No Break in Washington Heat

On content control, broadcasters and advertisers can expect a cruel summer

Broadcasters and marketers can forget any hope of enjoying a summer vacation from their Washington worries. Despite a recent court victory over the FCC's indecency crackdown and an industry effort to take the government heat off the issue of childhood obesity and food marketing, last week brought a flurry of activity on the content-control front—including a new twist on the matter of broadcast violence: hate crimes.

The Senate Commerce Committee began by resetting the date for its delayed TV-violence hearing. Initially scheduled for May 17, when programming executives were in the middle of upfront presentations to advertisers, the hearing is now set for June 26.

Witnesses teed up to talk about violence include FCC Chairman Kevin Martin, Fox Entertainment President Peter Liguori, Parents Television Council President Tim Winter and First Amendment lawyer Lawrence Tribe, who was hired by the major trade associations to be the point man on content issues.

House Telecommunications & Internet Subcommittee Chairman Ed Markey (D-Mass.) was busy on the media- oversight front last week. In letters he sent to five major food advertisers—including Pepsi, Coke and McDonald's—Markey urged the companies to adopt the same restrictions on kid-targeted ads that Kellogg had adopted to avoid a lawsuit from consumer and children's activists.

Even as a joint industry/government obesity task force is working to meet a self-imposed mid-July deadline for recommendations to Congress, Markey is holding hearings on food marketing and also wrote to FCC chief Martin suggesting that the commission may have to regulate food ads anyway. Martin has said that he would agree if the task force remedies aren't sufficient.

Revisiting over-the-air hate

Markey also sent a letter to the National Telecommunications & Information Administration (NTIA) asking it to update a 1992 report on the use of telecommunications to promote hate crimes.

According to a copy from the NTIA archives, the study found only a “few instances” in the previous 10 years in which broadcast facilities had been used to “spread hate and bigotry” and saw “little empirical evidence” of a causal relationship between broadcast “hate speech” and hate-related violence.

While there is cause for concern, the report said, “the best remedy to hate speech is not government restrictions but more speech, to disseminate views that challenge notions of hate and bigotry.”

Markey and House Energy & Commerce Committee Chairman John Dingell (D-Mich.) cited the Internet as one reason to reevaluate the role of telecommunications and hinted that the post-1992 rise of another medium warranted closer examination.

Noting that the committee “does not wish to erode First Amendment protections or to infringe upon the fundamental liberty of any citizen,” they stated their intention to examine “current uses of telecommunications media, particularly uses by broadcast facilities licensed on behalf of the public by the Federal Communications Commission, and whether such uses convey messages of bigotry or hatred, creating a climate of fear and inciting individuals to commit hate crimes.”

Although Democrats have long been critical of conservative talk radio, with some calling it a form of hate speech, a source in Markey's office said the request was general, not targeted.

But some religious broadcasters are concerned that a new hate-crimes bill— which passed the House last month and would allow law enforcement to prosecute speech that led directly to bodily injury—is too broad and could prevent ministers from speaking out against homosexuality from the broadcast pulpit.

“This is exactly the fallout we had predicted here at NRB as a result of the surge toward hate-crimes legislation,” said National Religious Broadcasters General Counsel Craig Parshall, referring to the Markey/Dingell letter.

FCC weighs appeal options

On the indecency front, it looks likely that the FCC will appeal to the Supreme Court last month's decision by a federal appeals court, which threw out the commission's profanity rulings.

Given the narrowness of the decision and the chances that the high court would only kick the case back to the lower court, it might be tough to sell the Justice Department on an appeal.

The FCC could still seek review before the full appeals court since the decision was issued by a three-judge panel. But several attorneys familiar with such challenges say that a so-called “en banc” appeal is unlikely. The three-judge decision was only 2-1; an appeal to the full court could produce a more lopsided loss.

Martin all but ruled out coming back to the appeals court with better justification for its profanity policy, given the court's skepticism that any such justification is possible. “Trying to go back and do another decision makes it less attractive,” he told reporters. “It makes it seem like the more logical route would be appeal.”