Amendments Bedevil Indecency Legislation

Posted March 11, 2005 at 5:38pm

Ordinarily, Washington lobbyists prefer to steer clear of anything that even hints of indecency. After all, the advocacy business is about reputation and image.

But as fast-moving legislation aims to increase penalties for violating broadcast decency rules, lobbyists in the communications, broadcasting, cable and entertainment industries can’t help but get involved.

A broadcast decency bill that passed the House on Feb. 16 raises the maximum cap for fines on broadcasters from $32,500 to $500,000 and on individuals from $11,000 to $500,000.

But for many industry lobbyists, that would be the least of their concerns.

Now the action is in the Senate. Lobbyists expect a new bill to be introduced as early as this week by Sen. Jay Rockefeller (D-W.Va.) that would have much broader implications for cable and satellite programming and would likely address violence on broadcast, cable and satellite as well as sexual content such as “wardrobe malfunctions.”

The Rockefeller bill could also mandate an increase in children’s programming.

“The landscape of this seems to be shifting pretty rapidly,” said Elliot Mincberg, vice president and general counsel at People for the American Way, which opposes the legislation.

With public pressure and a new cast of characters, all sides — even those who support tighter indecency standards — are jittery about what new regulations could be approved.

Socially conservative groups such as the Family Research Council and the Parents Television Council, one of the measure’s biggest champions, are scared of any amendments or bills that take a broader approach than the House legislation, fearing that any add-ons, no matter how well intentioned, could end up being legislative cyanide.

Tom McClusky, director of government affairs for the Family Research Council, said his group doesn’t want broadcast decency legislation “drowning in amendments.”

For their part, most industry lobbyists said they are equally spooked by amendments or bigger concepts, for a different reason: They fear the legislation, which many insiders see as a shoo-in for passage, will be larded with measures that could hurt their business.

Among the amendments or stand-alone measures that worry industry lobbyists are ones that could be offered by Sens. Ted Stevens (R-Alaska), the new Commerce, Science and Transportation chairman, and Rockefeller, the panel’s second-ranking Democrat.

Stevens has indicated that he, too, would like to include cable and satellite programming under indecency rules, a major change from the status quo.

The concept of hauling cable and satellite into the decency debate has scared, and mobilized, cable players on K Street into a skirmish that previously didn’t concern them.

“Our goal,” said Brian Dietz of the National Cable and Telecommunications Association, “is to keep cable out of the broadcast decency [bill]. It raises serious First Amendment objections, plus cable technology already allows the tools for blocking programming.”

Another cable industry source called bringing cable and satellite into the foray “a solution in search of a problem.”

Preston Padden, the Walt Disney Co.’s top lobbyist in D.C., has a different perspective. Disney owns ABC, which as a broadcast company is saddled with far more regulation of content than cable channels are, including Disney’s own cable holdings such as ESPN and the Disney Channel.

“While we don’t seek regulation for any of our businesses, we believe that broadcasting and expanded basic cable should be treated the same with regard to indecency,” Padden said. “Both broadcasting and basic-cable networks are delivered as part of the same package that is now in 85 percent of U.S. homes, and there is no real difference in the consumers’ ability to block broadcast and basic cable channels.”

Tim Winter, executive director of the Los Angeles-based Parents TV group, said he fears that adding cable and satellite could cause the indecency legislation to meet a similar fate as it did last year when the bill failed.

“We are concerned again that this could be a poison pill for the whole thing,” Winter said. “We prefer that language not be added. It absolutely will delay, and could be fatal to, the measure, and we’ve been waiting for this for so long.”

Winter said his group wants separate legislation that deals with indecency on cable and satellite TV. “Although we don’t want it in this bill, we are going to be pushing this issue very strongly,” he said.

However, Frank Wright, head of the National Religious Broadcasters, downplayed the risk of adding cable and satellite measures.

When the idea of channel blockers for cable stations comes up, Wright said he laughs. “As a Christian, you hear someone say they are offended when they see the Ten Commandments. In this case, if you’re a person who is offended by material, you need to find a way to deal with it. If you’re a cable subscriber, you pay for all the channels, so it’s not really fair for you to block out five or 10 channels that you’re paying for.”

A Washington, D.C.-based satellite industry source said that “cable is up there on Capitol Hill hustling” on decency proposals, and satellite lobbyists are watching it closely.

“Should there be a mark-up or a floor vote, we will hustle it and educate it,” the source said. “Our perspective on this is it is patently unconstitutional” to include satellite or cable. “But any lobbyist in town will tell you [that] you never want to rely on the courts.”

Some groups are opposed not just to having cable and satellite included but to the entire indecency concept and are fighting hard on Capitol Hill.

Dennis Wharton, a spokesman for the National Association of Broadcasters, which represents local affiliates of the big broadcast networks and radio companies, said his group does not support any pending legislation on indecency, including a bill introduced in the Senate by Sam Brownback (R-Kan.) and Joe Lieberman (D-Conn.) that is similar to the one proposed in the House.

“We think responsible self-regulation is preferable to government regulation when dealing with First Amendment and program content issues,” he said.

In this fight, the NAB is getting support from liberal groups who have long stood up for First Amendment issues.

People for the American Way’s Mincberg said, “There is no question: This bill is a very dangerous one. It clearly raises constitutional issues on freedom of expression. Even the current indecency regime has had a tremendous chilling effect on creative freedom.”

Erik Huey, a lobbyist at Venable, represents the Creative Coalition — which has actors in town today to lobby against the legislation — as well as the Screen Actors Guild and the American Federation of Television and Radio Artists.

He said the broadcast decency bill that has already passed the House could affect elected officials, politicians and ordinary people who end up on TV.

“Broadcasting stations have a duty to know what the standards are, [whereas] the average person does not,” Huey said. “And to hold them accountable is not right.” Huey added that the average actor makes less than $24,000 a year.

“We’re working with the Senate right now because obviously that’s where the game is,” he said.

By taking a role on indecency — the first major bill to come out of Senate Commerce this year — Rockefeller is indicating he will be a player on those issues going forward, said one industry source.

“Rockefeller is emerging now as someone who is going to be critical on these issues,” the industry source said. “All these industry groups — wireless, high tech, broadcast — have got to now begin the process of cultivating a working relationship with him.”

Despite the widespread fears of amendments and a possible Rockefeller bill, some lobbyists are working hard to place provisions to the indecency legislation.

Patricia Paoletta, a partner with Harris, Wiltshire & Grannis, has a client, PSVratings Inc., that would like to see an amendment to reduce fines for broadcasters who allowed an independent rating company, such as PSV, advance access to the programming.

“It would be an encouragement to use independent ratings,” said Paoletta, a former counsel on the House Energy and Commerce Committee and one-time official at the Federal Communications Commission.

But the broadcast decency bill that passed the House doesn’t carry any such amendment. And it doesn’t seem the Senate will likely have it either.

“We see this as a conference [committee] play,” Paoletta explained.

McClusky of the Family Research Council pitted the battle as one of celebrities versus ordinary Americans.

“There aren’t too many movie stars on our side,” he said. “We will continue to work with individual Members’ offices to make sure a clean bill gets through and fast.”

If so, it would be a thank you to “values voters who helped carry the 2004 election.”