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Indecency Proposals Abound as D.C., Media Meet

The year 2004 may have to be christened, "The year of living cautiously.”

Three TV-network top executives and Clear Channel Communications Inc.'s president told Washington more of what it wanted to hear Thursday, outlining plans for greater indecency self-regulation and agreeing with proposed new laws restricting their content.
Cable was squarely in D.C.'s indecency sites as well

At the House Telecommunications' Subcommittee's third hearing on the topic, legislators praised the time delays, talent firings, contract changes and other industry efforts since the last hearing, taking credit for lighting a fire under the industry.

Citing Infinity’s new zero tolerance policy, an obviously pleased Upton said: "They heard us loud and clear." Clear Channel President John Hogan seconded that: "We have changed our tune. We have heard you, the FCC and our listeners." That includes making all Clear Channel jocks pay a portion of any future fines, he said.

Following TV's lead, Clear Channel is working on a delay of up to five minutes, a first for radio, he said. Upton described it, approvingly as "censoring on the fly."

Clear Channel's yanking of Howard Stern off six stations and its firing of WXTB-FM Tampa’s Bubba the Love Sponge came in for particular praise. "I'm happy to see the [Stern] show scrubbed," said Upton. One congressman pointed out that Infinity, which syndicates Stern, had not taken a similar step.

"Don't some CBS stations air Stern," Oregon Republican Greg Walden, a broadcaster himself, asked Hogan. Yes, Hogan replied. "We'll have to flag that," was Walden's ominous reply.

Not so happy last week was AFTRA, which released a statement accusing big media companies of letting shock jocks take the fall by making them liable for the fines "only levied because of management's programming decisions."

Also ominous was the line of questioning by Mississippi Republican Chip Pickering suggesting NBC drop its legal appeals on indecency to curry favor with the committee.

But not all the troubling talk came from the House side. John Hogan said that if the FCC starts including license revocations in indecency proceedings, it will be forced to stop paying fines without contesting the allegation, "since we will have no choice but to protect our company's assets."

Hogan went further, though, suggesting that if it did contest the fines in court, it might win, in which case "the judiciary may weaken the ability of the FCC to protect the public. That's not an outcome that we want, and I'm sure it's not an outcome that Congress wants either."
His message was clearly a warning shot, but the First Amendment took a hit in the process.

Unlike the last hearing, CBS's Super Bowl incident was rarely mentioned. CBS wasn't represented, having shown up the last time. Instead, an increasing focus of attention from both legislators and broadcasters was cable and satellite.

"For most viewers, there is no meaningful difference between a broadcast station and a cable channel," said NBC's Research and Media Development President Alan Wurtzel.  "We feel an obligation to question the lack of regulatory parity that exists between us and basic cable channels in this regard, " seconded ABC President Alex Wallau.

A couple of congressman went so far as to warn that not to include cable and satellite in an indecency regimen would put broadcasters at a competitive disadvantage since the edgy programming would simply move to cable.

Pax TV Chairman Bud Paxson leveled the biggest artillery at cable and satellite, saying that they were delivering hundreds of hours of pornography daily and that the FCC should already be regulating them just as they do broadcasters. “How to fix this pervasive evil,” he asked, “Empower the FCC; enact legislation; have an amendment to the Constitution if necessary.”

NCTA spokesman Brian Dietz later responded: "The attempt by broadcasters to impose indecency regulations on cable is nothing more than an effort to divert attention from the issue, which is to prevent indecent content from appearing on over-the-air broadcast stations."

Paxson said that cable uses public satellite orbital positions licensed by the FCC and owned by the people. They could not operate without public spectrum, he said, and so the FCC already has the power to regulate them. If they got rid of the porn, says Paxson, there would be plenty of room for the digital multicast channels he wants cable to carry.

Dietz called Paxson's pitch nothing more than a "bad attempt" to hitch the digital must-carry issue to indecency.

Subcommittee Chairman Fred Upton and others have suggested that there are Constitutional problems with trying to apply indecency standards to cable and satellite, and Commerce Committee Chairman Joe Barton (R-Tex.) said yesterday it might have to be the subject of a different bill (Thursday's hearing was on Upton's bill to up indecency fines).

Addressing that concern, Paxson said that there was a law firm even now working on a legal underpinning for indecency regulation of cable and broadcast and that he would soon present it to the committee.

Broadcast group owner Harry Pappas said the FCC needs to reaffirm affiliates’ rights to reject programming, while Wallau countered that the network had never gotten an individual complaint about that process.

"We've complained," responded Pappas, saying that there was not enough lead time on shows like NYPD Blue. Gail Berman conceded that there was sometimes not much lead time for stations to make content decisions, particularly on reality shows, but said that the network had its own standards and that it was in daily contact with affiliates.

Other news out of the hearing included:

Berman told lawmakers yesterday that the network would undertake a V-chip/ratings full-court press including: A print ad campaign launching this week in The Washington Post, USA Today, and Newsweek; a boost in V-chip rating PSAs; a news special examining all sides of the indecency issue; making a show’s rating much more prominent, including it on and adding an audio warning.
ABC said it would add audio and start putting the TV rating before each commercial, rather than just at the beginning of the show. NBC said it would consider it both.

When asked whether she would encourage co-owned TV Guide to start adding the rating to its print listing, Berman pointed out that it was already on the Gemstar TV Guide on-screen guide and that print was not her purview..

More than one congressman at Thursday’s House indecency hearing raised the issue of getting print media to include the ratings with their TV listings.

NBC is adding an audio delay to its video delay for live entertainment programming and will up the rating on those shows.

All the networks agreed to increase their V-Chip PSAs and provide a written report of their progress.
Upton agreed to enter the National Affiliated Stations Alliance Petition into the record, per Harry Pappas’ request.

Wallau asked for equal time for the network responses. The petition charges the networks with strong-arm practices, a charge Pappas made yesterday as well.