The Price for On-Air Indecency Goes Up

The bill, called the Broadcast Decency Enforcement Act, was passed unanimously by the Senate last month and cleared the House by a vote of 379-35. President Bush has vowed to sign the bill into law; it would allow the Federal Communications Commission to powerfully punish over-the-air broadcasters for airing raunchy content. The bill keeps cable and satellite broadcasters outside of the government's authority to police the airwaves.

Yesterday's vote culminates a three-year culture clash among lawmakers, regulators, broadcasters, interest groups, lawyers and ordinary consumers about what can and can't be said on radio and television, and how much authority the government should have over artistic expression and free speech.

"I believe that government has a responsibility to help strengthen families," Bush said in a statement. "This legislation will make television and radio more family friendly by allowing the FCC to impose stiffer fines on broadcasters who air obscene or indecent programming."

Politically and socially conservative groups, such as the Parents Television Council, have pushed for higher fines and flooded the FCC with complaints about objectionable programming.

"We hope that the hefty fines will cause the multibillion-dollar broadcast networks finally to take the law seriously," said L. Brent Bozell, PTC president.

The FCC and most lawmakers largely have concurred.

"All we are doing is adding a few zeroes to the current level of fines; we do not change the current standards one bit," said Rep. Fred Upton (R-Mich.), who introduced the first version of the bill in January 2004, two weeks before singer Janet Jackson's right breast was exposed during the Super Bowl halftime show on CBS, creating the flashpoint of the decency debate.

On the other side, radio and television broadcasters, artists and First Amendment specialists have opposed the increase in fines, saying they will exacerbate what they call the "chilling effect" already underway in the creative community, as the government cracks down on content. For instance, the networks have added delays to live broadcasts that allow them to catch offensive material before it airs. A number of broadcasters have instituted zero-tolerance rules for their on-air personalities, meaning objectionable broadcasts can bring immediate firing.

Currently, the FCC can impose a maximum fine of $32,500 on radio and television stations that broadcast indecent material, defined by the agency as sexual or excretory content of a "patently offensive nature" between the hours of 6 a.m. and 10 p.m. when children are most likely to be watching.

The FCC can impose one fine per program that may include several indecent incidents, or it may chose to fine each incident within a program, raising the total amount into the low millions. The bill passed yesterday is meant to cap the fine amount at $3 million per incident per day, but lawyers disagreed on whether there is enough wiggle room in the bill's language to allow the FCC to impose fines running into the tens of millions of dollars.

The bill comes as networks are asking the courts to challenge the government's very ability to regulate content on the airwaves, an authority based on two Supreme Court rulings, the most important of which received only a 5 to 4 approval nearly 30 years ago.

ABC, CBS, NBC, Fox and more than 800 affiliated television stations sued in federal court in April to overturn the March indecency rulings, saying the agency had overstepped its authority. The suit could become the test case long awaited by broadcasters to challenge the indecency regulations, the networks privately acknowledge.

Broadcasters argue that the decency rules were put in place when viewers had a choice of only a few television and radio stations and it made some sense that the government should regulate content.

Further, the broadcasters say, cable and satellite channels have an unfair advantage because they can show racier content than the networks -- such as HBO's "The Sopranos" -- which has contributed to the erosion of the networks' audience.

"In issues related to programming content, NAB believes responsible self-regulation is preferable to government regulation," said Dennis Wharton, spokesman for the National Association of Broadcasters, the industry's trade group. "If there is regulation, it should be applied equally to cable and satellite TV and satellite radio."

Lawmaker and viewer outrage over increasingly vulgar radio and television programming was simmering in 2003, when U2 front man Bono uttered the "f-word" during a live broadcast of an awards show on NBC, former CBS Radio deejays Opie and Anthony aired a couple purportedly having sex in St. Patrick's cathedral in New York, and reality-TV star Nicole Richie used profanity during a Fox awards show.

But the issue boiled over after the 2004 Super Bowl. Twenty CBS-owned stations were fined a total of $550,000 for airing the incident, a penalty the network is appealing in court.

Since then, FCC commissioners and several lawmakers have said the maximum fine was no deterrent to the multibillion-dollar broadcast conglomerates. Various versions of bills that would raise the fines languished in Congress until this year, when Senate Majority Leader Bill Frist (R-Tenn.) picked up one version and pushed it through the Senate. The House acted quickly after the Senate's approval.