Sunday, February 6, 2005

At first blush, it looked like the beginning of a dramatic shift in the government’s broadcast-indecency policy.

Late last month, the Federal Communications Commission rejected 36 indecency complaints against television shows, issuing a statement that the incidents cited — including episodes of broadcast TV series such as “Friends” and “Will & Grace” that featured characters talking about sexual situations — were not “patently offensive.”

The announcement came three days after FCC Chairman Michael K. Powell announced his resignation, telling The Washington Times that he was uncomfortable waging war on indecency because regulating television and radio content clashed with his belief in free speech.

But make no mistake: The end is not near in the battle over indecency, which heated up a year ago when pop singer Justin Timberlake briefly exposed Janet Jackson’s right breast during a performance at the Super Bowl halftime show.

The departure of Mr. Powell has opened the way for new leadership at the FCC, and the leading candidate to succeed him — FCC Commissioner Kevin J. Martin, a fellow Republican — is one of the agency’s strongest critics of indecent material on television and radio.

Meanwhile, lawmakers on Capitol Hill have quietly revived legislation to dramatically boost the amount FCC can fine broadcasters who violate the government’s decency standards. Partisan wrangling killed a similar bill last year, but backers of the new legislation say they have a better shot of passing it in 2005.

Bubbling beneath the surface: Calls for the FCC to regulate the content of programs on cable and satellite television and radio. Conservative activists would like the government to do more to try to curb racy fare such as HBO’s “The Sopranos” and MTV’s “The Real World,” but most communications lawyers believe it is unlikely the FCC would attempt to regulate subscription services.

These lawyers predict the indecency debate ultimately will wind up in the Supreme Court — the only forum, they say, that can make sense of the FCC’s seemingly erratic enforcement of the standards.

“The bottom line is that the indecency issue isn’t going away anytime soon,” said Howard M. Liberman, a communications lawyer in Washington who formerly worked as an FCC staff lawyer.

FCC leadership key

The key to the outcome of the war on indecency lies in the intrigue over who will succeed Mr. Powell, who will leave in March, about two months after his father, Colin L. Powell, resigned as President Bush’s secretary of state.

If Mr. Martin ascends to the FCC chairmanship, he is expected to take a tougher stance enforcing the government standards.

Mr. Martin has won the endorsement of the Parents Television Council, a conservative advocacy group that has led the fight against indecency. The council’s Web site allows visitors to file complaints with the FCC via e-mail, which is cited as a prime reason for the surge in indecency complaints from 202,032 in 2003 to 1.1 million last year.

Mr. Martin has consistently voted for the indecency fines the FCC has proposed in recent years, often issuing statements that called for higher penalties.

Mr. Bush appointed Mr. Martin, a lawyer who worked on the Bush-Cheney transition team, to the FCC in 2001. Mr. Martin’s wife, Catherine, is an adviser to Vice President Dick Cheney.

If the president promotes Mr. Martin to chairman, he would not have to go through Senate confirmation hearings because he is a sitting commissioner.

Representatives from his office did not return telephone calls. It is believed he does not want to make public statements on indecency — or other matters before the FCC — because he wants to avoid the appearance of having the job before the president chooses Mr. Powell’s successor.

Rebecca A. Klein, formerly the chairwoman of the Public Utility Commission of Texas when Mr. Bush was governor, is also mentioned as a candidate to succeed Mr. Powell.

If Mr. Martin is tapped for the chairmanship, Ms. Klein could fill his spot on the five-member commission.

Kathleen Q. Abernathy, a Republican whose term as an FCC commissioner recently expired, is expected to step aside soon. If that happens, the FCC will comprise only white men; Mr. Powell is black.

Ms. Klein, who is Hispanic, could fill the void left by the absence of minorities and women on the commission, observers said.

Busy agenda

Whoever succeeds Mr. Powell will have a lot on his plate.

The FCC once was one of the government’s most obscure agencies, created by Congress in 1934 to license radio and television stations and make sure they adhered to their assigned spaces on the airwaves.

As technology became more prevalent in the everyday lives of Americans, the FCC’s responsibilities deepened. It now regulates the use of most forms of telecommunications, including telephones and the Internet.

In addition, the FCC has jurisdiction over a host of spinoff technologies, such as “voice over Internet protocol,” which allows people to make telephone calls over the Internet; cellular phones and other wireless-communications equipment; and “e-911” systems that allow public-safety workers to determine the location of cell phone users during emergencies.

The FCC’s profile also has been raised by the debate over media-ownership rules.

Mr. Powell pushed for looser rules that would allow a single company to own multiple newspapers, television and radio stations in a single city, but the rules were struck down by a federal appeals court in Philadelphia last summer.

The FCC decided two weeks ago not to petition that ruling to the Supreme Court.

Mr. Powell used his bully pulpit at the FCC to push for a faster conversion to digital television, which offers viewers better picture and sound quality and allows television stations to add more channels.

However, it is not clear when broadcasters will turn off their analog signals and switch to digital signals. Under Mr. Powell, the FCC laid out a plan to complete the conversion by 2009, but broadcasters have resisted.

