Whether or not there's a "wardrobe malfunction" at this weekend's Super Bowl, the new Congress appears ready to dramatically boost fines for indecency on the airwaves.
Bills in the House and Senate call for raising the maximum fine from $32,500 to as much as $500,000 per incident. There is strong bipartisan support in both chambers, with lawmakers saying their constituents have grown tired of coarse programming on radio and TV.
"My sense is we're not going to have any problems," said Rep. Fred Upton, R-MI, chairman of the House telecommunications subcommittee. "With passage of this legislation, I am confident that broadcasters will think twice about pushing the envelope."
A similar effort gained momentum and passed the House and Senate after singer Janet Jackson's breast was bared at last year's Super Bowl. But the legislation fizzled after unrelated issues were attached to the Senate bill and lawmakers couldn't agree on a compromise.
Some changes since then have muted the issues that scuttled last year's effort.
Sen. Ernest "Fritz" Hollings, D-SC, who wanted the bill to include a requirement that the Federal Communications Commission study violence on television, has retired.
Sen. Byron Dorgan, D-ND, wanted Congress to block media ownership rules adopted by the FCC. But a federal appeals court threw out those rules, and the FCC has decided not to appeal.
Outgoing FCC Chairman Michael Powell and all four fellow commissioners - two Republicans and two Democrats - strongly support harsher penalties for indecency violations.
The FCC began stepping up enforcement of indecency rules even before the Jackson incident, which fellow performer Justin Timberlake famously blamed on a "wardrobe malfunction." But the Super Bowl focused public attention like nothing before. Over half of the 1 million indecency complaints filed with the FCC last year were related to the incident.
Fines for indecent programming exceeded $7.7 million last year, including a total of $550,000 against 20 CBS-owned stations for the Super Bowl show. CBS is contesting the fine. Four years ago, FCC fines totaled just $48,000.
The FCC has wide latitude in imposing fines. For purposes of the Jackson case, the airing of the halftime show by each of the network-owned stations was considered a separate incident and each was fined the then-maximum $27,500. The FCC did not fine CBS stations that were merely network affiliates.
If Congress approves the huge jump in the maximum fine, it's possible that incidents like Jackson's could lead to fines in the millions or tens of millions of dollars.
Critics like shock jock Howard Stern say the FCC has gone too far in its crackdown and the government regulation amounts to a violation of the Constitution's free speech protection. Broadcasters say they are forced to guess at what constitutes indecency because the statute is so blurry. Because of the confusion and the fear of fines, some have become ultracareful.
For instance, several ABC affiliates last year did not air the World War II drama "Saving Private Ryan" over worries that violence and profanity would lead to fines, even though the movie already had aired on network TV.
"The media, looking at the bottom line, do not like to be subject to the extreme FCC fines," said Paul Levinson, chair of Fordham University's Communication and Media Studies Department. "In many ways, they are censoring themselves and that's the most tragic thing of all."
The indecency law bars nonsatellite radio and noncable television stations from airing - between 6 a.m. and 10 p.m. - indecent material such as references to sexual and excretory functions. Those are the hours when children are more likely to be watching TV.
But not all sexual and excretory references are indecent. The FCC must consider context and its decisions are subjective interpretations of the law.
The National Football League is taking no chances at this weekend's Super Bowl. Former Beatle Paul McCartney highlights the halftime show, and his every word and move will be reviewed by the league.
President Bush has indicated support for continued FCC enforcement but also alluded to the difficulty in determining what should be considered a violation.
In an interview on C-SPAN last week he said parents are "the first line of responsibility" when it came to what their children listen to and watch. But he said government should "at times, not censor, but call to account programming that gets over the line. The problem of course, is the definition 'over the line."'
Lara Mahaney, a vice president of the watchdog group, Parents Television Council, said she believes there is vast public support for tougher indecency fines.
"There has to be a financial hit" to persuade programmers to keep indecency off the air, she said. "That's the thing with breaking the law: It's got to hurt."
By Genaro C. Armas