HOUSE TELECOM SUBCOMMITTEE MOVES INDECENCY LEGISLATION
Changes in indecency laws are in the works, as several proposals were floated for a bill that would increase FCC fines for indecent broadcast. Fresh from a marathon 7-hour hearing Wed. (CD Feb 12 p7), House Telecom Subcommittee members Thurs. unanimously approved the original version of HR-3717, by Subcommittee Chmn. Upton (R-Mich.) and ranking Democrat Markey (Mass.) At least 11 amendments were floated during the markup Thurs., as members questioned whether fines would be large enough, affiliates should be subject to fines for network broadcasts and the FCC should revamp its complaint process.
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Members fired criticism at the FCC after a full day of testimony from the commissioners before the Senate Commerce Committee in addition to the House Telecom Subcommittee. Several said the complaint process was difficult for the public and the FCC was slow in assessing fines. There were concerns that fines weren’t even being paid. “Consumer complaints have languished, fines have gone unpaid,” Markey said. “It’s taken a wardrobe malfunction to illuminate this regulatory malfunction.”
It will become clearer which proposals will survive after a House Commerce Committee hearing tentatively scheduled the week of Feb. 23, when Congress returns from a week-long break for Presidents Day. While several amendment were proposed Thurs., the members agreed all would be withdrawn until the full Committee markup, which would come after the hearing. Upton said the hearing would include networks and broadcasters, including at least one network affiliate. Upton said the measure has the support of House Speaker Dennis Hastert (R-Ill.).
Licensees would be fined a percentage of revenue, rather than a flat fee, under an amendment proposed by Markey. The licensees could be fined up to 5% of gross revenue, except in cases of continuing violations or unpaid fines unpaid, when the FCC could levy fines up to 10% of gross revenue. Rep. Barton (R-Tex.), who soon over take the House Commerce Committee helm, asked whether any other govt. fines were based on revenue. Markey and Committee staff said they weren’t aware of such fines in the communications sector, but one staffer said insider trading fines often were proportional to the amount earned in the transaction. Barton expressed skepticism about the idea and said speeding tickets were consistent regardless how rich the driver was.
Some proposed amendments focused on license revocation and renewal hearings. An amendment by Rep. Wynn (D-Md.) would require the FCC to initiate license revocation once a broadcaster accumulated 3 indecency violations. Rep. Walden (R-Ore.) told Wynn the language might need clarification, since the FCC had said it planned to start treating each utterance as a separate violation. “A string of profanities during one broadcast could trigger multiple hearings,” Walden said. Wynn agreed, saying the amendment didn’t envision such a scenario.
Rep. Wilson (R-N.M.) pushed an amendment that would require the FCC to consider whether indecency violations were paid up when conducting a license renewal hearing. Wynn said he also was interested in adding language similar to Wilson’s to the bill. House Commerce Consumer Protection Subcommittee Chmn. Stearns (R-Fla.) proposed raising the fines that could be assessed against “nonlicenses,” which would include on-air talent. Current FCC rules allow for a fine of up to $10,000 and a total of $75,000, but Stearns’s amendment would raise fines to 10 times those levels. A House source said the FCC never had levied such fines.
Some proposed amendments sought to either protect affiliates for programming coming from the networks or more directly target the on-air personality who committed the indecent act. An amendment by Rep. Green (D-Tex.) would protect affiliates from all but 10% of an indecency fine if the content originated from network programming. Walden pushed an amendment that would require the FCC to consider the size and revenue of a broadcaster while deliberating the size of an indecency fine.
Some proposed amendments urged the FCC and industry to do more to educate the public. Markey proposed requiring cable companies to include fliers in cable bills that would inform customers of their right to refuse a channel. He also floated an amendment that would require transgressors to broadcast public service announcements.
Stearns wanted to add an amendment expressing a “Sense of the Congress” that the NAB should reinstate a code of conduct for TV. A similar code was struck down by the courts in 1983. Walden suggested the amendment, which would carry no legal force, be broadened to include broadcasters who weren’t NAB members, as well as the cable and DBS industries. Stearns said he supported such a change.
Rep. Rush (D-Ill.) introduced 2 amendments. One would require stations to tape 180 days of programming retrievable for FCC complaints. The other would extend the definition of indecency to include violence. Some members said it wasn’t necessary to enact the 180-day proposal since the FCC no longer required the public to include a tape or transcript of an offending broadcast. The violence issue was raised by several members in the hearing Wed. and in the markup Thurs. Upton said he was sympathetic to members’ concerns about violent content, but said all those issues would need vetting to determine their constitutionality.