• House Raises Indecency Fines; Senate Mulls Issue, Too
  • March 9, 2005
  • Law Firm: Reed Smith LLP - Pittsburgh Office
  • The U.S. House of Representatives voted overwhelmingly to raise by more than tenfold the fines the Federal Communications Commission may issue for violations of its decency standards.

    Voting 389 to 38, the House passed the Broadcast Indecency Act of 2005, which would authorize fines of as much as $500,000 per act for broadcasters and individual performers. Currently, the FCC can fine radio and television broadcasters a maximum of $32,500 and performers $11,000.

    The House bill, sponsored by Rep. Fred Upton (R-Mich.), also mandates a license-revocation hearing after a broadcaster's third offense, and requires the FCC to process viewer and listener indecency complaints more quickly, in a 180-day timeframe.

    A companion bill in the Senate contains less onerous terms. The bill, sponsored by Sens. Joseph I. Lieberman (D-Conn.) and Sam Brownback (R.-Kan.), would raise maximum fines for indecent material to $325,000 per incident and would cap total fines at $3 million per day. The House version provides no such limitation.

    The White House is backing the House bill. If the Senate passes its version, the two bills would have to be converged in conference. This is the second try by lawmakers to respond to the public outcry following the exposure of Janet Jackson's breast at last year's Super Bowl half-time show. Both the House and Senate passed bills last year but the two failed to reach a compromise in committee.

    Federal law and FCC standards prohibit airing obscene material any time, and indecent content between 6 a.m. and 10 p.m., when children are likely to be watching and listening. Obscenity is defined as "patently offensive" sexual or excretory material lacking in "serious literary, artistic, political or scientific value." The standard is lower for indecent material, which contains other references to sex or excretions.

    Broadcasters have lobbied against bills to increase indecency fines, warning that such action will chill free speech; and they are calling for more guidance as to what constitutes indecent content.

    As the House bill passed, Congressman Upton offered his version of the standard that should be applied to daytime programming, stating that "[a] parent should not have to think twice about the content of public airwaves."

    Only two members of the House Energy and Commerce Committee, which sent the bill to the full House, voted against the bill. They are Reps. Henry Waxman (D-Calif.) and Jan Schakowsky (D-Ill.), both of whom express concern regarding government censorship.

    The FCC reported receiving 1.07 million indecency complaints in 2004 -- mostly from the Janet Jackson episode -- up from 111 such complaints in 2000. The agency does not have jurisdiction over cable and satellite programming.

    Why This Matters: An increase in the FCC's power to fine broadcasters likely will impact significantly the content advertisers may air on television and radio. The mere threat of raising such fines already has had an affect. Earlier this year, ABC apologized for airing a promo of the popular "Desperate Housewives" program before Monday Night Football, in which Nicollette Sheridan, taped from behind, dropped her towel, revealing her bare back. Before this year's Super Bowl, Fox declined to run an advertisement during the game for a holistic cold remedy that showed Andy Rooney's bare backside. During the big game, Fox pulled the second of two scheduled airings of a commercial by GoDaddy.com, which spoofed the current climate by portraying an actress in a tight tank top, whose strap breaks as she testifies before a censorship committee. Only time will tell if the FCC has decided to become a national nanny. Let's hope it has not.