Smut Bill Passes House - Broadcasting & Cable

Smut Bill Passes House

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The House overwhelmingly passed the indecency-enforcement bill Wednesday 389-38, although there were a few more nay votes than last session, when a similar bill passed 391-22.

Among the switches were Henry Waxman (D-Calif.) and Barney Frank (D-N.J.), who both bemoaned a rise in censorship they associated with the post-Janet Jackson indecency crackdown.

The bill, strikingly similar to the previous version, ups the maximum indecency fines for stations and performers from $32,500 and $11,000, respectively, to $500,000. It also toughens enforcement by requiring the FCC to act more swiftly on complaints and makes one indecency fine a factor in license renewals and three an automatic trigger for a license revocation hearing.

The $500,000 is a maximum, and the bill also allows the FCC to take into account various factors in deciding on a fine amount, including ability to pay, size of market, or whether the broadcaster had or should have had knowledge of the violation or had any control over it.
That addition addressed the concerns by some members, including broadcast station owners, that the fine would be onerous on smaller broadcasters and that stations do not have control over some of the shows delivered to them by their networks.

A last-minute manager's amendment was meant to take some sting out of the fines for performers and assuage concerned performers and unions.

That amendment would:

  • Clarify that a performer's liability would be for "willful and intentional" indecency, not, say, for a performance that was later played on the air. Mary Bono (R-Calif.), widow of singer and former Congressman Sony Bono, was instrumental in adding that provision, as well as one looking at a performer's ability to pay. One complaint is that a $500,000 fine would have a much different effect on a small-market DJ than, say, Janet Jackson.
  • Require the GAO and FCC to look back at indecency enforcement starting in 2000 when making their respective reports to Congress on the state of that enforcement.
  • Have the FCC Update its indecency guidelines every three years.A Senate indecency enforcement bill has been introduced by Senator Sam Brownback (R-Kan.). It has not made it to committee yet, but Sen. Ted Stevens, (R-Alaska), chairman of the Senate Commerce Committee has vowed there will be no repeat of last-year's hold-up of indecency legislation.
    The Brownback bill is essentially clean, simply upping the $32,500 maximum to 10 times that, or $325,000. If it passes, the House and Senate bills would have to be reconciled in committee, or the Senate bill could essentially be dropped in favor of the other, as happened last session, though Upton's bill was then loaded with amendments that effectively killed it.
    House Democrats tried to add similar amendments to Wednesday's bill--rolling back media consolidation, reimposing the fairness doctrine--but the Republican majority used a procedural blocking maneuver, holding that the amendments were not germane.
    A vote to overturn that decision and allow for debate on consolidation and media bias was defeated.
    NBC was on the record Wednesday opposing the bill, saying in a statement: "Given the current vagueness and inconsistency of the FCC’s standards, this bill will indiscriminately threaten a wide variety of programming. Government cannot and should not decide what Americans can see on television. Threatening to impose huge fines on an athlete, entertainer, or any individual being interviewed, for an isolated, emotional outburst or for graphic artistic material such as that in Saving Private Ryan raises very serious constitutional and free speech issues.
    "This approach of increased government regulation and censorship is fundamentally misguided."

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