May 19, 2006 — -- When Janet Jackson's costume malfunctioned at the Super Bowl halftime show in 2004 and exposed her for a half a second to many millions of eyes, it led immediately to a blitz of talk about indecency and regulation.
There were indignant hearings in the House of Representatives and indignant hearings in the Senate, and everyone seemed to agree -- something had to be done.
But two Super Bowls and five months after Jackson flashed America on national television, despite numerous attempts and several nearly unanimous votes, Congress has been unable to pass a law saying the fines should be hiked. The only increase in the Federal Communications Commission's indecency violation fines since the infamous 2004 Super Bowl was because of inflation, which allowed the agency to raise the penalty from $27,000 to $32,500 in September 2004.
In the latest attempt to get something done, the Senate voted unanimously late Thursday night, without fanfare, to raise the fines the FCC can levy against broadcasters by a factor of 10. Now the Senate and the House will have to work out their differences over how much the fines should be.
In the immediate aftermath of Jackson's flashing, it didn't seem as if it would take this long. The snowball of discourse on decency in broadcasting led Howard Stern to move to satellite radio, and the networks instituted several-second delays on live programming to give them a chance to weed out indecent malfunctions.
The FCC fined CBS, the network that aired the Janet Jackson costume malfunction, $550,000 -- $27,500 for each of the U.S. stations that carried the indecency.
Not enough, many thought. Bills were introduced to increase the amount of the fines -- $27,500 is a drop in the bucket for a company like CBS, the argument went. If the bill passed by the Senate had become law, the fine for Jackson's malfunction would now be more like $5 million.
That the fines for indecency have not changed does not mean Congress has not voted to increase fines. Both the House and the Senate have voted overwhelmingly since 2004 to drastically increase FCC fines.
"The rule in Washington is that offense is much more difficult than defense," said Sen. Sam Brownback, R-Kan., who has made raising the fines his personal crusade. "But we have been around this barn a couple of times, and it's time to get something done."
Thursday's vote is actually the second time they have approved the measure. In 2004, Brownback offered an amendment to the unrelated appropriations bill for Department of Defense spending. Lawmakers often add unrelated measures to the DOD authorization bill because it is a large bill that can be amended (and is difficult to oppose because it funds the troops).
And he said he reached an agreement with House negotiators in 2004 to keep the unrelated matter in the bill. But conferees from the two houses stripped the amendment out of the version eventually passed by both houses and sent to the president's desk, because it included a contentious provision that would have applied the fines to performers as well as to broadcasters and because it was not germane to defense.
Meanwhile, the House of Representatives passed a bill in February 2005 that would, among other things, raise the FCC fines to $500,000 per infraction. Only 38 of 435 members voted against the measure.
Also in 2005, Brownback introduced a bill similar to the one that passed on Thursday -- but the Republican chairman of the Senate Energy and Commerce Committee, Ted Stevens, refused to pass it out of his committee and on to the Senate floor. Stevens had said he would rather combat indecency and see the return on a $300 federal advertising campaign touting the v-chip, which allows parents to filter indecent programming.
So Senate Majority Leader Bill Frist used a procedural maneuver to sneak Brownback's bill out of Stevens' committee and onto the Senate floor, where it passed quietly by unanimous consent.
"This was a big step last night," Brownback said. But he realizes that his fight is not over. The House of Representatives passed a far broader indecency bill that fines artists as well as broadcasters and would require the FCC to consider revoking a broadcaster's license for repeated offenses. That legislation is unlikely to pass the Senate. Supporters will have to find a way to come to an agreement with the House on those other issues before raising the fines.
But Brownback remains optimistic that such an agreement could be reached by June. If not, perhaps another Super Bowl will pass before the fines are raised.
In fairness to Congress, the matter of the $550,000 fine against CBS for Jackson's malfunction is not yet settled. There is a process within the FCC for broadcasters to appeal findings against them. According to published reports, the FCC will in the next several days issue its final denial to CBS, requiring that it pays the fine. Of course, even then the recourse is not over. CBS can appeal the final FCC ruling in federal court.