Get these fascists out of here.
http://www.nytimes.com/2004/12/23/ar...=all&position=
Indecency on the Air, Evolution Atop the F.C.C.
By STEPHEN LABATON
Published: December 23, 2004
WASHINGTON, Dec. 22 - Shortly before becoming chairman of the Federal Communications Commission nearly four years ago, Michael K. Powell said it was time to eliminate the double standard that allowed the government to subject broadcasters, unlike their competitors in cable and satellite television, to indecency and other speech regulations.
At the time, Mr. Powell received a Freedom of Speech Award for advancing what broadcasters and civil liberties groups viewed as a courageously principled position. Now, he is being harshly criticized for significantly expanding the indecency rules. He blames a quest for higher ratings for the "increasing coarseness" of programming by broadcasters, who are struggling to compete for audiences with their less restricted and at times racier rivals.
As Mr. Powell nears the end of his time in office, critics say he has evolved into the most heavy-handed enforcer of speech restrictions in decades. But with Mr. Powell now widely expected to step down, they are hardly gloating about the prospect of his departure; the short list of candidates to succeed him includes another Republican member of the five-person commission, Kevin J. Martin, who - echoing those who say television is too tawdry - has repeatedly argued that the commission and Mr. Powell are not tough enough.
But the broadcasters are also beginning to fight back. In recent weeks, the industry and its supporters - including the screenwriters', actors' and directors' guilds and the American Civil Liberties Union - have filed a series of briefs contending that the commission's indecency decisions are inconsistent, vague and unconstitutional.
And the Media Institute, which gave Mr. Powell that award five years ago, when he was a commission member, has posted lengthy commentaries on its Web site saying that under him the commission has chilled speech in violation of the First Amendment. The institute, a research organization devoted to free speech, is supported by media companies and lawyers who represent them.
"Chairman Powell has traveled from an enlightened position of First Amendment values for a regulatory agency that dances around the edges of content regulation quite commonly," said Bruce W. Sanford, a First Amendment expert and media lawyer at Baker & Hostetler in Washington and co-author of one of the commentaries. "During the course of his tenure, he's done this swing in line with popular and political sentiments to a different place, which is more restrictive."
The F.C.C. says that in the last year - an election season punctuated by Janet Jackson's bared breast at the Super Bowl halftime show and the rise of racy programming like ABC's "Desperate Housewives" - it has received more than a million indecency complaints, up from 111 in 2000, the year before Mr. Powell became chairman. (In all but the Jackson incident, officials said, 99 percent of the complaints have been traced to the Parents Television Council, an advocacy group that fights what it sees as sex, violence and profanity on television and in movies.) Fines in 2000 totaled $48,000; so far this year, they exceed $7.7 million.
NBC said recently that the F.C.C. had asked it to turn over tapes of the opening ceremonies of last summer's Olympics in Athens, which included scantily clad actors and actresses portraying Greek gods and goddesses. Agency officials declined to identify the nature or source of the complaint and said they needed to review the tape before deciding whether to open an inquiry.
Viacom, which owns CBS, is challenging a $550,000 fine for the Super Bowl broadcast, but its executives and others in broadcasting have generally avoided assaulting Mr. Powell directly on the decency front. The industry has an ambitious regulatory agenda - freeing the networks to own more stations and media companies to own both newspapers and television stations in the same market - and Mr. Powell has been its most powerful ally.
Mr. Powell and his aides say he has been consistent and has an obligation to enforce indecency rules that enjoy broad bipartisan support. If anything has changed, they say, it is that radio and television broadcasters have pushed the boundaries of the law in what Mr. Powell has called "the relentless race for ratings," and in the process offended large segments of the country.
A close reading of Mr. Powell's speeches and statements over the last six years suggests, however, that his views have evolved. Once an unbridled libertarian who championed the abolition of restrictions and expressed little confidence in the government's ability to oversee the media, Mr. Powell, 41, has become an aggressive enforcer who has expanded restrictions on broadcasters.
Lately, he has repeatedly praised the commission for issuing record fines. The politically appointed commissioners have overruled their staff to toughen the indecency standard - taking what they call "a new approach to profanity" - so that a single fleeting utterance of an expletive is subject to sanctions. And the commissioners have taken most of the decision-making about penalties away from career officials and into their own hands.
In response, broadcasters' strategy has been to hope, in effect, for a backlash to the backlash. They say that judges will ultimately strike down either the indecency rules or the commission's application of them. Their hope is that the courts will be bothered by self-censorship of shows like "Masterpiece Theater," which deleted potentially offensive language from its detective drama "Prime Suspect" over the summer, and some ABC affiliates' refusal to broadcast "Saving Private Ryan" last month on the eve of Veterans Day for fear of running afoul of the commission for the same reason. That hope is buoyed by the fact that the Supreme Court has struck down indecency restrictions that Congress tried to impose on the Internet.
