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The Big Chill Becomes Law

Beaming legislators, all five FCC commissioners, and representatives of the Parents Television Council (PTC) and the American Family Association (AFA) flanked President Bush as he signed the Broadcast Decency Enforcement Act into law last week. That picture spoke a thousand words to us, most of them unprintable.

This law is so unnecessary. Even Michigan Republican Rep. Fred Upton, who started this indecency crusade even before the 2004 Super Bowl, pointed out last week that just the threat of this and worse had already made broadcasters change their ways. That includes delaying “live” broadcasts and nervously changing internal procedures. Vigilantes can now claim victory at PBS, which last week issued guidelines to producers, asking them henceforth to pixelate the mouths of speakers whose language might be suspect—and that's in addition to editing or bleeping the offensive words.

Janet Jackson became the poster breast for bad actors. But it was former Chairman Michael Powell who first called on Congress to raise the fines tenfold. And it was the smiling FCC Chairman Kevin Martin who last week welcomed receiving his bigger “baseball bat.”

Now what? If there is a silver lining, it is that the punishment can be so overwhelming that broadcasters will be screaming at the FCC to issue better ground rules about what is actually indecent. Upton pledged last week to arm-twist the FCC to create clearer guidelines. The commission's have been consistently inconsistent.

Good broadcasters will continue to fight. Last week, 95 CBS affiliates argued that, because there “were no true complaints from actual viewers,” the FCC should rescind a proposed fine against them for airing an episode of Without a Trace that the commission said contained an indecent teen orgy scene. The FCC had suggested there was a massive outcry from viewers. In fact, those 95 stations logged a total of 17 complaining phone calls, not even one of them before at least two weeks had passed.

The entire uproar came from the AFA and PTC, which cajoled their Website visitors to complain to the FCC. (Incidentally, as of last week, you could still view the Without a Trace segment on the PTC Website, which seems exploitative given that the FCC ruled three months ago.)

As we argued before, the FCC should require complainants to swear in an affidavit that they viewed the show they find offensive when it aired on a TV station. That would allow the FCC to decide cases on rules, not in reaction to Web-mob pressure. We also believe it would expose the indecency crusade for the sham it truly is.