CBS Fined Record Amount for Superbowl Halftime Broadcast

TERENCE SMITH:

The CBS network, already dealing with the controversy over disputed documents used by its news division, got more bad news yesterday.

The Federal Communications Commission fined the broadcaster a record $550,000 for its Super Bowl halftime show, site of Janet Jackson's now infamous "wardrobe malfunction," which exposed her right breast.

The FCC decided the performance was "in apparent violation of the broadcast indecency standard." It was a moment of rare unanimity for a commission deeply divided along partisan lines.

The fine, which the network has 30 days to pay or appeal, was levied against CBS' 20 owned and operated stations — $27,500 each, totaling $550,000. CBS is owned by the media conglomerate Viacom, and that factored into the FCC decision.

The commission cited Viacom's ownership of Infinity Broadcasting, and its "history of indecency violations" levied against Infinity's syndicated Howard Stern Show. The popular radio personality has had a decades-long battle with the FCC over the content of his program.

Meanwhile, a pattern of apparently self-censorship has taken hold among broadcasters. Five-second and longer delays are now the norm for awards programs and some sporting events. Entertainment television producers have also cited far more stringent attention to sexual content by over-the-air broadcasters as they devise their fall TV lineups.

A new study out today from the Kaiser Family Foundation says two-thirds of parents want government to restrict violent and sexual content on television.

Congress has not addressed that constitutionally sensitive issue, but there are measures pending in both Houses to increase tenfold the fines for programming labeled indecent.

TERENCE SMITH:

Joining me now are Congressman Fred Upton, Republican from Michigan, who is chairman of the Telecommunications Subcommittee at the House Energy and Commerce Committee; and Jonathan Rintels, the executive director of the Center for Creative Voices in Media, a nonprofit organization that represents writers, directors, and others who produce programming. CBS was invited to join this discussion, but said it was studying the FCC decision and declined to participate. Gentlemen, welcome to you both.

Fred Upton, let me ask you first what you think of these fines, whether you consider them justified and appropriate.

REP. FRED UPTON:

Well, you've got to remember that this didn't even cover the amount of money that CBS collected for a 30-second ad. And it's under the old standard. These rules have been under the books for a long time. The fines were established decades ago.

The Supreme Court actually ruled on this very issue as to whether or not the FCC had the ability to fine for indecent material; the answer was yes.

And we have now passed legislation… we actually started working on this issue last year, way before the Super Bowl. On a bipartisan basis we actually raised the fines by 20-fold over what they can do today.

Remember, this is… these current fines were under the old standards. We didn't touch the standard. The standard stays exactly the same. Every one of the commissioners of the FCC, Republican or Democrat, begged us to increase the fines. That's what we did.

We passed it out of our committee 49-1, obviously clear bipartisan support. We passed it on the House floor 391-22, obviously wide bipartisan support.

And in a vote that even John Kerry and John Edwards made, they passed virtually the same bill, a little bit different, 99-1 in the Senate back in July. So right now we're in a conference between the House and the Senate. There are differences between the two.

I am very hopeful and optimistic that we can grapple with those differences and come back with a bill and get to it the president's desk before too long.

TERENCE SMITH:

All right, we'll talk about… a little further about the legislation in a moment. But Jonathan Rintels, what's your view of the fines imposed by the FCC?

JONATHAN RINTELS:

Well, we think they're not an appropriate response to the issue of indecent material on television. And I'm not here to defend indecent material. In fact, in my other full-time job as a parent of two young children, watching the Super Bowl halftime show, we turned it off about ten minutes before Janet Jackson ever took the stage.

So I share the outrage and the feeling that the Super Bowl halftime show was inappropriate with the congressmen and with the FCC commissioners. The question is how best to deal with indecent or offensive material.

We think that the government regulation of the content of the speech that goes out over the air is constitutionally dangerous, and in fact is censorship, and in fact censors a great deal of wholly appropriate and decent speech that unfortunately the American public will not be able to see because of these actions.

