Congress gave notice to broadcasters Wednesday that they will pay dearly for crossing the line with offensive material like Janet Jackson's 2004 Super Bowl "wardrobe malfunction," passing legislation that would multiply indecency fines 10 times.
The 379-35 House vote on the Broadcast Decency Enforcement Act sends the bill to President Bush for his signature. The bill, which already passed the Senate, increases the top indecency fine the Federal Communications Commission can levy from $32,500 to $325,000 per incident. Mr. Bush is expected to sign it.
The measure, given impetus by Jackson's momentary exposure during the Super Bowl halftime show, was an election-year priority of conservative groups.
"Those who abuse the public airwaves by airing sexually graphic material will now be subject to greater fines, a much better deterrent than the current paltry fines," the Parents Television Council, an aggressive critic of indecency on the public airwaves, said after passage of the Senate bill.
Rep. Fred Upton, R-Mich., a chief supporter of the legislation in the House, said the tenfold increase in fines to get "the filth and triple-X smut off the public airwaves" was appropriate when a 30-second commercial aired during this year's Super Bowl cost $2.6 million, or $86,000 a second.
The bill does not apply to cable or satellite broadcasts, which are not included in FCC rules on public broadcasts, and does not try to define what is indecent.
The FCC recently denied a petition of reconsideration from CBS Corp.-owned stations facing $550,000 in fines over the Janet Jackson breast-revealing incident at the 2004 Super Bowl.
Under FCC rules and federal law, radio stations and over-the-air television channels may not air obscene material at any time, and may not air indecent material between 6 a.m. and 10 p.m. when children are more likely to be in the audience.
The FCC says indecent material is that which contains sexual or excretory material that does not rise to the level of obscenity.
The legislation, while facing little resistance in Congress, had detractors warning of problems in defining what is indecent and of the erosion of 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," Rep. Gary Ackerman, D-N.Y., said in a statement. He recalled how after the Super Bowl incident, numerous ABC affiliates refused to air the acclaimed war movie "Saving Private Ryan" because of its rough language.
Jeremy Harris Lipschultz, School of Communication director at the University of Nebraska at Omaha, said that while the heavy fines may have some short-term effects, broadcasters ultimately will go with edgy programs that audiences want. "Broadcasters are in the business of attracting audiences so they are going to be under pressure to find the edge of that envelope."
The National Association of Broadcasters said it would prefer to see the nation's 13,000 radio stations and 1,700 TV stations police themselves. "The NAB position is that we think responsible self-regulation is preferable to government regulation in areas of program content," spokesman Dennis Wharton said.
Since the 2004 Super Bowl incident, many broadcasters have voluntarily policed their broadcasts through means such as five-second delays on live broadcasts.
The legislation, sponsored in the Senate by Sen. Sam Brownback, R-Kan., does not go as far as a bill sponsored by Upton that the House passed last year. That measure would have increased the maximum fine to $500,000, allowed fines for individual performers and given the FCC the authority to revoke the licenses of broadcasters fined three or more times.
The FCC has also actively responded to the increase in complaints about lewd material over the airwaves, with total fines jumping from $440,000 in 2003 to almost $8 million in 2004.
The agency recently handed down its biggest fine, $3.3 million, against more than 100 CBS affiliates that aired an episode of the series "Without A Trace" that simulated an orgy scene. That fine is now under review.