Disney’s In Indecency Mix

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The Walt Disney Co. has quietly been lobbying Congress to apply broadcast indecency rules to cable programming, according to informed sources.

Were Congress to agree with Disney, basic and expanded-basic cable networks could be fined thousands of dollars by the Federal Communications Commission for airing four-letter words and steamy love scenes prior to 10 p.m.

Under a Senate bill pending floor action, cable networks, with certain exceptions for news, premium and pay-per-view fare, could face fines for airing violent movies and dramas before 10 p.m.

That legislation has been held up for weeks, not only because of the cable provisions but also because of provisions rolling back FCC media-ownership rules adopted in June 2003.

As a major media conglomerate, Disney has a foot in both the cable and broadcasting camps. It owns the ABC Television Network and 10 TV stations, as well as cable networks ESPN, Disney Channel and ABC Family, as well as a stake in Lifetime Television.

Last week, House Energy and Commerce Committee chairman Rep. Joe Barton (R-Texas) reiterated his support for applying broadcast indecency rules to cable programming.

“It’s not something we’re going to do right away, but it’s an issue that’s time has come, in my opinion,” Barton said in comments last Tuesday to the American Cable Association.

Barton went public with his predictions about cable-indecency regulation for the first time in April, at the National Association of Broadcasters’ convention in Las Vegas.

“I think we’re approaching the time where whatever we apply to the broadcasters in some way — voluntarily or involuntarily — is going to be applied to cable,” Barton told the ACA. “I know that causes some of you folks heartburn, and it probably should. But you deserve to hear the truth from the chairman of the committee.”

Because cable and satellite are viewed in more than 90% of U.S. homes, Barton said, “Most Americans don’t differentiate between over-the-air and cable or satellite.”

According to informed sources, Disney is backing cable indecency legislation while fighting proposals that would require cable operators to sell cable networks a la carte.

Many broadcasters think it’s unfair that they have to comply with FCC indecency rules while cable networks do not. That’s the view of the National Association of Broadcasters, but NAB has declined to support indecency regulation of cable.

The National Cable & Telecommunications Association — of which Disney is a member — is fighting both indecency and a la carte legislation. Disney is apparently supporting indecency legislation in an effort to drain momentum from a la carte, which some consider a potentially devastating blow to ESPN’s business model.

Ironically, Disney marched out of the NAB last year after a dispute with major network affiliates. The independent affiliates of ABC, CBS, NBC and Fox supported regulations capping at 35% the level of TV households that any station group could reach.

Disney disagreed and became the last of the Big Four to quit NAB over the national ownership rule. The cap, moved to 45% by the FCC, was cemented in law at 39% last fall by Congress.

Although Disney fought for less ownership regulation as an NAB member, today the company is roiling the waters at the NCTA by seeking more regulation of cable content.

The purpose of indecency regulation is to ban content considered inappropriate for children during hours when they are expected to be in the audience in large numbers.

Under FCC rules, that’s two-thirds of the broadcast day, 6 a.m. to 10 p.m. The eight-hour period when anything goes, from 10 p.m. to 6 a.m., is sometimes called the “safe harbor.”

The NCTA has argued that safe-harbor legislation would raise serious First Amendment issues and conflict with at least one Supreme Court ruling.

The trade group has pointed out that cable is a subscription service invited into the home and its programming can be filtered with blocking technology.

By contrast, broadcast stations offer programming free and unfiltered to anyone with a TV set connected to an off-air antenna.

In March, Sen. John Breaux (D-La.) offered an amendment in the Commerce Committee that would have applied broadcast indecency rules to basic and expanded-basic cable networks until such time as 85% of homes with children were using blocking technology or parents had told the cable company they didn’t want it. Breaux lost by one vote.

House legislation to raise FCC indecency fines to $500,000 per violation did not include cable indecency provisions.

At the FCC, Democratic Commissioner Michael Copps has said he would support regulating cable networks for indecency. In a potential Kerry administration, Copps might become FCC chairman and get the opportunity to realize his regulatory vision.

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