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Indecency Debate Heats Up in Washington

Washington – A year after Janet Jackson’s wardrobe malfunction at the Super Bowl, all the excitement surrounding indecent content this year seems to be taking place in Washington, D.C.

Among recent developments:

  • The House is considering indecency legislation that would authorize $500,000 fines for broadcast licensees and performers, as well as license revocation hearings for repeat violators. The bill easily passed the Energy and Commerce Committee Feb. 8 and now goes to the floor for almost certain approval.
  • Phil Lombardo, joint board chairman of the National Assn. of Broadcasters, is charging the Federal Communications Commission with inconsistent and discriminatory indecency enforcement. He predicts the contentious issue will wind up in the courts and says the NAB has a multimillion-dollar war chest to support an inevitable challenge by a broadcast company.
  • Congressional talk of subjecting satellite and cable services to the same indecency rules broadcasters face has moved from the back rooms to the floor.
  • In the House, 33 members have written a letter to President Bush urging him to appoint a new FCC chairman who will keep the indecency heat on broadcasters.

Rep. Fred Upton, R-Mich., on Jan. 25 reintroduced his Broadcast Decency Enforcement Act, H.R. 310. Many groups are warning lawmakers about a provision of the Upton bill that would set fines for “individuals” at the same level as broadcast companies – and in some cases higher.


In a rare situation, the NAB and the Recording Industry Assn. of America find themselves on the same side of an issue and are working to have the provision modified.

They are joined in their opposition by the major artist and performer groups – the Recording Academy, the Recording Artists’ Coalition, the American Federation of Television and Radio Artists and the American Federation of Musicians. AFTRA represents not only radio and TV talent but recording artists as well.

Insiders told Billboard that Energy and Commerce Committee chairman Rep. Joe Barton, R-Texas, did not want amendments attached that might encumber passage of the Upton bill.

Nevertheless, opponents of the provision that would fine individuals made headway, according to a spokeswoman for committee member Rep. Mary Bono, R-Calif., co-chair of the Recording Arts and Sciences Caucus.

Barton agreed to permit committee members sympathetic to performers’ concerns about the one-size-fits-all, $500,000 fine to discuss why they believe the provision is draconian. “This will be done with the idea that the language will be studied further,” the spokeswoman says.

However, an amendment that would warn performers before a first fine violation was defeated.

“We’re trying to explain that a ‘baby band’… could be subject to the same fine slapped on a multimillion-dollar corporation,” says Daryl Friedman, Recording Academy VP for advocacy and government relations. “They would be driven into bankruptcy.”

Opponents also worry that classic recordings by established or heritage artists might violate the new indecency guidelines.

While there is little chance the House bill will be amended, the Senate version, authored by Sen. Sam Brownback, R-Kan., offers hope. It does not contain the provision that would subject performers to half-million-dollar fines. Opponents of the House provision hope the language will be modified if it gets reconciled with Brownback’s bill.


As legislation that would put another arrow in the FCC’s quiver moves forward, Lombardo says a legal showdown is inevitable.

Yet radio industry leaders Clear Channel, Infinity and Emmis have already paid the government millions of dollars to settle indecency infractions. So who will lead the charge? D.C. insiders believe the challenge will come from the TV side. Fox Broadcasting is most often mentioned. In October, all 169 of its affiliates were fined for a “sexually suggestive” scene in the “Married by America” series.

Lombardo, who also serves as CEO of TV broadcaster Citadel Communications, cited recent examples of the crackdown’s chilling effect on TV programing during a Media Institute luncheon Feb. 3 in Washington, D.C. He wondered aloud whether federal policymakers may be “on the verge of killing free over-the-air broadcasting” with rules that stifle the ability to compete in a multichannel universe.

Even with last year’s government settlements and zero-tolerance indecency edicts, radio continues to struggle with the issue, according to NAB senior VP of corporate communications Dennis Wharton. “Everybody’s struggling,” he says. “Radio stations have resorted to using the dump button. (Exiting FCC chairman Michael) Powell says he doesn’t think radio would like the government to issue a red book. I’m not sure that is true. Stations just want to know what the rules are.”

The NAB says an unfair double-standard exists, putting broadcasters at a competitive disadvantage to cable and satellite companies – where programing is outside the reach of FCC scrutiny. Dumbing down programing to avoid fines or license revocation will push broadcast audiences and advertisers to unregulated pay media services, it claims.

Communications attorneys and lobbyists polled by Billboard do not agree on what the final outcome might be on indecency fines. Some predict such legislation would be signed by President Bush but struck down by the courts.

Others say a fundamental distinction of cable and satellite-radio services – that they are subscription-based, and therefore are services chosen by the consumer – is enough to protect them from indecency rules.

Regardless of the outcome, many agree that legislators will keep this issue on the front burner to endear themselves to their constituents.

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