Indecency back on the Hill agenda

As RBR has been reporting for months now, Sen. Sam Brownback (R-KS) and Rep. Fred Upton (R-MI) are both set to get ball rolling on their respective bills to jack up the penalties for incidents of broadcast indecency. Although widely supported in 2004, for a number of reasons, Congress failed to get it done. It's no surprise they'll try again in 2005.

The maximum indecency fine at the moment is 32.5K. Brownback would simply take that up by a factor of 10, to 325K, with provisions for tack on further punishment. Upton is looking for 500K, with a three strike rule triggering an FCC license-revocation hearing.

The addition of excess baggage to the bills, particularly on the Senate side, doomed them in 2004. Byron Dorgan (D-ND) was able to persuade a majority of the Senate Commerce Committee to add in language repudiating the FCC's 6/2/03 media ownership ruling, which was viewed as a poison pill in the House.

Late attempts to attach stripped-down versions of the bills to appropriations measures failed.

The FCC nevertheless found ways to jack up the penalties for broadcast indecency. The primary method was to issue fines to all licensees which aired a offending network offering, as in the Fox Television "Married By America" case, which roughed up 169 individual stations for 7K, resulting in a total penalty just under 1.2M. It also used consent decrees with Clear Channel, Viacom and others which resulted in millions of dollars going into the US Treasury, generally in exchange for partial admissions of guilt and the establishment of anti-indecency procedures at the consenting company.

If Congress fails to enact fine increases again, the FCC has another tool which it has yet to make use of - - per-utterance fines. Commissioners Kevin Martin and Michael Copps have both been pushing for utilization of this approach. Copps has also been pushing for license revocation hearings, saying that the Commission has not only that power, but that responsibility, action by Congress notwithstanding.