Collision
Course on the Airwaves
Critics caution
rush to regulation could infringe on freedom of speech
Chicago
Tribune
March 14, 2004
The producers of the ABC cop show "NYPD Blue" take a rebel's pride in the
firsts they have scored: first network series to routinely use profanity,
first to feature seminude love scenes and first to show a middle-age man's
ample bare bottom.
Now "NYPD Blue" is scoring a new kind of first. For the first time in the
show's 11 years, creator Steven Bochco said, the network's censors have
breached an agreement that allows him to air the racy material that gives the
TV drama its gritty appeal.
Bochco's troubles began soon after Janet Jackson's "wardrobe malfunction"
during the Super Bowl halftime show. Three times since then, Bochco says, ABC
has expunged racy scenes from "NYPD Blue," including one that he describes as
"a relatively brief, very tasteful sex scene."
An ABC spokeswoman confirmed the changes but said they resulted from a
"standard review" by the network's censors. Bochco said he refused to make the
changes voluntarily.
"It doesn't mean that I can stop them from doing it," he said. "But it does
signal my unwillingness to be a co-conspirator. It's very chilling. It's a
little intimidating, and it's frustrating."
It's also a sign of the times in the not-quite-so-brave new world of
broadcasting. When the House of Representatives last week passed an 18-fold
increase in the fines for indecency--to a maximum $500,000 per incident--it
marked the first major push in 25 years to toughen broadcast decency
standards.
Bills in the House and Senate are the leading edge of a political backlash
against what critics say has been an increase in indecent material on the
nation's television and radio airwaves.
Even before the Jackson incident, the Federal Communications Commission was
preparing enforcement actions in more than two dozen indecency cases, which is
nearly five times the average pace of enforcement activity in each of the last
five years.
The fear of new fines, and the far more serious threat that the government
might yank station broadcasting licenses, are prompting broadcasters to
tighten standards. Clear Channel Communications Inc. has turned off the
microphones of radio "shock jocks" Howard Stern and "Bubba the Love Sponge,"
while television executives are reviewing their programs with a keen eye for
questionable content.
A new era of careful speaking, primmer pictures and tougher government
oversight could have far-reaching effects. It could change what kinds of
programs air on broadcast TV, and it could bring unregulated cable and
satellite programming under government oversight for the first time.
Democrats are using the public outrage over Jackson's Super Bowl exhibition as
a chance to override, for a second time, the FCC's vote last year to allow
greater concentration of media ownership.
The FCC voted last June to cap the reach of any single owner of broadcast TV
stations at 45 percent of the nation's households, up from 35 percent. A later
compromise with Congress to limit the increase to 39 percent remains on hold
pending a court challenge.
Meanwhile, on the radio dial, the move toward new caution could push some of
the morning drive's most popular personalities into a new form of
distribution. Stern and others are expected to entertain lucrative new
contracts from satellite radio, which so far remains beyond the reach of
regulators.
That's a lot of change stemming from less than two seconds of bared breast.
But in the blush of outrage after the Super Bowl, few seem inclined to stand
in the way of that change.
Liberals and conservatives are cheering the process, each for their own
reasons. Liberals laud the renewed zest for oversight of a Bush administration
FCC that has pushed for media deregulation. Conservatives favor the return to
decency standards, even if it comes at the cost of more government
intervention.
"I am loath to get the government involved," said William Bennett, the
conservative leader and co-director of the Empower America think tank. "I
think the reason the government is involved is because people are screaming
for the government to do something."
They're getting what they're screaming for.
The $500,000 limit on fines, up from the $27,500 maximum for broadcasters, was
only one provision of the bill the House passed last week. The House also
voted, 391-22, to raise the fine on performers who violate decency standards
to $500,000 from $11,000.
And perhaps most significant, the bill includes a so-called "three strikes and
out" provision that automatically starts license revocation proceedings for
any station fined three times for violating decency standards.
The Senate, meanwhile, is considering proposals that reach even further. Among
them: new standards to protect children from violent programming and a
moratorium for more study before the FCC could implement its new media
concentration limits.
Businesses rarely welcome increased regulation, even when it comes with such
widespread and bipartisan applause. The broadcast industry is no exception.
Tie cable to regulations, too
Television broadcasters, in particular, are formulating a plan to seek to slow
the legislation in the Senate by offering amendments that might make the
measure more complicated and difficult to pass.
The industry argues that cable television should, for the first time, be
brought under regulatory scrutiny. This would make the competitive dynamic
more fair, broadcasters say.
"Broadcast management is paralyzed right now. Cable, being in a more nimble
environment, is more creative," said Kathryn Thomas, an expert on programming
trends at media-buying giant Starcom in Chicago. Regulators "can't speak out
of both sides of the mouth and, in the end, hope they haven't done monumental
damage to the business."
Broadcasters also may push to entitle cable customers to pick and choose which
stations they want. That move would replace the package deals cable companies
now sell, forcing customers to bring programming into their homes that might
offend them.
Another effort to broaden the legislation in the Senate would seek to include
violence in broadcast decency standards. But opponents say any such effort
would be misguided.
"That's the slippery slope of over-regulation," warned Dan Polsby, an expert
on media law at George Mason University Law School who helped write the
decency standards the FCC has used for a quarter century.
