Rockefeller Adds On 'Indecency’
Senator: Pay TV Oversight Should Be In Telecom Bill
By Ted Hearn -- Multichannel News, 3/5/2006 7:00:00 PM
Washington — Washington— Sen. John D. (Jay) Rockefeller (D-W. Va.) said he wants to include in pending telecommunications-reform legislation proposals to authorize, for the first time in pay TV history, federal regulation of cable and satellite TV providers for indecent and excessively violent content.
Senate Commerce Committee chairman Ted Stevens (R-Alaska) is expected to unveil a telecom bill in a few weeks and seek committee approval soon thereafter, a timetable that makes Rockefeller’s effort a near-term political threat to cable.
“Sen. Rockefeller will offer his bill in its totality or section by section, as a series of amendments, as we move forward on this issue,” James Reid, Rockefeller’s Commerce panel aide, said last Monday. “I think you can fully expect the Commerce Committee sometime in 2006 to vote on bringing in cable and satellite into the indecency regime [and] addressing television violence.”
| Regulating Pay-TV Content |
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| Key proposal points: |
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Source: S. 616 bill |
| • The FCC would be required to report to Congress within 60 days whether ratings and blocking technologies are shielding broadcast and cable homes from indecent and violent programming. |
| • If the FCC finds they are ineffective, the agency would have 270 days to ban violent programming on broadcast TV, probably from 6 a.m. to 10 p.m., the same hours the FCC bans indecent broadcast programming. |
| • The FCC, again within 270 days, also would be required “to adopt measures” to protect children in cable homes from violent and indecent programming. |
| • Although the law would exempt premium and pay-per-view cable programming, it gives the FCC discretion to exempt other programming, such as news and sports. |
| • The FCC would be required to define “gratuitous and excessively violent video programming.” |
ORIGINAL SPONSORS
Speaking on a congressional staff panel here to hundreds of state representatives of the National Association of Broadcasters, Reid noted that Rockefeller introduced his bill (S-616) last March. Sen. Kay Bailey Hutchison (R-Texas), also a Commerce panel member, is his lead co-sponsor.
Since the bill’s introduction, cable has launched a massive consumer-awareness campaign regarding the blocking technology available in digital set-top boxes. Late last year, Comcast Corp. and Time Warner, the two largest cable companies, agreed to offer programming tiers that include only family friendly programming, hoping to defuse the a la carte issue and win Federal Communications Commission approval of their takeover of Adelphia Communications Corp.
Rockefeller is unwilling to accept industry self-regulation at face value. Under his bill, the FCC would have 60 days to determine whether TV program ratings and blocking technology are protecting children from “indecent video programming, or gratuitous and excessively violent video programming.”
If the FCC finds that these safeguards are failing, it would have 270 days to “adopt measures” that would solve the problem.
“The FCC could very well determine that these measures are sufficient and that no regulation is needed,” Reid said. “But rather than rely continually on the industry sort of self-policing on this issue, [Rockefeller] would rather see the expert agency make a decision about [whether] blocking technologies are sufficient, are easy enough to use [and] whether the labeling is clear enough.”
Under pre-existing authority, the FCC bans broadcast TV indecency from 6 a.m. to 10 p.m. everyday. The agency considers indecent “material … that depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium.”
Under the Rockefeller-Hutchison bill, the FCC, in an expansion of its authority, would be required to ban “gratuitous and excessively violent video programming” on broadcast TV, not just “adopt measures,” as it would in the cable context.
Although S. 616 would directly exempt, for example, Time Warner Inc.’s Home Box Office and programming sold on a per-channel or per-program basis, it would give the FCC power to craft other exemptions, such as for news and sports.
FCC regulation of violent and indecent cable programming would face a “major” hurdle in federal court, according to John Crigler, a First Amendment attorney with Garvey Schubert Barer in Washington, D.C.
TV indecency regulation, he said, is premised on the basis that over-the-air signals invade the home as “intruders,” with the courts employing a “trespass theory” to uphold the FCC’s power to police the airwaves for two-thirds of the day.
But that “theory does not work for cable or satellite because those are invited into the home — you have to subscribe, you have to ask for it,” Crigler added.
STAFFER WON’T PREDICT
Lisa Sutherland, Commerce Committee staff director, said she was unsure whether Rockefeller-Hutchison would have majority support.
“We’ve been having some discussions over the past week, and I think it would be premature for me to say,” she said.
Inclusion of content-regulation provisions could make telecom reform even more controversial than it already is and could frustrate the effort by AT&T Inc. and Verizon Communications Inc. to win passage of a bill that removes local franchising requirements on new wireline entrants into cable.
It could get even more complicated. The NAB is hoping the Senate panel will add provisions dealing multicast must-carry, cable downconversion of digital-TV signals and broadcast-flag mandates.
“We are talking to them about multicasting,” said NAB president David Rehr.
