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Indecency fine increase threatens speech, critics say

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NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Broadcasting   ·   June 9, 2006

NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Broadcasting   ·   June 9, 2006

Indecency fine increase threatens speech, critics say

  • Broadcasters airing material deemed indecent by the FCC will see a tenfold fine increase under a bill awaiting President Bush’s signature.

June 9, 2006  ·   A bill to raise from $32,500 to $325,000 the penalty for broadcasting content the Federal Communications Commission finds indecent — which is headed to President Bush’s desk for his signature — threatens speech rights, critics say.

“It adds the risk that there is a serious chilling effect . . . . You start with the fact that you have a standard that’s very hard to interpret and then you say the penalty could be substantially higher than its been in the past and it increases the risk that people end up censoring what would be legal speech,” said David Solomon, former chief of the FCC Enforcement Bureau and now a lawyer in private practice.

The House passed the “Broadcast Decency Enforcement Act” Wednesday by a vote of 379-35. The Senate last month unanimously approved the bill, which caps fines at $3 million per “indecent” incident per day.

The practice of networks airing live broadcasts with a time delay, allowing stations to catch objectionable material before it hits the airwaves could increase under the new law.

“There may be news organizations that are more hesitant certainly to go out and cover a live event where they don’t have control over what might go out over the air,” said Kathleen Kirby, a lawyer at Wiley, Rein & Fielding.

Also, the threat of $325,000 per-incident fines could force broadcasters into greater self-censorship. Kirby said the reality is that “where companies might have been willing to take a risk for 32 grand they might not for 325 thousand — particularly where it’s a per-occurrence basis.”

The bill does not change FCC regulations prohibiting sexual or excretory material to be aired during the “safe harbor” hours — between 6 a.m. and 10 p.m. — when children are likely watching.

The number of FCC fines have increased sharply in recent years. In 2003, the commission levied a total of $440,000 in fines but the following year fines totaled almost $8 million, according to the FCC Web site. The FCC states on its site that it will impose monetary penalties on broadcasters “based on each indecent utterance in a broadcast, rather than proposing a single monetary penalty for the entire broadcast.”

In March, the FCC handed down the largest indecency fine in history to CBS and its affiliates — $3.6 million for a “a series of shots of a number of teenagers engaged in various sexual activities,” although no nudity was actually shown, in an episode of “Without a Trace.” The fine has since been reduced to $3.35 million dollars.

Cable and satellite operators are not regulated by FCC indecency rules.

A previous version of the bill included a three-strike provision which would have given the FCC the power to revoke the licenses of broadcasters with three or more fines.

President Bush is expected to sign the bill in the next week.

(H.R. 310; S. 193)BW

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