Once the conversion is complete, the FCC will be able to auction off the old signals to other users, potentially generating billions of dollars for the government. Likely uses include providing broadband Internet service to rural areas and improving emergency broadcasting services.

The FCC also must sort through a proposal to change the federal telecommunications regulations, particularly the complicated rules that govern how much telephone companies pay to begin and complete calls.

And then there’s indecency, which some critics have called a distraction from the agency’s weightier concerns.

“It sucks too much energy and oxygen out of the room. There are so many difficult and complex regulatory issues that the FCC faces, and they take time to figure out. This indecency stuff is a colossal waste of time,” said Bruce W. Sanford, a communications lawyer in Washington.

Lara Mahaney, a Parents Television Council spokeswoman, dismissed the suggestion that indecency has been a distraction.

“We don’t think [indecency is] more important than cable. We don’t think it’s more important than telecom issues. We think it’s as important,” she said.

Confusing enforcement

Also at the heart of the indecency debate is a question: Did the big media companies learn a lesson after the outrage over last year’s Super Bowl halftime show?

Three weeks after the incident involving Mr. Timberlake and Miss Jackson, executives from several big media companies appeared before a congressional panel and assured the lawmakers they were concerned about indecency on the airwaves.

Since then, the television networks have exhibited differing levels of sensitivity to concerns over indecency.

ABC triggered a brouhaha in November when it aired a racy introduction to “Monday Night Football” featuring a “Desperate Housewives” actress clad only in a towel.

However, Fox blurred an image of a cartoon baby’s behind on a recent repeat of “Family Guy,” even though the scene aired unaltered and without complaint four years ago.

Television executives complain the FCC’s enforcement of the standards has been confusing.

In October 2003, the FCC’s enforcement bureau ruled that rock star Bono did not violate the government’s decency standards when he said “This is really, really … brilliant” during a January 2003 appearance on the Golden Globes because he used the profanity as an adjective, not a verb.

About six weeks after last year’s Super Bowl halftime show, the FCC reversed the ruling.

Many of the 36 complaints that the FCC rejected last month stemmed from the use of a common nickname for “Richard” on TV shows such as “NYPD Blue” and “Dawson’s Creek.” However, in the cases cited, the characters didn’t use the term as a nickname.

“We are doing our best to find our way in this very complicated issue in a very complicated landscape,” Gail Berman, Fox’s entertainment chief, said during a meeting with newspaper TV columnists last month.

Some lawyers expect Fox or another television network to challenge the FCC’s enforcement of the rules.

After the FCC fined Fox $1.2 million in October for airing an episode of the reality show “Married by America” that featured people interacting with strippers at a bachelor and bachelorette party, the network filed a lengthy protest.

The documents spell out numerous arguments as to why the network does not believe the episode was indecent. This is important, lawyers say, because if the case winds up in a court, the network will not be able to trot out an argument that it hasn’t used at the FCC.

The FCC is reviewing Fox’s protest.

“You can see they’re fixing to go to court,” said Mr. Liberman, the communications lawyer.

Under FCC rules, over-the-air television and radio stations cannot broadcast material involving sexual and excretory functions between 6 a.m. and 10 p.m., when children might tune in. The FCC does not regulate content that airs on cable and satellite television.

The major broadcast networks capture 44 percent of the prime-time television audience, while basic cable channels capture 52 percent, according to Nielsen Media Research Inc.

The Parents Television Council has urged the FCC and Congress to allow consumers to choose what cable networks they subscribe to. This way, the activists said, a family that wants to pay for the Hallmark Channel wouldn’t necessarily have to be saddled with MTV.

Similarly, Howard Stern’s plan to move to satellite radio next year has triggered calls for tighter regulation of cable TV and satellite radio.

Communications lawyers said it is unlikely the courts would allow the FCC to regulate cable and satellite television and radio because people choose to subscribe to it, unlike over-the-air broadcast channels.

The Media Access Project watchdog group probably would challenge any effort to extend the FCC’s reach to cable and satellite content regulation, said its president, Andrew Jay Schwartzman.

Lawmakers persistent

The appetite to crack down on indecency hasn’t dampened on Capitol Hill.

Sen. Sam Brownback, Kansas Republican, has introduced a bill that would boost the amount the FCC can penalize broadcasters that air indecency to $325,000 per incident, up from $32,500.

The legislation’s co-sponsors include Sen. Joe Lieberman, Connecticut Democrat, and Sen. John McCain, Arizona Republican.

Rep. Fred Upton, Michigan Republican, has introduced a bill that would give the FCC the power to fine broadcasters as much as $500,000 per incident.

Similar legislation to boost FCC fines died in Congress last year after much partisan wrangling. Proponents said the chance of passing a bill this year is greater because it is not an election year.

Tougher fines are needed because too many broadcasters treat indecency fines as another cost of doing business, proponents said.

Said Mr. Brownback: “We must have punitive damages to give some teeth to the current fine structure so there will be meaningful deterrents to broadcasters.”

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