FCC chairman to Congress: TV, radio must clean up act

Wednesday, February 11, 2004

WASHINGTON — Janet Jackson’s Super Bowl exposure was “a new low for prime-time television,” the government’s chief broadcast regulator told congressional lawmakers today.

The Super Bowl halftime show featured a duet by Jackson and Justin Timberlake that ended with Timberlake tearing off part of Jackson’s top and exposing her right breast to 90 million TV viewers. The singers said the incident was an accident and have apologized, but it has fueled calls for the government to pay more attention to what goes out on the nation’s airwaves.

The Federal Communications Commission has received more than 200,000 complaints about the halftime show.

“The now infamous display during the Super Bowl halftime show, which represented a new low in prime-time television, is just the latest example in a growing list of deplorable incidents over the nation’s airwaves,” FCC Chairman Michael Powell told the Senate Commerce Committee.

Powell was joined by the four other FCC commissioners, all of whom have called for tougher penalties against broadcasters who violated indecency laws.

Powell told lawmakers the commission has aggressively gone after violators and would start doing more, including fining broadcasters for each incident rather than each program, and revoking licenses of some serial violators.

And he said he has asked broadcasters and cable operators to take steps to curb indecent and other inappropriate programming.

“Action must be taken by the entire television and radio industry to heed the public’s outcry and take affirmative steps to curb the race to the bottom,” Powell said. “This industry simply must help clean up its own room.”

The Wall Street Journal reported today that Powell had sent a letter to Robert Sachs, president of the National Cable and Telecommunications Association, challenging cable companies to voluntarily clean up their content. The newspaper reported that it had reviewed the letter and that while Powell credited the cable industry for providing many new programming choices, he said it also “has given rise to more opportunities for the worst programming to invade our living rooms.” Powell also wrote that while “much of the focus has been on broadcast programming, I believe the cable industry cannot completely ignore the discontent.”

The newspaper also reported that the NCTA “sent a hasty response to Mr. Powell, saying it spent a lot of time and money to educate consumers about family-friendly programming and ways to block edgier material from children’s reach.” It quoted yesterday’s letter from Sachs as saying, “We recognize, however, that there is still more to be done,” and that the group would have a more thorough response after talking to its members.

Though the FCC can impose a number of sanctions against television broadcasters that violate indecency standards, it has little recourse against cable operators, which are not subject to the federal regulations that attempt to limit sexual content to the window between 10 p.m. and 6 a.m. Legislators have on several occasions attempted to regulate content on cable, but federal courts have repeatedly struck down those efforts, saying the FCC does not have the authority to control content that is part of a service that customers voluntarily subscribe to.

In 2000, for example, the U.S. Supreme Court ruled in United States v. Playboy Entertainment Group that the FCC could not require cable operators to scramble programming on adult channels.

“The FCC simply doesn’t have the hammer over cable operators that it does over broadcasters,” said Douglas Lee, a Dixon, Ill., lawyer and First Amendment Center legal correspondent. Because the courts have found that the First Amendment protects cable content, “the FCC and Congress will have to rely on their powers of persuasion” to change cable programming.

The courts have upheld FCC regulation of over-the-air broadcast channels. In its 1969 ruling in Red Lion Broadcasting Co. v. FCC the Supreme Court justified such restrictions on broadcasters, saying that government, because it was allocating a finite number of broadcast frequencies, could regulate the licensees of those frequencies.

Relying in part on the spectrum-scarcity rationale, the high court in 1978 in FCC v. Pacifica said that the FCC could regulate the times during which indecent speech is broadcast. The FCC restricts over-the-air broadcasts of indecent speech to between 10 p.m. and 6 a.m., when few children are expected to be watching.

However, the high court noted in Turner Broadcasting System, Inc. v. FCC that the spectrum-scarcity rationale is irrelevant in the cable industry. The FCC’s regulation of indecency thus does not apply to programming aired on cable-only channels.

After appearing before the Senate committee, all five commissioners were heading for the other side of the Capitol and an encore performance in front of the House telecommunications subcommittee.

Before the commissioners arrived, the House panel was to hear from Paul Tagliabue, commissioner of the National Football League and Mel Karmazin, president of Viacom Inc., owner of both CBS, which aired the halftime show, and MTV, which produced it.

In addition to Jackson’s display, the show featured provocative dancing and lyrics laced with sexual innuendo.

In prepared testimony, Tagliabue apologized and said the NFL should have done more to ensure the program was suitable for a prime-time audience.

“The show that MTV produced this year fell far short of the NFL’s expectations of tasteful, first-class entertainment,” he said.

Karmazin also apologized, saying in prepared testimony, “Although we are proud of 99 percent of what people saw on CBS last Sunday, we understand what a difference one percent can make.”

Last month, the FCC proposed a record $755,000 fine against Clear Channel Communications, the nation’s largest radio station chain, for the “Bubba the Love Sponge” program aired on four of its Florida outlets.

Legislation to increase the fines for indecency from $27,500 per incident to $275,000 has been introduced in both houses of Congress.

“CBS gave everyone on the FCC, everyone in Congress, every parents’ organization, every parent a slap in the face and said, ‘Go to hell,’” said L. Brent Bozell III, president of the Parents Television Council, a conservative advocacy group.

“The wake-up alarm went off at the FCC,” Bozell said. “Now what you’re seeing are the commissioners taking a very strong public position on this.”

It’s not only the commissioners that are angry.

“They knew that this was beneath the standards, including CBS running some lewd and crude commercials during the Super Bowl,” said House Majority Leader Tom DeLay, R-Texas. “Everybody has got egg on their face.”

While criticizing Viacom, Congress last month voted to allow the company to own more television stations. Bowing to a veto threat from President Bush, lawmakers agreed to let companies like Viacom to own television stations reaching 39% of the viewing public, rather than 35%.

The FCC says it has stepped up enforcement of indecency rules. But the agency’s enforcement bureau last December declined to fine NBC for airing an expletive uttered by rock star Bono during the 2003 Golden Globe Awards show. The commission is considering whether to overrule the bureau in that case.

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