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Lawmakers Send Decency Dispatch: Self-Regulate or We'll Legislate

The leaders of the Senate Commerce Committee told a roomful of media lobbyists to come up with their own solution for content indecency--toot sweet--or Congress would do it for them.

"If you don't come up with an answer, we will, and sadly, when we do, it's not always the right answer," Sen. Dan Inouye (D-Hawaii) said at a decency forum on Capitol Hill Nov. 29.

Inouye, along with committee co-chair Sen. Ted Stevens (R-Alaska), acknowledged that anything Congress does to regulate content will likely benefit lawyers more than anyone else because of the First Amendment implications. However, lawmakers are in a pickle over media indecency. Public complaints have increased manifold while four content bills languish in the Senate for lack of votes.

One bill, H.R. 310, increases fines from $32,500 to $500,000 for each violation up to $3 million a day, and mandates license revocation hearings and performer fines. S. 193 also increases fines; S. 616 addresses content violence, and S. 946 requires "kid friendly" programming. None of the bills have the necessary 60 votes to pass the full Senate.

Stevens indicated he'd like to roll everything into a single content bill to be taken up when Congress returns from the holiday recess. He implored forum participants to strike an accord on the use of ratings and existing blocking technology such as the V-chip, but one man's perversion was another's artistic freedom. Brent Bozell, head of the Parents Television Council, described a Wagnerian medium rife with "bestiality, necrophilia and incest."

Bozell argued that ratings and the V-chip merely made matters worse.

"As soon as we got TVMA," the rating for Mature Audiences Only, "we got 'South Park,'" Bozell said. "The V-chip has allowed some who want to push the envelope to be protected."

David Kinney, CEO of PSV Ratings, a firm pushing a statistical model for rating TV content, wondered who killed Kenny. "I like 'South Park,'" he said. "I think it's funny."

Jack Valenti, former chief of the Motion Picture Association of America, said Bozell was "exaggerating," and responded with a homily about subjectivity.

"There's no way we can do what Brent wants, to scour the airwaves of anything that offends his sense of indecency."

He also questioned the impetus of the whole indecency outcry--the brief appearance of Janet Jackson's breast at Super Bowl XXXVIII.

"And what's all this about? Three seconds of a fake breast? This is out of hand," he said.

FCC Chairman Kevin Martin dropped the bomb of the day when he said the commission boo-booed its findings on cable and DBS a la carte. The original report, issued a year ago under the Michael Powell regime, concluded that allowing subscribers to buy individual channels would cost them 14 to 30 percent more than the channel packages currently available.

"The staff is now finalizing a report that concludes that the earlier report relied on problematic assumptions and presented incorrect and incomplete analysis," Martin said.

The chairman cited three main flaws in the original report: a 25 percent drop in viewership; cost-per-channel calculations that ignore free broadcast channels; and an assumption that every cable household would need a new set-top box.

"Nowhere does the first report mention that... if we ignore additional set-top box costs, as would be appropriate if a la carte pricing were only imposed for digital cable systems with appropriate set-top boxes in place, then a la carte pricing could result in a 1.97 percent decrease in consumers' bills," Martin said.

Martin presented a la carte as a possible alternative to channel blocking and other content control schemes. Without overtly using a la carte as a lever, he reiterated his desire to see cable and satellite providers create "family-friendly" programming tiers.

The poker-faced chairman then left the forum with a pack of reporters on his heels before cable chieftain Kyle McSlarrow could whip up a reply. In a brief impromptu press conference on his way out, Martin stopped short of saying he supported a la carte pricing, only that the report deserved further scrutiny. He also said that some type of decency standard should apply to basic cable packages.

McSlarrow, no stranger to political throttlings, said a la carte was "clearly a violation of the First Amendment."

He also noted that cable has done back flips to provide channel- and content-blocking capabilities and information to subscribers.

"It's four clicks and a scroll on a remote," he said. "It's not a heavy lift."

McSlarrow's counterparts from the American Cable Association and DirecTV, Matt Polka and Dan Fawcett, elected not to address the a la carte threat but instead harped on retransmission consent. Both said their constituents were forced to take unwanted and sometimes inappropriate content in order to get retrans for local broadcast stations.

Both Preston Padden of ABC and Marty Franks of CBS said no multichannel provider was forced to take anything.

"I negotiate retransmission," Franks said, "and I'm in retransmission negotiations with several of Matt Polka's members. We have offered the option of a cash fee for the broadcast affiliate; they've come back and said they won't pay for the network, but they'll pay for other channels."

Stevens said he was nonetheless "disturbed" by what he'd heard.

"If we're getting to the point where retransmission consent is used as a lever to compel stations to take content that they don't want to take and the viewers don't want, then I think Congress is going to have to take a good hard look at that," he said.

Stevens said the decency debate would continue when Congress reconvenes Dec. 12.