Broadcast-Decency Bill: Pro or Con?

After months of passionate debate, passage of the Broadcast Decency Enforcement Act turns up the heat on the nation's broadcasters, who had hoped to avoid fines that they say are unfair and outdated. A champion of the bill, House Telecommunications Chairman Fred Upton (R-Mich.) says broadcasters brought the law and its tenfold increases in fines upon themselves. He points out it was former FCC chief Michael Powell who launched the Congressional push for boosting indecency fines, aided by Janet Jackson's Super Bowl number and FCC complaints that simply disgusted him. On the eve of the signing, Upton talked to B&C's John Eggerton about the new law, its effect, and whether cable and satellite should be covering their heads. And few broadcasters understand what's at stake for station owners more than LIN TV Corp. President/CEO Gary Chapman. As co-chairman of the NAB's Decency in Programming Task Force, he has been at the forefront of broadcasters' indecency fight. After 18 years at LIN TV, now the 20th-largest station group, Chapman plans to retire July 10. He spoke to B&C's Allison Romano about how much the new law stings and how stations can protect themselves.

Now that the indecency fines have been boosted tenfold, what do you hope is the result?

Fred Upton: From the day that we introduced the bill and the hearings and the likelihood that this was going to move along to become law, the industry has changed its MO. They are much more cognizant of the rules and potential penalties, and they have made necessary adjustments to being flagged in the future. That means different contracts with personnel, delays on live events and a greater awareness of their responsibility, particularly for the few who are racing to the bottom.

What is the impact of raising the fines?

Upton: [The bill] gives the FCC the hammer and the baseball bat that they wanted to have. This legislation was prompted by discussions I had with [then FCC Chairman] Michael Powell in January 2004 when he asked for the authority to raise the fines tenfold.

You have said that you now want the FCC to come up with a clearer definition of what is and isn't indecent.

Upton: Broadcasters really do fear these penalties and want to make sure that they operate within the confines of the law.

I intend to have a roundtable discussion with members of the subcommittee and some of the commissioners to better define the parameters that the broadcasters operate under, or should operate under. I hope to do that next month. It could be a constructive discussion, and we'll see whether it prompts any further action.

But given the boosted penalties and unclear fines, wouldn't it be better for the FCC to suspend the process until they come up with a better definition?

Upton: Well, I think we'll have a give-and-take discussion and we'll see where things take us.

Do you see yourself taking on cable and satellite?

Upton: No, I don't. I'm not a lawyer, but I understand what the courts have said and do not believe we have a lot of legs to stand on if we pursue that course. If we did, it would be knocked out very early.

You say broadcasters have changed their ways to some degree. But they have also said, “See you in court.”

Upton: The Playboy decision affirmed the [indecency] standards, which is why we were very careful not to change those standards. We simply raised the fines. They are obviously able to go after an individual fine and make that case.

Once you have a V-chip in every set, shouldn't broadcasters be equally free of content regs as cable?

Upton: If it's used. I was one of those that supported the V-chip, and I was one that today went after the videogame industry for its failure to enforce standards that parents expect them to. [He plans to draft a bill that would allow the FTC to boost fines for sexual content in video­games.]

Well, I've got a color TV, and it works just fine. I watched it this morning. It is 30-plus years old. It doesn't have a V-chip.

The increased fines are obviously a huge blow to broadcasters. What else troubles you about the new law?

Gary Chapman: The fines are over the top. But another problem is that all stations will be treated the same. So the most profitable station in New York City would be treated the same as an AM radio station in Carbondale, Ill. Believe me, they don't have the same balance sheet.

For a small broadcaster, television and radio, this could be the death star simply because they don't have the resources to pay these kinds of fines. For a lot of small-market stations, that might be their profit for the year. How does this work?

Are all TV owners going to have to screen all network programs before they air? We will take responsibility for our own air, absolutely, and we should. However, when we get into network programming, we may not have seen it and it may not have been available to the licensee, or it could be a live program. For us to receive a fine in that instance is just patently wrong.

So what can stations do to protect themselves?

Chapman: We need to explain the situation better to the people that would impose the fines. The FCC is mandated by Congress to implement it. But there have to be some guidelines, some understanding of what we control and would be responsible for and what the networks control. If not, we're going to have to go to a process where the licensee actually has to screen these programs before they go to air, and that would be very difficult. But if you're looking at a $325,000 fine, you may have to. Right now, however, the networks are not really equipped to do that, either, simply because of the timing of productions and airings.

What changes have you made internally to put up a better indecency defense?

Chapman: We have equipped all stations with capacity to block out live programming. Case in point: If you are televising a parade and you have a streaker in the parade, there are red buttons in the master control and they can simply delay the parade. You hit the button and it freezes out the streaker. We've used it a few times.

We also need to make people aware of the law. Training is an important element. They have to be very sensitive and aware of potential problems. We have the emergency-interrupt buttons, but they need good enough judgment.

How do you respond to critics that say the broadcast industry didn't fight back hard enough?

Chapman: I am the co-chair of the Decency in Programming task force. As an industry, we have done a lot of work on this issue. Maybe we haven't presented it to the entire industry, but at the NAB, we have big companies, small companies, networks and radio stations on a task force studying the issue.

We pursued the V-Chip solution and put a lot of money and publicity into it. Maybe we weren't forceful enough. Obviously, Congress didn't think so. Unfortunately, our vote doesn't count.