WASHINGTON Chafing over a “wardrobe malfunction” and racy radio shock-jock programs, the House overwhelmingly passed a bill yesterday authorizing unprecedented fines for indecency.
Lawmakers sought to hit broadcasters where it hurts the pocketbook in approving the measure 389-38, rejecting criticism that the penalties would stifle free speech and expression and further homogenize programming.
The bill, H.R. 310, would increase the maximum fine from $32,500 to $500,000 for a company and from $11,000 to $500,000 for an individual entertainer.
“With passage of this legislation, I am confident that broadcasters will think twice about pushing the envelope,” said Rep. Fred Upton, R-Mich., chairman of the House telecommunications panel and author of the bill. “Our kids will be better off for it.”
The White House said in a statement that it strongly supported the legislation that would “make broadcast television and radio more suitable for family viewing.”
A similar bill, S. 193, has been introduced in the Senate, where it has broad bipartisan support. Sen. Ted Stevens, R-Alaska, chairman of the Commerce Committee, has said he wants to act on the bill quickly, but he hasn’t given a timetable.
Any differences in the two bills would have to be resolved before it could go to President Bush for his signature. Last year the two chambers were unable to reach a compromise.
Opponents said they were concerned that stiffer fines by the Federal Communications Commission would lead to more self-censorship by broadcasters and entertainers unclear about the definition of “indecent.”
They cited the example of several ABC affiliates that did not air the World War II drama “Saving Private Ryan” last year because of worries that violence and profanity would lead to fines, even though the movie already had aired on network TV.
Rep. Jerrold Nadler, D-N.Y., said changing the channel is the best way for families to avoid racy programming.
“But the prurient Puritans of this House are not satisfied with free choice and the free market,” Nadler said. “Instead, they want the government to decide what is or is not appropriate for the public to watch or listen to.”
Andrew Jay Schwartzman, chief executive officer of the Media Access Project, a law firm that represents small broadcasters, said some of his clients already are censoring themselves because they can’t risk fines at the current level.
National Association of Broadcasters spokesman Dennis Wharton said voluntary industry initiatives are preferable to government regulation in addressing programming issues. He added that there is often more explicit content on cable and satellite channels, which are not subject to indecency fines but can be just as easily accessible to children.
Under FCC rules and federal law, radio stations and over-the-air television channels cannot air obscene material at any time, and cannot air indecent material between 6 a.m. and 10 p.m. The FCC defines obscene material as describing sexual conduct “in a patently offensive way” and lacking “serious literary, artistic, political or scientific value.” Indecent material is not as offensive but still contains references to sex or excretions.
The FCC has stepped up enforcement of the indecency statute, perhaps most notably with a $550,000 fine against CBS for Janet Jackson’s “wardrobe malfunction” during last year’s Super Bowl halftime show. Radio personality Howard Stern also has been a frequent target.
“The 2004 Super Bowl crystallized the notion that something needs to be done,” said Rep. Joe Barton, R-Texas, chairman of the Energy and Commerce Committee that sent the bill to the full House. “For too long, broadcasters have been pushing the envelope.”
The FCC has wide latitude to impose fines. It can fine an individual company, groups of stations owned by a company and individual entertainers. In the case of CBS and last year’s Super Bowl halftime show, it imposed a fine of $27,500 then the maximum against each of 20 stations owned by the network.
All five members of the FCC three Republicans and two Democrats say the current fines are far too low and they have encouraged Congress to boost them.
The House bill would let the FCC fine an individual entertainer, such as a disc jockey, without first issuing a warning, which is the case now. The FCC has never issued such a fine.
“There have to be restrictions because there has to be an interest in protecting children,” said Lara Mahaney, a vice president with the watchdog group, Parents Television Council.
The Senate bill calls for raising the maximum fine on broadcasters to $325,000, with a cap of $3 million for one day. The House bill does not include a cap.