House Commerce Committee Moves Indecency Bill to House Floor

The bill (HR-310), introduced by House Telecom Subcommittee Chmn. Upton (R-Mich.), would raise FCC fines for indecent broadcasts from $32,500 to $500,000 per violation. Other provisions include: (1) A “3 strikes” rule that would require the FCC to hold license revocation hearings after a broadcaster is cited for 3 violations. The FCC can choose not to revoke a license, Upton said, countering claims that the measure is a “death penalty.” (2) Requirements that the FCC take into account the broadcaster’s size and the situation when determining indecency penalties. (3) FCC fines for individual performers as early as the first indecency offense. (4) A “shot clock” for the FCC to take action within 180 days of a complaint. (5) Requirements the FCC take indecency violations into account when conducting license renewal proceedings. (6) A requirement that the FCC report to Congress annually on the agency’s broadcast decency enforcement activities.

Only Rep. Schakowsky (D-Ill.) proposed amendments to the bill, in an unsuccessful attempt to strip the provision that would allow the FCC to levy fines against artists. “I worry that increasing fines, especially those directed at individuals, may lead to excessive self, if not actual, censorship,” Schakowsky said. She asked if censoring political speech was far behind, and pointed out that the bill had a “severability clause” that allows parts of the bill to be struck down by the courts without jeopardizing the entire bill. She predicted the individual fines would be struck down. “Why don’t we spare ourselves the aggravation and reverse it now?” she said.

Only Rep. Waxman (D-Cal.) joined Schakowsky in voting against the bill. They said the bill missed the underlying issue, which is media consolidation. Waxman said FCC standards were vague and the bill would create a “chilling impact.” Waxman said broadcasters’ concerns over airing movies like Saving Private Ryan and Schindler’s List show that such a chill is occurring in the broadcast industry. “The impact will be self- censorship,” he said.

Most other members supported the bill, though some expressed reservations. Rep. Walden (R-Ore.), a broadcaster himself, emphasized that the size of a broadcaster’s market must be taken into account, as a $500,000 fine could kill some stations. Walden also said many parents would mistakenly believe the bill would clean up TV overnight, when most of their concerns were over cable TV programming.

Some said the bill should include cable and satellite TV and radio. Rep. Shimkus (R-Ill.) said he “lamented” the fact that the bill didn’t extend to cable. Rep. Deal (R-Ga.), who last year pushed legislation that would require cable operators to offer a la carte service, said cable providers should offer a family-friendly tier. Rep. Wynn (D-Md.) said the regulations shouldn’t apply to cable, since by paying for it subscribers invite the content into their homes.

Supporters of the bill, which had 49 co-sponsors, argued that it would “sharpen” FCC enforcement powers. “In the months since the 2004 Super Bowl, there continue to be frequent indecency complaints filed at the FCC, and the FCC continues to levy hefty penalties for offensive programming,” said House Commerce Committee Chmn. Barton (R-Tex.). “Clearly, the FCC’s enforcement tools could use some sharpening.” House Telecom Subcommittee Chmn. Upton (R-Mich.) said: “Most of our local broadcasters act responsibly, but there are still too many who continue to push the envelope of indecency.”