Senate Bill Snares Cable On Violent Programming3/14/2004 7:00 PM Eastern
Cable operators face big fines for telecasting violent programming under a bill that passed a Senate committee last week, as Congress continued its crackdown on trash TV in response to family outrage over Janet Jackson's breast exposure during CBS's national telecast of the Super Bowl halftime show.
The Senate Commerce Committee passed the bill (S. 2056) unanimously last Tuesday, two days before the House gave overwhelming approval to a narrower version (H.R. 3717) that could cost a TV or radio station a maximum $500,000 for each violation of indecency regulations enforced by the Federal Communication Commission.
The House and Senate bills both contain quick triggers for when the FCC must consider revoking licenses of repeat offenders evidently undeterred by fines.
And both bills put on-air performers on notice that profane utterances broadcast at the wrong time could hit also them in the pocketbook.
Fines are presently capped at $27,500 per offense, but Congress decided to jack them up after FCC chairman Michael Powell complained the fines were trivial petty cash to media conglomerates nailed for violating agency indecency rules.
The cable violence provision was sponsored by Sen. Fritz Hollings (D-S.C.) and added by voice vote to the Senate bill that raised FCC indecency fines.
Hollings began offering the provision several years ago, but never managed to enact it. Now, he's hoping his assault on TV violence can ride the coattails of indecency legislation that Congress and the White House want to pass in an election year.
For cable, it could have been worse. Both Hollings and Sen. John McCain (R-Ariz.) intended to offer amendments requiring cable operators to offer every channel à la carte.
BREAUX'S 85% PLAN
Either because they lacked support — or feared loading down the indecency bill with extraneous matters — Hollings and McCain decided to pull their amendments, much to the relief of cable's large lobbying contingent present in the audience.
There was one more near miss.
Sen. John Breaux (D-La.), attempting to create regulatory parity with broadcasters, wanted to allow the FCC to enforce indecency rules against expanded basic-cable programming until such time as 85% of homes with children used blocking technology or had told their cable company they didn't want it.
Breaux said his amendment was fair because broadcasters and cable both use the public spectrum, albeit in different ways.
"Cable uses the public airwaves to get the content to the cable companies," Breaux said. "It should be the same standard for at least the expanded-basic programming."
The FCC is not authorized to police cable indecency, as courts have ruled that cable is different from broadcasting because the former is available by subscription and subject to technological interdiction, while the latter is free and unfiltered.
Some senators pointed this out to Breaux.
Despite support from committee chairman McCain, Breaux's amendment lost in a 12-11 vote.
Hollings's violence amendment would apply to cable, broadcast and direct-broadcast satellite, but not the Internet. News and sports programming, plus pay-per-view and premium channels like Showtime and Home Box Office, would be exempt.
A few issues would need to be resolved before the FCC could go after cable for violent programming outside the so-called "safe harbor," the eight-hour timeslot after 10 p.m. when children are not expected to comprise a substantial portion of the viewing audience.
As a threshold matter, the FCC would have to establish that blocking technology was an insufficient tool to "protect children from the harm of violent video programming."
If the agency established that, it could ban violent cable programming for two-thirds of the broadcast. The FCC would need to define "violent video programming" and the definition, according to the bill, "may include matter that is excessive or gratuitous violence."
Fines for violating the FCC's violence regulations would track with the new indecency fines, and the money can pile up quickly: $275,000 for the first violation, $375,000 for second and $500,000 for the third and beyond — all under the $3 million per-day cap. In egregious cases, the FCC may double all fines but the single-day cap.
In comments to reporters, Powell expressed concern that asking the FCC to regulate cable violence could hamper the effort to pass higher indecency fines. The Senate could skirt the issue by taking up the House bill, which did not contain a violence provision.
TRADE GROUPS QUIET
After the Super Bowl, the political climate in Washington, D.C., is such that normally combative trade groups are not trumpeting their opposition to the crackdown on the electronic media.
For example, the National Cable & Telecommunications Association issued a statement against the Hollings violence amendment only after a reporter asked for one.
The National Association of Broadcasters, whose radio and TV members are really in Congress' crosshairs, would not comment on the Senate bill, referring a reporter to a week-old statement about the House bill.
The NCTA reiterated its view that cable should be exempt from content regulation because of its blocking capabilities. Content restrictions that fail to credit blocking, the trade group added, raised "serious constitutional questions."