"We'll eventually have a court correct all this," said Kurt A. Wimmer, a lawyer at Covington & Burling in Washington, which represents a number of broadcasters in disputes with the commission. "But the amount of damage between now and when a court rules is significant."
Mr. Powell's shift became apparent nearly a year ago, after the House and Senate adopted resolutions critical of an F.C.C. staff conclusion that Bono, the lead singer of U2, did not violate any indecency regulations by uttering an expletive after winning a Golden Globe Award on NBC; ultimately, the commission overruled that decision. Mr. Powell became significantly more outspoken on the issue after the Super Bowl episode, repeatedly emphasizing how the commission was "wielding our sword" to protect children, among other things.
Commission officials and friends of the chairman, along with industry lawyers, say Mr. Powell - who declined four requests to discuss the issue - concluded that he could not carry on his fight against the indecency rules and also survive politically to carry out the rest of his agenda."Michael Powell was forced to have to make a political compromise against his will and his own better judgment," said Andrew Jay Schwartzman, president of the Media Access Project, an advocacy organization devoted to diversity on the airwaves that has opposed Mr. Powell in both indecency proceedings and the commission's efforts to relax media ownership rules. "He made political judgments that they would have to come down tougher to save other issues on his agenda."
Other lawyers and commission officials noted that Mr. Powell had been sharply criticized, particularly by a Democratic commissioner, Michael J. Copps, as too soft on indecency complaints.
Mr. Powell has said that he has never shifted his approach and is obliged to enforce the law, even if he was critical of it earlier in his career. Commission officials said his views on the subject were clear from a Dec. 3 article he wrote on the Op-Ed page of The New York Times. The article, carrying the headline "Don't Expect the Government to Be a V-Chip," emphasized that he had no option but to enforce the law, which "continues to enjoy strong bipartisan support."
But Mr. Powell has also made light of the subject, and he has suggested to friends that he would not be upset if the courts ultimately struck down the laws he was enforcing.
In remarks this month at the annual Chairman's Dinner of the Federal Communications Bar Association in Washington, he repeatedly joked about indecency issues. He suggested that the National Association of Broadcasters should be renamed "the National Association of Booty" and that ABC be renamed "Desperate Network," a takeoff on "Desperate Housewives." In a videotaped interview with James Lipton of "Inside the Actors Studio," Mr. Powell wrote Mr. Lipton an "indecency ticket" after he uttered a profanity. "You can pay that by credit card," he told Mr. Lipton.
Mr. Powell and his colleagues have also denied that the commission's recent stream of opinions on indecency are inconsistent. David Solomon, head of the commission's enforcement bureau, said each decision looked closely at the context in which words were used to discern whether they violated the rules. He also said the commission's rejection of a number of complaints was evidence of its balanced approach.
But industry lawyers said the different outcomes showed the commission's arbitrariness. "The agency's decisions now tend to be so ad hoc by their very nature," Mr. Sanford said. "It's hard to find a common thread or say, 'This is the line.' "
These are some of the decisions that have stirred debate:
On Oct. 12, the commission proposed to fine 169 stations for broadcasting the April 7 episode of Fox's "Married by America," which it said involved partygoers licking "whipped cream from strippers' bodies in a sexually suggestive manner" (Fox noted that none of this occurred on camera) and showed a man in his underwear being "playfully spanked" by two female strippers.
In August, the commission denied a complaint against NBC's "Will & Grace" for an episode that the agency said showed two women kissing and then rubbing against each other to simulate intercourse. The agency also denied a complaint against an episode of UPN's "Buffy the Vampire Slayer" after the Parents Television Council complained of a scene in which Buffy kissed and straddled a man after the two fought.
On Nov. 23, the commission declined to penalize Fox for the June 10, 2003, episode of "Keen Eddie," in which three men hired a prostitute to "extract" semen from a horse for the artificial insemination of another horse. Part of the rationale for denying the complaint was that the prostitute was "never seen actually touching" the horse. It also declined to penalize affiliates of NBC for broadcasting episodes of the show "Coupling" that contained a series of scenes with suggestive dialogue. And it declined to penalize the WB network for an episode of "Off Center" that featured a graphic discussion about male genitals.
The Parents Television Council says the decisions show that the commission has not been sufficiently aggressive. And Commissioner Martin, one of three people often mentioned as a likely successor to Mr. Powell, has written opinions in several cases saying that the agency had not issued severe enough penalties and was wrong to dismiss some cases, including the "Keen Eddie" complaint.
But the decisions have troubled some of Mr. Powell's admirers, too.
"In the case of Michael, I feel more sad than angry, because I have such great respect and affection for him," said Patrick D. Maines, president of the Media Institute. "He was not only saying the right things. He was saying them at the F.C.C. better than anyone else there was saying them."
-Rudey
Hybrid Mode
