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FCC Hammers Networks On Indecency Issues

Agency stands by decision on Billboard Awards, Super Bowl

By John Eggerton

It was a busy year-end for the FCC, as the commission sounded off on both Janet Jackson's Super Bowl exhibition on CBS and profanity uttered during the Billboard Awards on Fox.

The FCC ruled that it was reasonable to conclude that Jackson's display in 2004 violated indecency rules.

In its brief to the U.S. Court of Appeals for the Third Circuit regarding CBS' challenge of the commission's indecency ruling, the FCC argued that it was also reasonable to find that CBS' violation was willful and therefore its owned stations deserved to be fined (a total of $550,000). That's because Jackson and Justin Timberlake were effectively CBS employees, said the FCC, with CBS liable for their conduct.

As for the suggestion that the V-chip is a more narrowly tailored means of protecting children from indecent broadcasts, the commission said that the chip is not available on older sets, is "generally ineffective" because most people don't know they have it or how to use it if they do have it, and that that specific program had no V-chip rating because it was a sporting event, which are unrated.

The FCC also squared off against Fox, doing battle regarding past Billboard Awards broadcasts last Wednesday in a federal court. Arguing for Fox, attorney Carter Phillips essentially said that the FCC could not provide a reasoned analysis of its change in policy toward profanities because that policy was inherently unreasonable.

The bottom line, asked Judge Peter Hall, is that the FCC cannot regulate fleeting expletives? Yes, said Carter, though he said he did not have to prove that. He only needed to prove that the FCC did not justify regulating them in this case. As the judges made clear, they are not eager to reach to the constitutional question and will decide the case on as narrow grounds as possible.

Carter said the commission had two choices in its profanity policy. Either it could attempt to ban all expletives, or it could go back to its previous policy. Anything else, he said, "creates a censorial board with the commission picking and choosing what it likes and doesn't."

The FCC's case appeared to take its biggest hits from the judges' questions about whether its policy, in which the same words uttered by the same people were indecent in one context (entertainment) and not in another (news), makes it difficult for broadcasters to determine what might get them in trouble. Citing when the FCC took CBS' word that The Morning Show was a news show—and not entertainment—and subsequently reversed a finding against the show for profanity, the judges also questioned whether it was giving broadcasters a way out by simply classifying everything as news.

Could the Billboard Awards count as news, asked Judge Hall. Perhaps, said FCC attorney Eric Miller, who pointed out that the FCC has never found any language indecent where a news context was asserted.

But the FCC also got help from Judge Pierre Leval on drawing its distinction between news and entertainment. Calling the distinction a reasonable hypothesis, Leval said that people might be shocked to hear that a federal judge had said "fuck" during oral argument, but that the context of a case dealing with profanity would make it different than if the case were about something else. Leval also suggested that, in an era where there was so much unregulated content on cable and the Internet, the FCC was establishing a zone in which there was a relatively certain degree of freedom from what the government deemed indecent or profane.

Miller argued that the FCC had provided guidance on its policy through what it did and did not find indecent, saying the policy was instituted through a series of adjudications. Miller added that the FCC was not in the business of pre-screening shows or providing guidance through what would constitute prior restraint. But he did say that the FCC would likely not find coverage of the oral argument indecent­—in which swear words were used by judges and the Fox attorney and carried unexpurgated on C-SPAN—if it were picked up for the local news, including if the offending Billboard broadcasts were re-run as back story.

The court now has to weigh the arguments, with a decision expected in February or March.

KRNV Beats KREN To HD Punch

KRNV, the NBC affiliate in Reno, Nev., declared victory in the race to offer high-definition news in the 110th-largest market.

The Sunbelt Communications-owned station began broadcasting news in 1080-line interlace (1080i) HDTV with its noon newscast on Dec. 19, beating Pappas Telecasting's CW affiliate KREN, which postponed its HD news launch from Dec. 18 to Dec. 27 in order to work out some technical kinks.

KRNV now offers 3.5 hours of HD news each weekday and 1.5 hours daily on weekends. The station spent $4 million to convert its news operations to HD, which involved building a new set and replacing Sony Betacam SX cameras with Canon XL H1 HDV-format high-definition camcorders. The station aborted its initial HD news launch on Nov. 15 after having audio synchronization problems with the HD signal.

"Everything went very, very well," says News Director Jon Killoran of the second go-round. "We are now on the air, and expecting to stay on the air, in HD."

KREN successfully launched its own 1080i HD newscast on Dec. 27. The Pappas station's new 10 p.m. newscast, which runs weeknights, is the first news product from the CW affiliate and the first locally-produced 10 p.m. news in the market.

Besides a small glitch with the teleprompter that forced the anchors to read some scripts in hard copy, KREN "had no issues to speak of," says KREN chief engineer James Ocon. "We have a nice product on the air now."

Ocon adds that he is very impressed with the quality of the HD pictures produced by both stations compared to their standard-def competitors in Reno, one of a handful of markets to have multiple HD newscasts: "It's neat that a market like Reno has stepped up to the plate." —Glen Dickson

Fox To Put Bowl Championship Series Online

Fox Sports is making a strong online push to back its first year of airing college football's Bowl Championship Series, making full-length replays of all five games—including the national title game—available online on a pay-per-view basis via several different sites.

The initiative marks the first time Fox Sports has made downloadable content available via the Web.

The package will be available via Foxsports.com, Fox Interactive Media's direct2drive.com, Apple's iTunes, Amazon's Unbox, AOL Video, CinemaNow and Instant Media.

In addition to full-length replays, Fox will also offer condensed games (approximately 20 minutes each), preview shows and highlights.

Most full-length game replays will be available for download within 24 hours of the game's completion and will cost $2.99 apiece, while other programming will cost $1.99.

Users can pay $19.99 for an all-inclusive subscription.

Foxsports.com and direct2drive.com will also stream the January 1 Cotton Bowl live and free of charge, which Fox says is the first time a New Year's Day bowl game has been streamed live via the Web. —Ben Grossman

FCC Changes Channel Accounting

In its most recent cable pricing survey, the FCC dropped its per-channel accounting of cable rates.

That is the figure, often pointed to by the cable industry, that goes beyond the raw price increase to include the increasing number of channels that price covers.

The FCC had previously included that figure, but said it was dropping it because "operators do not permit consumers to purchase channels included in the expanded basic package on an individual basis."—John Eggerton

Vongo Boosts Musical Offerings

Starz Entertainment is expanding the array of music programming offered through Vongo, its subscription-based online video service, by signing a deal with Eagle Rock Entertainment for 38 full-length concert films.

The new concerts, which cover the classic rock, modern rock and R&B genres, began appearing on Vongo earlier this month and will be rolled out through the rest of this month and January 2007.

The concerts will be available to Vongo subscribers paying a $9.99 monthly fee that lets them download more than 1,000 movies and 2,300 total video selections and also watch the streaming Starz channel on their PC, laptop or Internet-capable mobile device. —Glen Dickson

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