NCTA Makes Indecent Proposal

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The cable industry would agree to regulation of its most popular tiers of programming for indecency on the condition that any federal legislation governing its content for profanity or sexual behavior wouldn’t take effect until after the courts had ruled on its constitutionality.

The proposal, endorsed by the National Cable & Telecommunications Association’s leadership, could lead to the Federal Communications Commission policing the content of basic and expanded-basic channels for the first time in cable’s half-century of history.

Violators can currently only be fined $32,500 per offense. But, in February, the House passed a bill that would raise the maximum to $500,000.

Currently, the only media with its content monitored for indecency are radio and broadcast television, on the basic grounds that they employ public airspace.

Enforcement of indecency rules can get messy and expensive. Last September, the FCC fined CBS a total of $550,000 after it broadcast a brief glimpse of Janet Jackson’s breast at the end of a halftime program produced by MTV: Music Television.

How to deal with indecency in cable and broadcasting is the subject of an “open forum” being held by the Senate Commerce Committee Tuesday.

NCTA president Kyle McSlarrow -- who, industry executives said, is pushing the proposal that indecency regulation might conditionally be extended to basic-cable channels -- is scheduled to appear. Committee chairman Ted Stevens (R-Alaska), an outspoken critic of cable programming, has warned about possible regulation if sexual content on cable isn’t kept away from kids.

On Jan. 19, Stevens is holding a second indecency forum, an event that will kick off a series of hearings designed to lay the foundation for sweeping changes in telecommunications law. An overhaul could radically reshape competition between telephone, cable and other communication companies.

FCC regulations generally prohibit the use of excretory and sexual dialogue and images deemed patently offensive to a typical local community. The rules apply to programming broadcast from 6 a.m.-10 p.m. every day of the week. Violations can result in large fines and possible loss of license.

Viewer complaints typically trigger FCC enforcement, which can result in some rather arbitrary outcomes.

For business and political reasons, the NCTA concluded that allowing regulation on basic channels for indecency would be the least disruptive to the financial interests of cable system operators.

Alternatives include encouraging customers to buy programs a la carte or in small chunks of channels, such as family tiers. But those approaches break up programming into more types of fees. That could undermine the sale of expanded-basic services, which strikes at the heart of how cable programming is sold today.

The NCTA also wants to see the indecency fight come to a conclusion so that the industry can focus on larger telecommunications issues, such as whether cable networks should be neutral carriers of Internet services, how franchises to provide video programming in communities across the country should be awarded, who pays what into a fund for universal communication services, or whether Internet voice services should be regulated.

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