Indecent Exposure: Congress, the FCC, Cable TV, and Satellite Radio Look to Be Headed for a Big Showdown as Indecency Is among the Top Issues on the Agenda of the New Federal Communications Commission Chairman

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AS WRITERS OF CABLE and satellite programs have "pushed the envelope" to see how far they can go with obscenity and indecency, critics have termed programs everything from "tacky" and "in bad taste" to "raunchy" and "suffocating sewage." The Federal Communications Commission licenses frequencies to radio and television broadcasters who, by law, must meet public service requirements and obey decency rules. Because cable and satellite do not transmit using frequencies, but rather employ technology paid for by private industry, and because cable and satellite require subscription fees, legal experts have maintained that Congress and the FCC lack the authority to regulate them for indecency and obscenity. Moreover, cable and satellite companies consider their programs immune from FCC rules and fines.

Concerned about a media market driven by what sells, congressional Democrats and Republicans alike are investigating ways to regulate indecency and obscenity on cable and satellite. Ted Stevens (R.-Alaska), chairman of the Senate Commerce Committee, and Joe Barton (R.-Tex.), chairman of the House Commerce Committee, have spearheaded the drive to apply to cable and satellite programs the same indecency laws that now restrict over-the-air radio and TV broadcasting. At the National Association of Broadcasters annual leadership conference in March 2005, Stevens and Barton informed TV and radio executives that "Congress can put restrictions on cable." Inasmuch as viewers do not differentiate between traditional broadcast and pay-TV channels, "There is no reason why Washington should make the distinction." In the same meeting, Stevens assured a "showdown" with the cable industry if operators continue to contend exemption from FCC indecency restrictions which allow objectionable programs only between 10 p.m.-6 a.m.--the so called "safe harbor" when children are unlikely to be watching TV. Stevens predicted that, if cable operators challenge indecency restrictions on First Amendment grounds in court, they would lose.

With the mood in Washington less tolerant of indecent programming, many senators and representatives, in addition to those on commerce committees, have indicated support for Stevens and Barton. Four proposed indecency bills (HR 310, S193, S616, and S946) are working their way through Congress; at least one would require cable and satellite operators to offer a child-friendly program tier of at least 15 channels and include channel-blocking instructions with monthly billings.

Congressional action also has the support of Attorney General Alberto Gonzales, who made it clear he would pursue "aggressive prosecution" of obscenity cases. Conservatives interpret his statement as a sign the Justice Department will expand its antiobscenity enforcement to adult entertainment such as pay-per-view programming. Gonzales stated that "combating obscenity is critical to advancing the cause of justice and human dignity."

Public outcry against indecency has been the prime motivation for action in Washington. Complaints against cable and satellite programs increased more than five times between 2004-05. Cable subscribers especially resent the inclusion of undesirable channels in a "package" or "tier." Former FCC Chairman Michael Powell frequently explained that the FCC is not the "Federal Bureau of Indecency." The FCC does not monitor programs; rather it relies on public complaints to target objectionable shows.

The Parents TV Council (PTC) monitors prime-time network television using the Entertainment Tracking System (ETS), which has an accumulated database of more than 100,000 hours of programming. ETS logs every incident of sexual content, violence, profanity, disrespect for authority, and other negative content. A national clearinghouse of decency, PTC filed more than 230,000 of the 1,100,000 complaints the FCC received in 2005. Founded by Brent Bozell in 1995, PTC now claims more than 1,000,000 members with an online total of 125,000. …