Senator Pushes Jail Time for Broadcast Indecency

Matt O'Conner
SAN FRANCISCO — The chairman of the House Judiciary Committee told a group of cable executives this week that he thinks broadcasters who violate indecency regulations should be locked up.

Speaking at the National Cable and Telecommunications Association Conference, Rep. F. James Sensenbrenner III, R-Wis., said the current system of fines is not doing enough to curb violations.

“I’d prefer using the criminal process rather than the regulatory process,” Sensenbrenner said. “People who are in flagrant disregard should face a criminal process rather than a regulatory process.”

Sensenbrenner offered no specifics on how he would go about criminalizing violations of indecency statutes.

Under the current system, the Federal Communications Commission notifies the accused offender, who is given a specific period of time to respond to the complaint. If the offender does not or cannot provide evidence to contradict the complaint, the FCC then issues a fine.

As reported by XBiz earlier this year, the House of Representatives approved legislation to dramatically raise fines for broadcast indecency to a whooping $500,000 per violation and revoke a station’s license after three violations.

While broadcasters are forbidden to air obscene speech, which is not protected by the First Amendment, the FCC does allow indecent speech to be broadcast between 10 p.m. and 6 a.m., when children are not likely to be watching or listening.

The FCC defines indecency as material that depicts “sexual or excretory organs or activities” or that is “patently offensive as measured by contemporary community standards,” but broadcasters and free speech proponents argue that definition is vague and provides no clear guidelines to differentiate between obscenity and indecency.

“The reason we have a serious objection [to criminal penalties for indecency] is that there’s no clear definition of what constitutes indecency,” Marv Johnson, legal council for the ACLU, told XBiz.

Johnson also pointed out that current U.S. code 1464 already allows for criminal penalties for broadcasting indecent speech, but the law has not been enforced because no one seems to be able to pin down a rock solid definition of indecency.

Last year, the FCC released industry guidelines in an attempt to clear up vagaries of the law, but Johnson told XBiz that regulators continued to make contradictory rulings, including shifting positions on whether “Saving Private Ryan” should be allowed to be shown in prime time.

Since no one is quite sure what’s allowed and what’s prohibited, “you get to guess whether you’re going to jail,” Johnson said.

Newly appointed FCC Chairman Kevin Martin also weighed in on the issue at the cable and telecomm show, saying the cable industry has an obligation to take steps to cut back on what he considers rampant indecency.

Cable and satellite companies are currently sheltered from broadcast regulatory statutes, but with paid-programming providers now reaching 85 percent of U.S. homes, there is a growing movement in Congress to bring them into the regulatory mix.

Last Month, XBiz reported that Sen. Ted Stevens, R-Alaska, expressed his desire to regulate indecency on pay TV services, citing that cable TV reaches more viewers than the broadcast networks and that cable is a “greater violator in the indecency arena.”