"Violence doesn't offend people in the same way at all. It tends to be about
the affirmation of conventional morality: good against evil," Polsby said.
"Sex tends to undermine the conventional morality."
Whatever the details of any final bill, approval would likely represent the
biggest change to broadcasting decency standards since 1978. That's when the
U.S. Supreme Court established the constitutionality of such standards by
upholding the FCC's ban on comedian George Carlin's "seven dirty words"
monologue.
Carlin's comedic bit attacked the FCC's limits on outrageous speech, an
argument that critics of the proposed laws are echoing, with politer language,
today.
Those who dissent against the rush toward
increased regulation fear a negative impact on free speech. In the face of a
get-tough FCC, big broadcasters with billions of dollars at stake might
sacrifice free expression to save their bottom lines, critics say.
"The notion of both a consolidated media in the hands of just a few owners and
this federal government setting standards for decency is a dangerous
combination," said U.S. Rep. Jan Schakowsky (D-Ill.). "It's a dangerous
combination for free speech."
Increasingly radio, because of its spontaneity, its propensity to push the
envelope and its many hours of live programming, has drawn more criticism and
fines from the FCC than television.
Stern action toward Stern
Clear Channel is the nation's largest radio owner with 1,200 stations in 50
states. Amid the fallout from the Jackson incident, the firm fired Tampa-based
shock jock "Bubba the Love Sponge" and paid, without protest, a $750,000 fine
for his antics.
The San Antonio-based broadcasting giant also suspended Stern from its six
stations that carried him and introduced a "zero tolerance" decency
requirement for its on-air personalities. Clear Channel also spent $500,000
for the equipment needed to impose a 20-second delay on all of its live
broadcasts.
The move on Stern came the day before Clear Channel radio executive John Hogan
testified before Congress. But the Stern antics that prompted his removal were
no more outrageous than much of his sexually provocative banter over the
years.
The timing gave rise to charges that the jock's suspension was motivated by
politics. And with quick resolution of the "Love Sponge" case, Clear Channel
avoided having that transgression count against any future "three strikes"
penalty, said Merrill Lynch analyst Marc E. Nabi.
Broadcasters who like to perform on the edge of decency find the new standards
unnerving. Chicago-based shock jock Erich "Mancow" Muller contends that the
$42,000 he was fined for decency offenses since 1999 would cost $62 million
under the proposals in Congress--the result of the higher fines and the way
they may be applied on individual stations.
"Anyone with an opinion is in danger if you're not with the current political
climate," Muller said. "I'm trying to do my show and figure out what the rules
are. So far, it's been, `If you can't say it around a 7-year-old, then don't
say it.' Now I have to do a show for a 7-year-old?"
He added: "One mistake and you're finished? Zero tolerance? That's fascism."
FCC enforcement chief David Solomon doubts the sincerity of complaints about
vagueness.
"It's an excuse by broadcasters every time they get in trouble that if only
the FCC can make its rules clearer," he said. "I think it's pretty hard for
anybody to argue with a straight face they think all this is fine."
Bennett, who next month will launch his own conservative radio program, has
little sympathy for Muller or Stern, or the advertisers and stations that back
them.
"If you're sponsoring Howard Stern, you ought to be nervous," Bennett said.
"You don't own these airwaves, and there are rules and regulations.
"Will the nation suffer without Howard Stern on all the stations he's been on?
I don't think so. Somebody else will come along."
Either that, or Stern and others like him will go elsewhere, to satellite
radio perhaps.
Last week, Stern threatened to take his mostly raunchy, highly rated gig to
unregulated satellite distribution, which is not subject to federally mandated
decency standards. But the threat seemed hollow because the fledgling
satellite industry could not afford Stern.
That is changing.
Satellite on ascent
Satellite radio operators have raised money in the stock market and are
building their lists of subscribers, who pay monthly fees for broadcasts. XM
Radio expects to double its audience this year to 3 million subscribers. Rival
Sirius Satellite Radio has built a 265,000-customer base after a much later
start.
Recently, Sirius agreed to pay $31 million a year to broadcast National
Football League games.
Merrill Lynch's Nabi figures Sirius might pay Stern a similar amount--enough
to match what Stern earns from Infinity Broadcasting and other sources--in a
bid by the radio network to attract new customers.
No wonder radio industry experts paid particular attention last week when
Stern warned his listeners that his days on the free radio dial might be
ending.
"I'm saying goodbye to you now, because this is it," he told listeners last
week. "These are the last days of Pompeii, baby."
Stern's detractors see an altogether different cataclysm at hand: The end of
Sodom and Gomorrah. And partly, they blame regulators for letting broadcasting
standards fall so low.
Critics of FCC Chairman Michael Powell say broadcasters felt they would have
free reign under him, particularly after Powell in his first news conference
as chairman declared, "I don't think that my government is my nanny."
Powell offered a simple solution to offensive material: "Turning it off and
controlling your children's television access."
Three years later, Powell and others are looking at the issue differently.
Commissioner Michael Copps, one of two Democrats on the five-member FCC, said
the agency shares blame for any perceived indecency outbreak because of its
mixed signals and inaction.
"I think we're culprit No. 1 that this has gotten as far as it has," Copps
said. "Hopefully, now we'll be the vindicator No. 1 and try to see if we can't
arrest this race to the bottom."