The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Saturday, June 26, 2004

Those indecency amendments

Following up my piece earlier today:

Proof if any were necessary of the fact that the 'quality press' assumes its suckers will take what they read on trust is the fact that it usually declines to give them any help in checking their stuff.

Exceptionally will a piece on a government report or court decision include a link. And, where it comes to a cascade of amendments to an appropriations bill (such as those on FCC indecency censorship to HR 2400), the media's response is Cheney's: Fuck yourselves!

Let's try [1]: the primary amendment is Brownback's SA 3235 (which links all the secondary amendments passed - all by unanimous consent except SA 3464 (as described earlier)):

3457: states aggravating factors which, if found, are to double the per incident fine to $550,000 (subject to a daily limit of $3 million).

3464: looks virtually identical to SA 3235 (a spot the difference puzzle, evidently!).

3465: adds to 3235/3464 a screed of findings on media concentration and a provision purporting to void the FCC's new rules issued last year on the subject (court action has anticipated this result, I believe - perhaps a follow-up on the topic later).

3466: adds another screed of findings, and provides that TV violence shall not be broadcast (or carried on cable or satellite) outside safe haven hours unless it is blockable.

These last two items were, from memory, included in the version of S2056 reported out of the Senate Commerce Committee, and thought likely to cause difficulty in conference (the House bill HR 3717 is much cleaner). Anything changed on that? No idea, but it can't be much longer before we find out.

  1. Er...Let's say, another tribute to the world's copy-editors!


The text of S 2056 as reported out is fuller than the amended SA 3235.

In particular, there is no equivalent in SA 3235 of §104 of the bill which amended 47 USC 503(b)(5), which deals with forfeiture liability of (broadly) those who neither have a broadcast licence nor are applying for one.

The scheme of §503 (as relevant to indecency) is that any violation of 18 USC 1464 [1] is liable for a forfeiture penalty (§503(b)(1)(D). That includes the station operator, but also the on-air talent [2] who utters the naughty words.

§503(b)(2) quantifies the penalties for the various classes of offender; for those other than station operators, §503(b)(2)(C) says
the amount of any forfeiture penalty determined under this subsection shall not exceed $10,000 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $75,000 for any single act or failure to act described in paragraph (1) of this subsection.

So talent like - oh, Howard Stern, to pick an example purely at random - could, under the existing rules, have been fined up to $75,000 [3] a pop, in addition to the fines levied on operators for his indiscretions.

(There are procedural differences in §503 between operator and non-operator forfeitures that I'll leave aside.)

§104 would have applied an increase in the limit on fines on non-operators to $500,000.

There was, I seem to remember, some suggestion that this provision was the first to give the FCC the power to fine talent for uttering naughty words: in fact, it seems that they've had the power all along to hit Stern and Co directly. But, they haven't. Any more than they've done much fining of operators until recently.

  1. In full:
    Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both
  2. The word broadcaster is ambiguous in the context.

  3. The number may have increase a little - in the text, the operator fine is put at $25,000 a pop, whereas I know that recent fines have been $27,500. An inflation adjustment, I surmise.

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