AMID POLITICAL PRESSURES, POWELL SEEKS REVERSAL ON INDECENCY
With thousands of parents and some members of Congress bearing down on him, FCC Chmn. Powell sent a draft proposal to his fellow commissioners that would reverse an earlier ruling on the use of the F-word on TV. The initial ruling by the FCC Enforcement Bureau last year came under withering criticism from a variety of quarters, most vocally from the Parents TV Council (PTC), because the decision essentially allowed the F-word’s use as long as it was as an adjective. Agency sources said Powell in all likelihood would receive unanimous support for the part of the draft that would deem it unacceptable for the F-word to be broadcast from 6 a.m. to 10 p.m., when children might be watching, and when the courts have said the agency’s indecency rules apply.
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Powell’s proposal could draw less support, however, on the part that would let the company in question, NBC, off without a fine, we were told. The draft proposal was on circulation among the commissioners’ offices Wed. and a final decision by the Commission as a whole was pending. Comr. Copps, who has been beating the drum for stricter enforcement on indecency for years, said he couldn’t comment on the item specifically. “But I've been pushing for strong action against indecency since I got here. I'll know this Commission is serious when it starts assessing meaningful fines and having truly filthy broadcasts lead to license revocation hearings,” Copps said.
Asked about broadcast indecency after a speech Wed. (see story this issue), Powell said FCC authority to fine stations wasn’t adequate and he planned to ask Congress for legislation authorizing the Commission to issue stiffer penalties against licensees airing indecent programming “by at least tenfold” because “some of these fines are peanuts” to the companies involved -- “just a cost of doing business.” He didn’t respond specifically when asked what should be prohibited ("I don’t know the full range of words") but said they must comply with the “strictures of the First Amendment.” Powell told the audience at the National Press Club speech: “The use of profanity when you know children will be watching is abhorrent. I think the line is being crossed.” On the station ownership cap, Powell said he was “quite encouraged” by the involvement of Congress “wherever the line is drawn.” The FCC increased the cap to 45% of TV homes nationwide from 35%; House legislation pending in the Senate makes 39% the figure. Powell said many TV groups have agreements with cable, satellite providers and others on digital and broadband issues, and “in the long run, the marketplace will take care of it.”
Comr. Martin also has called for stricter enforcement, pushing the FCC to assess fines for each and every indecent utterance, as opposed to a fine for a single program. “I have been actively encouraging the Commission to be more rigorous in our enforcement of the indecency laws for over a year now, and have repeatedly expressed concern that the Commission is not be doing all it should in this area,” Martin said. “As I said in a speech last month, a word otherwise considered indecent does not becomes acceptable merely because it is used as an adjective.”
The hullabaloo began when rock star Bono of the band U2 appeared last Jan. on the Golden Globe awards on NBC. Arriving at the podium for an award, he told the audience, “This is really, really [expletive] brilliant.” That in and of itself drew attention, but the FCC ruling later infuriated some and led to a public campaign by the PTC for the Commission to take stronger action. Parents were urged to write letters to the FCC and members of Congress. The bureau had said the F-word in the context in which Bono used it wasn’t indecent because it didn’t appeal to a “prurient interest” and wasn’t sexual or excretory in nature. A message left with an NBC representative seeking comment hadn’t been returned by our deadline.
PTC officials applauded the change but said they couldn’t abide by a decision not to fine NBC, and that without such a fine, the decision would be “meaningless.” PTC sent letters to all 5 commissioners, reminding them that the Supreme Court decision in FCC v. Pacifica Foundation didn’t allow for obscenities between the hours of 6 a.m. and 10 p.m. on broadcast networks. PTC said NBC violated preexisting decency laws and therefore should be fined.
“While we welcome the change of spirit on Powell’s part, and the FCC has tip-toed a little closer toward enforcing FCC decency rules by issuing this judgment, it still simply is not enough,” PTC Pres. Brent Bozell said. “The problem is not that Bono uttered the F-word. The problem is that NBC deliberately chose to air it, has never apologized and even has defended its behavior before the FCC.” He said network executives were “not going to stop airing this filth until the FCC gets serious with their decency fines. If the FCC does not fine NBC, the PTC will have no other option but to ask for congressional action that examines the decency enforcement practices of the FCC.”
While some FCC sources insisted Powell’s decision didn’t indicate a fundamental shift in his thinking on the First Amendment, others said he had miscalculated on the political ramifications of the first ruling. Pointing to his earlier statements on indecency, they said he tacitly had endorsed the bureau’s initial decision. For example, in his first news conference as FCC chairman, Powell said, “I don’t want the government as my nanny. I still have never understood why something as simple as turning it [the TV] off is not part of the answer.” In a speech to the Media Institute in 1998, Powell criticized what he saw as heavy-handed enforcement action, saying the govt. had “been engaged for too long in willful denial in order to subvert the Constitution so that it can impose its speech preferences on the public.”
In recent months, when asked about indecency by reporters, Powell often has bristled, saying the FCC shouldn’t be policing content on the airwaves. In a letter to the PTC dated Nov. 25, 2003, Powell said that, as a father, he was “personally disturbed by the proliferation of profanity, violence and sex in our daily lives.” However, he also said the FCC was limited in what it could do and had to be careful not to infringe on First Amendment rights. “The Commission is required to acknowledge that even repulsive speech is accorded protection under the First Amendment, and thus must act carefully when considering possible action against allegedly indecent programming,” Powell wrote.
Among Powell’s supporters, one FCC source the original decision was “not closely vetted with the chairman,” although the source also said the bureau had applied precedent. Sources also said Powell remained deeply committed to the First Amendment and remained concerned about “content-based regulation.” However, the move represents a larger effort to emphasize enforcement and the facts of this case warranted stronger action, sources said.
Earlier this week, the commissioners’ offices and bureaus were flooded with thousands of e-mails, asking President Bush to replace the commissioners because they weren’t doing enough on indecency. Congress also has increased pressure on the FCC in recent days. Rep. Upton (R- Mich.), chmn. of the House Telecom Subcommittee, said that next week he would introduce a bill to increase financial penalties that the FCC could impose on broadcasters who aired obscenity, indecency or profanity on TV and radio. Upton scheduled a hearing for Jan. 28 to examine the FCC’s broadcast indecency enforcement policies. “It is well past the time that we clean up our airwaves,” he said.
Rep. Lamar Smith (R-Tex.) said Powell’s proposal was a “partial victory for families who want to raise their children free from profane language. I urge the FCC to pass it as soon as possible.” Last month, Smith and Rep. Ose (R- Cal.) introduced a proposed Clean Airwaves Act that would prohibit 8 words from being broadcast over the air.