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Not So Random Acts of Thinking

I'll admit that this was prompted, in part, by the fact that Fred Upton, the congressman from Michigan, kept an appointed interview with me this week at the end of an exhausting day of hearings and some 30 floor votes.

He could have easily deferred.He'sthe Chairman of the House Telecommunications Subcommittee and, well, I'm not.

Upton is the one who got the indecency bill ball rolling back in January 2004. That's right, January, before the Super Bowl.

I am a hard-liner on the indecency issue, anyone who has read the editorial page will know. With Republicans and Democracts voting overwhelmingly, almost unanimously, to raise the indecency fines 10 times and further chill broadcast content, with the FCC a bipartisan force for content regulation, I have to be.

As I see it, this is a tug of war. I have to start on the extreme end of my argument, which means the libertarian end, and pull as hard as I can. I don't expect to get my extreme position, of course, but if I don't start from that position, I have already conceded ground. As it is, I am hoping for my side of the middle.

But here is why I am not ready to make Fred Upton the postercongressman for what I consider a threatening march toward censorship.

A. He did not come up with the idea of boosting the fines. It was then-FCC Chairman Michael Powell, who, in a speech to the National Press Club, asked for 10 times the penalty for indecency violations saying the fine was no deterrant and simply the cost of doing business.

The way it works is that the Congress generally defers to the expertise of the regulatory agency. Not always, of course. For example, on multicast must-carry, Martin thinks the FCC was wrong the first two times and wants to require cable to carry all of a broadcaster's multicast signals, not just one. Upton disagrees and has told Martin so in no uncertain terms.

Anyway, Upton started the indecency fine boost going after POwell asked for it. The congressman did get a bit too enthusiastic about it, pushing for fines on performers and a bigger threat to station licenses. But that is because he believes TV should be more family-friendly according to his definition.

Byt contrast, I think TV is family-friendly by trying to appeal to all kinds of families, and that it must be free to test boundaries.

Legislators have been talking about preventing TV from pushing the envelope, but the result of that will be dumbed-down media reduced to the level of the sandbox. No, not even the sandbox since the playground vocabulary of my memory is stronger than the FCC allows.

But that comes to point B.

Upton was also disgusted by some transcripts from FCC complaints he was reading on a plane in advance of an indecency hearing that was, again, before Janet Jackson. As I recall, one of the was from the Deminsky & Doyle complains out of Detroit, his home state.

I will not recount them here, but they represent the closest I have ever come to not defending broadcasters' freedom to air speech that appalls me.

Remember, we tolerate that speech because others may not see it the same way and if we start censoring speech we dislike, it can easily translate to political speech we disagree with.

As I recall, I even wrote an editorial saying that Deminski & Doyle needed to be defended, on principle, by someone but, at least for that week, not by me be because I hadn't the stomach for it. (No wonder Upton was sheepish about retrieving the complaint documents after he accidently left them on the plane.)

I have been accused of being a child hater by French academics, no less, for my defense of speech, so for me to take a pass says something about the content, which combined sex and violence against women with just plain disgusting.

Anyway, given that Powell asked for the change in fines, current chairman Martin encouraged it, and Democrats and Republicans alike voted for it overwhelmingly, Upton is far from a fringe position, which is what troubles me.

Upton says he recognizes that cable and satellite are beyond the content control bounds of Washington, but there are others who keep talking like indecent speech is illegal.

The president, in signing the indecency bill, suggested his goal was no "indecent" speech at all on broadcast TV, though what "indecent" is, nobody seems to have any more clue about than they do about the definition of net neutrality.

If the goal is an all family-friendly airwaves per their definition, that will be a huge shift from the current regime, in which indecent speech is protected for at least eight of the 24 hours in a day. Let me repeat that. Indecent speech is protected. Right now, if broadcasters wanted to compete with cable after 10 p.m., they could put on uncensored Chris Rock concerts and X-rated movies. That's right. Anything short of obscenity, which is illegal, which means any of that protected content in the adult video stores could air legally on broadcast TV at 10 p.m.

We must be careful that the alliance, or at least alignment, of Martin and his policy adviser, anti-indecency activist Penny Nance, and fundamentally religious presidential hopeful Senator Sam Brownback, who was the other driving force behind the indecency bill, and the president, who claimed responsibility for the bill as well, with the acquiescence of Democrats, does not turn its attention to sponging away all speech that it does not agree with.

Be afraid. Be very afraid, but not, particularly, of Fred Upton who strikes me as a good guy trying to do what he things is right and I believe is wrong.

By John Eggerton