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Barton: Cable’s Due For Indecency Rules

The cable industry can expect to be regulated under federal indecency rules sometime in the “foreseeable future,” House Energy and Commerce Committee chairman Joe Barton (R-Texas) said last Monday at the National Association of Broadcasters’ annual convention here.

Barton — a lawmaker with the clout to make or break such legislation — said current laws that fine TV and radio stations, but not cable operators, for indecent programming were unfair and would likely need to be expanded to include pay-TV providers.

“I am just saying that in the foreseeable future, you are going to see a convergence. I stand by that,” Barton told reporters here.


Asked to define foreseeable future, Barton said, “The next three or four years, probably.”

Broadcasters who are taking heat on indecency have argued that cable has an advantage because federal indecency rules apply just to TV and radio.

“Right now the cable broadcaster and the satellite broadcasters do not have to play by the same rules as you folks,” Barton said. “To me, in a functional sense, that is unfair.”


Cable should be covered because cable networks are as widely viewed as broadcast networks, Barton said.

“The impact [of indecency programming] is going to be the same in the home,” he said. “It’s irrelevant what the ownership or the origination of it is.”

Cable lobbyists and executives are making every effort to extinguish indecency fires that have raged on Capitol Hill since Janet Jackson exposed her breast during the Super Bowl halftime show on national television.

A day after Barton’s comments, Federal Communications Commission member Michael Copps said he supported extending broadcast indecency rules to cable. Those rules ban indecent programming for two-thirds of the broadcast day, from 6 a.m. to 10 p.m.

“I think it’s time for them to come under some oversight,” Copps said in comments to the National Association of Broadcasters’ convention here.

Under changes sought by Copps, if the Super Bowl halftime show had aired on ESPN instead of CBS, ESPN would be under FCC investigation and facing monetary fines.

Copps’s comments were notable mainly because if Sen. John Kerry (D-Mass.) is elected president, he might turn to Democrat Copps to lead the FCC on an interim or full-time basis.


Later, Copps said that he would support an FCC rulemaking on questions related to the constitutionality of applying broadcast indecency regulations to cable, in light of at least one Supreme Court ruling that government must meet a high legal burden in order to regulate pay-TV services.

Copps noted in his remarks that the Senate Commerce Committee recently defeated by one vote an amendment to a new indecency bill that would have included cable within the FCC’s indecency regime.

Sen. John Breaux (D-La.), a sponsor the of cable-indecency amendment, is not expected to offer it as an amendment when the bill reaches the Senate floor, said Bill Bailey, an aide to Senate Commerce Committee chairman John McCain (R-Ariz.).

But Bailey cautioned that another senator might take up the cause in Breaux’s place.

Based on the narrow defeat of the Breaux amendment, Copps predicted that indecency regulation “may very well be in [cable’s] long-term future.”

Other FCC members who appeared with Copps said they were unwilling to tackle cable indecency without a firm legislative mandate.

“That direction would have to come from Congress,” said Republican FCC member Kathleen Abernathy.

Democrat FCC member Jonathan Adelstein added, “I think we would be on much safer constitutional ground if Congress were to give us some clarification here.”


Cable’s boldest response to the indecency challenge was the offer to provide free channel-blocking technology to cable subscribers that don’t have a TV with a v-chip or a digital set-top box with blocking capabilities.

Barton said the reason he viewed cable indecency legislation as almost inevitable was that cable’s voluntary efforts would not work.

“Almost by definition, in my mind, those things aren’t designed to fail; they will fail,” Barton said. “I just don’t see those succeeding.”

The National Cable & Telecommunications Association said in a statement it believes “any regulation of cable content raises serious First Amendment objections and oppose efforts to impose regulation on cable programming. As the U.S. Supreme Court has found, the subscription nature of cable service, and the ability of cable customers to block unwanted programming through the use of tools offered by local cable systems, strongly differentiate cable from broadcasting, which is distributed free and unfiltered over the air.”

The NCTA also said cable “provides the widest choice of programming” appropriate for children and families.