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Pols Push Raw Law for Potty Mouths

There were plenty of f-words flying around Washington last week—FCC fines, a task force, and letters to the four
major networks—as legislators turned up the heat on the regulators, broadcasters and even cable over indecency.

On the eve of last week's House Telecommunications Subcommittee hearing on FCC indecency enforcement, there was action, too:

  • The FCC hit Clear Channel with its largest proposed fine ever.
  • Clear Channel countered with its own proposal for industry self-regulation that drew some congressional interest.
  • The White House weighed in on the side of even bigger fines.
  • The networks were asked to explain their indecency stands to Congress.
  • The Senate Commerce committee scheduled its own indecency hearing.

No doubt about it, it's an election year. As one broadcast industry veteran noted, "nobody ever lost votes talking about indecency." Recent raw talk on live TV awards shows by rock artist Bono and pampered socialite Nicole Richie spurred the current flap.

For what they can't say, broadcasters should get ready to pay $275,000 per @#$%$* and up to $3,000,000 per incident under a bill introduced by subcommittee Chairman Fred Upton (R-Mich.) two weeks ago. That's 10 times more than the current penalty. Rep. Ed Markey (D-Mass.), a bill co-sponsor, even suggested during Upton's indecency hearing that those figures might go up before the bill is done or that fines might be tied to revenues or number of stations instead of being a flat figure.

The Upton bill is expected to pass. No Washington policymakers were standing in its way last week, while plenty of people are lined up behind it, including virtually the entire committee, FCC Chairman Michael Powell, the Bush administration, and even the only the broadcaster at the hearing. "It will get passed and signed," said Illinois Republican John Shimkus.

Cable did not escape criticism at the hearing, although it will probably escape legislation. Rep. Greg Walden (R-Ore.), a radio-station owner, said Upton's bill was like holding up a doorway while the house is crumbling around you. The bill "takes care of the first six channels," he said, "but what about the other 400?" A couple of members appeared receptive to the idea of including cable in an industry conduct code.

There will probably be a second hearing. Rep. John Dingell (D-Mich.) is expected to ask the networks and FCC commissioners to appear. He has already sent letters to the four major networks asking them to explain their positions on indecency by Feb. 3. The Senate Commerce Committee will also hold an indecency hearing Feb. 11.

Upton used his hearing to unveil a letter from Commerce Secretary Donald Evans pledging his "strong support" for the boosted fines and urging Congress to make sure the FCC would consider the maximum penalty for indecency in children's shows.

The FCC proposed fining Clear Channel $755,000, which works out to the $27,500 maximum times 26 instances, plus an extra $40,000 for some reporting omissions. The fine was levied for various routines on the Bubba the Love Sponge
program, including a parody with cartoon characters talking about sex and a breast-implant–surgery contest. Clear Channel responded by suggesting an industry self-policing effort.

Last October, the FCC fined Infinity Radio's Opie & Anthony Show
for broadcasting live coverage of a couple having sex at St. Patrick's Cathedral.

"We believe the time has come for every sector of the media to join together and develop consistent standards that are in tune with local community values," said Clear Channel President Mark Mays.

During Upton's hearing, Dingell questioned the timing of the FCC fines the night before, saying, "Fear is a useful motivator."

The FCC also fined Young Broadcasting's KRON-TV San Francisco $27,500 for a local-morning-show interview with stage troupe Puppetry of the Penis in which one of the "puppets" was inadvertently exposed.

KRON-TV General Manager Dino Dinovitz said the station was sorry, has taken steps to prevent a repeat performance, and intends to pay the fine.

The FCC commissioners were absent (they were at a hearing on localism in San Antonio), but the FCC was represented by the Solomon of tough indecency decisions, FCC Enforcement Bureau Chief David Solomon. His bureau's hair-splitting—that was Commerce Chairman Billy Tauzin's phrase—on the f-word as adjective (or interjection) vs. verb came in for heavy criticism from many on the panel. Upton labeled an "outrage" the FCC's decision that U2 singer Bono's use of the f-word in an NBC Golden Globes telecast last year was deemed not indecent, because he wasn't talking about the act but merely using the profanity as a punchy adjective. Solomon told the committee that the bureau was considering Powell's request that it reverse the Bono ruling.

That decision and the one not yet rendered on Nicole Richie's use of the f-word during Fox's January broadcast of the Billboard Awards
were hot topics during the hearing. The time was about equally divided between slamming the FCC for its level of indecency enforcement—too little, legislators said—and criticizing broadcasters for their "race to the bottom."

Fox and NBC were praised for their recent decisions to add delays to their live entertainment broadcasts. Given that the FCC last week also fined a morning news broadcast, though, broadcasters may start watching out for what newsmakers, including politicians, say, an issue that troubles witness and First Amendment lawyer Robert Corn-Revere.

The most popular anti-indecency proposal at the hearing, in addition to boosting the fines, appeared to be self-regulation, specifically an industrywide code of conduct similar to the old NAB code, which was thrown out in 1982 on antitrust grounds. William Wertz, owner of four radio stations in Kalamazoo, Mich. (in Upton's district), said he supports such a move, as well as the increased fines and even permits for on-air personalities. "I don't like fines," he said, "but I also don't like what's happening in the industry." The NAB had no comment on the fines or potential code.

Cable networks, not bound by FCC oversight, would almost certainly fight a code, although few in the cable industry would talk about the issue last week. Still from the likes of Comedy Central's South Park
to FX's The Shield
and more than a few MTV shows, cable nets often play it faster and looser than broadcast. In a 2002 episode of the adult cartoon South Park,
the characters uttered "shit" 162 times, sparking an outcry from the Parents Television Council. Of course, cable argues that viewers subscribe to their service—the ultimate endorsement of the content.

The National Cable & Telecommunications Association turned the controversy upside down by pointing out all of its family-friendly fare. "Cable is a leader in creating children's and family-oriented networks and strongly supports the V-chip and program ratings," said a spokesman, adding that operators offer parents' controls for managing channels and programs.