveal, and that it had had bipartisan support from the start.
He said he had been prompted to craft legislation boosting fines after reading transcripts of FCC complaints, including the infamous "sex in St. Patrick's Cathedral" stunt.
Upton also referred to the recent proposed FCC fine against CBS's Without A Trace. He described the episode as teens graphically shown in various stages of undress in the midst of an orgy and said there was no room for that on the public airwaves at times when children are likely to be in the audience.
Upton invoked big media in explaining the need for dramatically boosted fines, quoting former FCC Chairman Michael Powell's observation that the current FCC fines were "peanuts" and merely the cost of business, something Powell said had to change, he added. It is about to.
Upton said he would have preferred the House version, Which he motormanned and that included upping fines on performers and bringing a station's license into play, but that the Congress "needs to get it done."
Ed Markey (D-Mass.) a co-sponsor with Upton of that original indecency bill back in 2003, pointed out that the bill only raises fines and does not change the definition of indecency, which he said remained the province of the FCC and the courts to decide.
Markey could not be reached at press time, but in speaking in support of the bill, he said that it also "establishes proceduresfor considering broadcast license awards, renewal or revocation when repeated violations are found."
That was an element of the House bill, but not of S.193, which was intentionally kept free of that and a performer fine boost to win support, or at least grudging concession, from key constituencies including unions and broadcasters.
Either something has changed or Markey mispoke.