What began as a “wardrobe malfunction” at the 2004 Super Bowl has now escalated into an uncertain future for terrestrial broadcasters who must program their stations under the threat of vastly increased FCC fines.
Though passage of the Broadcast Decency Enforcement Act was an easy vote for politicians (House 379-35) in an election year, the increased fines are expected to heighten the contrast between what viewers see on the public airwaves versus pay television channels.
Under the legislation, the FCC can levy up to a $325,000 fine for each incident that it deems indecent. That's up from a previous top fine of $32,500.
The rub for terrestrial broadcasters is that the new legislation does not apply to its cable or satellite competitors, who — by not using the public's airwaves — are not subject to FCC rules on the content they distribute.
Critics of the legislation, including all the networks and the creators of nationally distributed television programming, not only predict that premium programming will migrate to pay platforms, but that terrestrial broadcasting will become so bland that it will drive audiences away from the traditional broadcast platform.
In an editorial titled “Big Fines, Little Sense,” the Chicago Tribune noted how stations, under the old fines, refused to broadcast the World War II drama “Saving Private Ryan” for fear of running afoul of the FCC. The new law, the newspaper predicted, “will hasten the move to scour TV of powerful programming in favor of pabulum.”
The new fine structure, the newspaper continued, “is only going to create more fear and more timidity among broadcasters. We're not talking about protecting you from Janet Jackson's breast. That's pretty assured already. We're talking about removing from television some films and programs that have great value, but just might cost the local station a whole lot of money, courtesy of the FCC.”
The NAB, who opposed the legislation, soft pedaled the legislation's passage, saying only that it would prefer that the nation's 13,000 radio stations and 1700 TV stations police themselves. “Self-regulation is preferable to government regulation,” said Dennis Wharton, the NAB's spokesman.
Other detractors warned that the new law would erode First Amendment rights. “What is at stake here is freedom of speech and whether it will be nibbled to death by election-minded politicians and self-righteous pietists,” said Rep. Gary Ackerman, (D-NY).
So far, there's been little public reaction to the legislation from network executives or word of how they will respond to the law.