WASHINGTON — Two senators have introduced indecency legislation freighted with multiple provisions that include the possibility of bringing cable television and satellite radio under Federal Communications Commission indecency authority as well as encompassing violence as part of the definition of indecency for the first time.
“This bill’s got everything but the kitchen sink,” said Adam Thierer, director of the Progress and Freedom Foundation’s Center for Digital Media Freedom, who doubts the legislation, if passed, would stand muster in court.
The Indecent and Gratuitous and Excessive Violence Broadcasting Control Act of 2005, co-authored and submitted by Sens. John Rockefeller (D-W.Va.) and Kay Bailey Hutchison (R-Texas), would also require 30-second warnings reappearing onscreen every 30 minutes during broadcast of indecent or violent material and would double the weekly number of hours — from three to six — of required educational programming for children.
Bill would also raise broadcaster fines to $500,000 per infraction (not to exceed $3 million in a 24-hour period) for transmitting “obscene, indecent or profane language or images,” according to the submitted text.
While extending the indecency definition to include violence for broadcast programming, bill is indirect and unclear in its proposal to regulate cablers. The legislation directs the FCC to assess the effectiveness of current cable filtering technologies available to parents. If the technologies “are not protecting children from excessive violence and sex, then the FCC will have to create a rule” that compels programmers to do more.
Bill doesn’t specify what that rule would be. Moreover, the FCC currently has no authority to dictate rules to cablers, but bill would confer it on the agency.
Similar legislation originally intended just to boost indecency fines was introduced in the previous Congress, but provisions to include cablers and satellite radio under FCC authority — which the Supreme Court has ruled are different from broadcast — helped sink those bills.
Asked why Hutchison thought the provisions might succeed now, Chris Paulitze, a spokesman for the senator, said, “If we’re going to truly protect children from gratuitous sex and violence, the bill would be moot if we didn’t include cable and satellite. Very few Americans still use rabbit ears to get their television programs.”
Senate Commerce Committee chairman Ted Stevens (R-Alaska) recently suggested he would be submitting legislation that would bring cablers and satellite radio under FCC purview but later seemed to back away from that in favor of letting cablers find workable alternatives.
In a prepared statement, Hutchison said, “Our children have too many opportunities to see and hear gratuitous violence and sex on our airwaves and too few alternatives from which to choose. If our broadcasters are not willing to voluntarily protect our children, then it is the responsibility of Congress to step in. Broadcasters do not have a constitutional right to flood the airwaves with excessive violence and sex.”
Rockefeller added, “There is a compelling governmental interest in limiting the negative influences of violent video programming on children. A significant amount of violent video programming that is readily accessible to minors remains unrated specifically for violence and therefore cannot be blocked solely on the basis of its violent content.”
Rep. Jerrold Nadler (D-N.Y.) criticized the legislation. “It’s always dangerous as a matter of constitutional law and freedom of expression to create draconian penalties for vaguely defined offenses,” he said. “What’s ‘indecent’? What’s ‘profane’? It’s so vague. We used to have ‘blasphemy’ as a crime until the Supreme Court threw it out,” Nadler added.
“Legislation like this is very troubling because it means Congress has essentially given up on parental and governmental responsibility,” Thierer said, predicting that the bill would not likely survive a court challenge. “Hutchison and Rockefeller are obviously completely oblivious to court decisions on Internet indecency that said filtering mechanisms exist, so you can’t regulate this. And the filtering mechanisms that already exist for cable TV are a lot easier to use than Internet filters.”
The cable industry reacted cautiously to the news. “We want to take some time to study and better understand the bill,” said National Cable and Telecommunications Assn. spokesman Brian Dietz. “However, we look forward to working with Sens. Rockefeller, Hutchinson and others to address the important concerns that many parents share about the impact of television content on children … We want to work closely with all members of Congress to educate parents about the tools and resources available to help them make responsible viewing decisions for their families.”