TERENCE SMITH:

Fred Upton, what about that? Is it… "a," is it censorship? And "b," is there a risk that it's too broad?

REP. FRED UPTON:

No, it's not. I'm not going to buy into that argument at all. The standards are pretty clear. You can't use the "f" word. You can't talk about sex or conduct real live sex acts, as we've seen as you look actually at the transcripts, that the FCC has fined over-the-air broadcasters.

Remember, this does not apply to cable, does not apply to satellite, because that's not the taxpayers' airspace; over-the-air broadcast, radio and TV, is.

And that's why the restrictions are in place. They've been affirmed by the highest court of the land, so in fact they are constitutional, and they say, "look, during the hours of between 6:00 in the morning and 10:00 at night when kids are likely to watch, whether it be a Super Bowl or anything else, you cannot do this."

TERENCE SMITH:

Jonathan Rintels, do you agree that that line is clear, that producers and creators understand what's permissible and what's not?

JONATHAN RINTELS:

No, I don't. And in fact, the FCC doesn't agree that the line is clear. I attended a session where FCC representatives were on a panel at the National Association of Broadcasters' Convention a few months ago, in which the first ten minutes of the groundbreaking miniseries "Roots," which was broadcast in 1977, were shown on the screen, and the FCC representative was asked point-blank: Would the FCC today consider this obscene or would it not consider it– indecent, excuse me– or would it not consider it indecent?

And he would not answer the question; he could not answer the question.

Now, the first ten minutes of "Roots," as many of your viewers may recall, since it was so widely viewed, is a historically accurate representation of life in an African village, and therefore it does include nudity and other potential violations of these new indecency standards.

So how, as a creative artist, are we… as creative artists are we supposed to react when not even the FCC can tell us when a historical television show is indecent?

TERENCE SMITH:

Well, what's the answer to that, Congressman?

REP. FRED UPTON:

Let's look at the real facts here, and that is when you read what the FCC has fined the broadcasters for, most of it radio — a few TV, as we saw with the halftime show this week with the fine coming out — you read the transcripts, you see what's been aired, you look at the panel, the Republicans and Democrats on that five-member panel, virtually… in this case again, a unanimous decision.

They all lamented that they couldn't raise the fines even higher, which is only what our legislation does that we passed in the House. But you read some of those transcripts and you say, "no way should this stuff be on the air." I'm a dad, too. I've got two teenagers, and it should not be on over-the-air broadcast. And the pattern is pretty clear. The broadcasters know. In fact, some of them now have put out a warning. "If in doubt, leave it out" were the words that some of them used.

It's pretty apparent what's going to be fined and what's not. I don't think there's a person out there that didn't think that CBS would be fined for the Janet Jackson expose. They apologized to the country for it, we had hearings about, and it no way should it have been aired, and they're paying a price. But you know what? That price under today's standards isn't even the cost of a 30-second commercial.

TERENCE SMITH:

All right. Jonathan Rintels, the FCC says it got 500,000 complaints about this from viewers. And we have the Kaiser Family Foundation study today saying two-thirds would like to see some regulation. Doesn't that suggest that there's a problem here?

JONATHAN RINTELS:

I think there is a problem. The question, as I said earlier, is how best to address it. Now, we think there are many more constitutionally appropriate ways of addressing it that actually empower the audience, empower the consumer to avoid indecent content.

For example, the ability to take cable channels on an "a la carte" basis so they're not forced to take, say, an MTV that they may find indecent or offensive. We also think that policymakers at the FCC and in Congress ought to really take a much more careful look at the root cause of indecent programming, and we believe one of those root causes, as the FCC alluded to in discussing Viacom, is media concentration.

After all, the Super Bowl halftime show is really the poster child for the dangers and the evils and the… of the synergies that come from media concentration.

TERENCE SMITH:

Jonathan Rintels, and Congressman Fred Upton, thank you both very much.

REP. FRED UPTON:

Thank you.

JONATHAN RINTELS:

Thank you very much.