Senate Panel approves rise in indecency fines

March 10, 2021
Hollywood Reporter
By Brooks Boliek

WASHINGTON -- Legislation that would exponentially increase the fines broadcasters and performers face for violating indecency rules moved a step closer to becoming law Tuesday when the Senate Commerce Committee approved the bill on a 24-0 vote.

The bill, as approved by the committee, would raise the base fine for indecency from the current $27,500 per incident to $275,000. Both individuals who appear on the air and the broadcast companies would face the same fines. In some circumstances, the fines could jump to a maximum of $500,000 per violation.

Under the Senate bill, broadcasters and individual performers can be fined as much as $275,000 for a first violation, $375,000 for a second and $500,000 for a third. The maximum one station could be fined was set at $3 million for a 24-hour period. A broadcaster also would face a license-revocation proceeding if it garnered three indecency violations during one eight-year license term.

While the bill targets indecent broadcasts, an amendment approved by the committee is designed to move violent programming into the late-night hours. The amendment is a variation of the violence "safe harbor" Sen. Fritz Hollings, D-S.C., has introduced in the past.

It directs the FCC to determine if the V-chip content-blocking device is working. If not, the commission is directed to institute a violence safe harbor similar to the one used for indecent programming.

Another amendment, written by Sen. Byron Dorgan, D-N.D., and adopted by the committee, would place a one-year moratorium on the new media ownership rules approved by the FCC on June 2. It directs the General Accounting Office to study whether an increasingly concentrated media industry leads to smuttier programming.

While many of the senators supported the measure and its amendments, their addition complicates passage of the bill. Sen. Sam Brownback, R-Kan., the legislation's chief author, described Dorgan's amendment as a "deal killer."

Commerce Committee chairman Sen. John McCain, R-Ariz., also warned lawmakers that amendments like Hollings' could have the same effect. Senate majority leader Sen. Bill Frist, R-Tenn., has made it clear that he is unwilling to waste a lot of time on any single piece of legislation. If a bill stands a chance of getting filibustered, he is unlikely to put it on the floor, lawmakers said.

"There are very strong feelings held by a number of senators on these issues," McCain said. "But I hope we do not lose sight that we're trying to get something signed by the president as fast as possible."

But Hollings was adamant that he at least get the chance.

"We get the bill out of committee, and (MPAA chief) Jack Valenti beats us on the floor," he told Brownback. "That Hollywood crowd doesn't give us an up or down vote, so I'm going to piggyback mine on yours. I couldn't stand by and do nothing."

The full House is expected to approve legislation Thursday similar to the bill passed by the Senate Commerce Committee on Tuesday. The House bill doesn't include amendments like Hollings and Dorgan's, but Rep. Maurice Hinchey, D-N.Y., plans to push a Dorgan-style amendment on the floor.

Rep. Fred Upton, R-Ill., chief sponsor of the House bill, said he will resist any changes.

"It is my hope that we will come to consensus and send a streamlined bill to the president to be signed into law," he said. "We have a good, common-sense bill in the House, and I look forward to its passage by the full House on Thursday."

The bills also are facing opposition from some artists' groups. The Recording Artists Coalition on Tuesday said it opposes the legislation because of the chilling effect it would have on artists' speech. AFTRA also has expressed concern about the legislation.

"RAC is deeply concerned that Congress would impose penalties against artists for simply exercising their First Amendment rights," a coalition representative said. "Artists are not FCC licenses. To extend liability to artists is a drastic change in U.S. policy and appears to be unconstitutional on its face."

As defined by the FCC and the courts, material is indecent if it "in context, depicts or describes sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the broadcast medium." Obscene speech is not protected by the First Amendment and cannot be broadcast at any time, but indecent speech can be safely broadcast during the safe harbor that runs between 10 p.m.-6 a.m.

While some lawmakers wanted to extend the fines to cable offerings, the panel narrowly rejected an amendment by Sen. John Breaux, D-La., that would do just that. Breaux's amendment, which would have made programming on the "expanded basic" cable tier face the same prohibitions as broadcast TV, lost by just one vote. The amendment is likely to come up again if the bill gets to the Senate floor.

Lawmakers have become energized on the indecency issue as there has been an increasing use of foul language on the air. Their pique over coarse programming came to a head after the Super Bowl halftime show.

"The halftime Super Bowl show galvanized the whole nation," Brownback said. "The country just said, 'Enough is enough. I'm tired of it. You've pushed me over the line.' "

Although he is worried that the weight of the amendments will sink the Senate bill, Brownback remained optimistic, calling Tuesday's bipartisan vote "a powerful signal to (congressional) leadership and the industry that we're going to move a bill."