FCC'S ACTIONS ON INDECENCY ARE UNCONSTITUTIONAL, GROUPS CHARGE

The broadcasters filed a petition to the FCC asking the agency to reconsider its decision to declare Bono’s utterance of “fucking” on the 2003 Golden Globes on NBC as indecent and profane (CD March 22 p1). NBC wasn’t fined, but the coalition’s complaints go beyond the Bono instance, saying the FCC’s actions have resulted in censorship in the broadcasting industry in the style of the McCarthy era.

Vague and overly broad regulation allows the FCC to engage in subjective enforcement and forces broadcasters to restrict their expression to what is unquestionably safe, the coalition said in its filing. The FCC decision also has resulted in significant restrictions on TV programming, the filing said, including programs the FCC staff previously ruled weren’t indecent, the group said. “The Commission’s harsh new policy has sent shock waves through the media industry, forcing broadcasters to censor speech that is protected by the First Amendment,” said attorney Robert Corn- Revere, who represents the group.

Although NAB wasn’t part of the 71-page petition, NAB Pres. Edward Fritts told his industry convention in Las Vegas that lawmakers wouldn’t have given Janet Jackson’s Super Bowl breast exposure a 2nd thought if it happened on a cable or satellite channel. “It would have been greeted with a collective shrug by the American public and by public policy- makers,” Fritts said. He said broadcasters are working on voluntary measures to prevent such occurrences on broadcast TV in the future. “Self-regulation can be flexible, adaptable, and can be tailored to each station’s unique circumstance, everything that government regulation is not.”

Separately, in an op-ed piece in the Wall St. Journal, NBC Chmn. Bob Wright wrote that legislation brewing on Capitol Hill is “just vague and punitive enough to cause talented writers, producers and actors to flee broadcast television.” Wright said the legislation before Congress would require broadcasters and individual performers to “weigh every move they make,” and in light of broadcasters’ tenuous hold on audiences because of competition from cable, legislation would “exacerbate the regulatory burden imposed on broadcasters.” Wright also criticized “murky” standards that make it impossible for broadcasters to self-regulate. “We have much less to fear from obscene, indecent, or profane content than we do from an overzealous government willing to limit First Amendment protections and censor creative expression. That would be indecent,” Wright wrote.

The coalition said the FCC’s Golden Globe decision is prompting some broadcasters to abandon live programming. Some radio stations are also dropping songs from their playlists -- even songs played for years, including The Who’s “Who Are You,” Lou Reed’s “Walk on the Wild Side,” and John Mellencamp’s “Jack and Diane” as well as newer songs like Pearl Jam’s “Jeremy” and Sheryl Crow’s “A Chance Would Do You Good,” the filing said. The coalition noted that this year’s Victoria’s Secret fashion show was scrapped, though it had aired on broadcast TV in the past. Dramas like ER are editing scripts and scenes, the group said, and public TV stations have dropped some documentaries. Public broadcaster WGBH edited a “hint of cleavage” out of its American Experience documentary “Emma Goldman,” and PBS edited nonsexual expletives from the poetry of poet Piri Thomas in a documentary, the coalition said.

This effort against the FCC has made for strange bedfellows. Among those in the coalition are the American Civil Liberties Union, Citadel Bcstg. Corp., Fox Entertainment Group, actress/comedienne Margaret Cho, Media Access Project, Minnesota Public Radio, magicians Penn & Teller, the RIAA, Viacom and People For the American Way. -- Brigitte Greenberg .HEADLIN FERREE’s DTV PLAN UNDER FIRE, AS MSTV DEVISES A DTV IDEA

LAS VEGAS -- Senate Communications Subcommittee Chmn. Burns (R-Mont.) called FCC Media Bureau Chief Kenneth Ferree’s DTV transition proposal backwards, while MSTV announced their own DTV plans at the NAB convention Mon.

“It’s a step backwards and we will continue to put pressure on the FCC” to come up with a better plan, Burns said. Last week, the NAB and the major networks fired off a 9-page letter to FCC Chmn. Powell criticizing the plan (CD April 19 p4). Several broadcasters told us Sun. they were “irate” with the proposal to consider redefining which consumers are classified as counting toward the statutorily mandated 85% DTV consumer adoption threshold. Broadcasters took particular issue with Ferree’s comment that broadcasters would “eat their children” before giving up their analog spectrum. A package of cookies with images of children’s faces in icing are to be delivered to Ferree, who’s scheduled to speak today (Tues.) at the convention, an attendee said.

“What has happened here is that we set the dialog and got the dialog going,” said Rick Chessen, chief of the FCC Digital Task Force. Chessen criticized broadcasters for still having misconceptions about the Ferree plan, such as saying that consumers wouldn’t have access to HD content: “That is simply not true. Consumers will continue to have incentives to by HDTV as more HDTV programming is available.”

MSTV executives claimed the FCC was trying to redefine the meaning of the word digital. “That will only confuse manufacturers and consumers,” said MSTV Chmn. Gary Chapman. Despite the rhetoric from Washington, broadcasters are serious about accelerating the transition, Chapman said. He also shot down claims that broadcasters were lobbying for dual carriage in order to complete the DTV transition: “We have no interest in maintaining duel carriage facilities.”

MSTV approved a channel election and spectrum repacking plan to facilitate the DTV transition, Chapman announced during a MSTV meeting at the convention. While details of the plan adopted Sun. were sketchy, the proposal requires close industry and govt. cooperation throughout the process, and preparatory work before channel elections can be made. There are still problems of interference issues from Canadian and Mexican stations. “Before you can talk about the end game, however, you need a plan for stations to select their final DTV channel assignments. This plan provides the blueprint for starting and finishing this process in a timely fashion,” Chapman said.

Meanwhile, House Commerce Chmn. Barton (R-Tex.) told attendees that HR-4026 to prevent satellite radio from offering local programming on its repeaters likely wouldn’t pass, despite the overall optimism voiced by other congressmen during the NAB congressional breakfast here Mon. House Judiciary Committee Chmn. Sensenbrenner (R-Wis.), House Telecom Subcommittee Chmn. Upton (R-Mich.), Rep. Bilirakis (R-Fla.) and Rep. Walden (R-Ore.) agreed that satellite companies should be held accountable on an agreement that they wouldn’t use their terrestrial repeaters for local content. “[The legislation] puts them on notice that they must make good on their promise,” Upton said. The bill would also instruct the FCC to investigate satellite’s alleged scheme to put content, such as local weather and traffic, on nationally distributed channels.

But Barton warned his colleagues not to pat themselves on the back yet. “I hate to be the Grinch who stole Christmas. [But] I doubt if this bill would move on its own this year,” Barton said. On issues of indecency regulation, Barton predicted that over time a consensus will emerge on regulating cable content. “I already met with the cable industry and they are trying to come up with some self policing,” Barton said. But if self policing doesn’t work and consumers complain “the answer from Congress isn’t going to be ’sorry ma'am, we can’t help you there.'”