WASHINGTON, DC – Addressing a Washington-based First Amendment “think tank” called the Media Institute, executive chairman of Viacom and CBS Sumner Redstone strongly criticized the Federal Communications Commission (FCC) for allowing a relatively small number of Americans to essentially dictate policy with regards to enforcement of federal broadcast indecency rules.“Unfortunately, we find ourselves in a world where, increasingly and alarmingly, a couple thousand form complaints from people condemning shows that they have never watched can result in an indecency fine 10 times higher than an year ago,” Sumner said, according to a transcript of his remarks distributed by Viacom. “In a world where these same form complaints can lead regulators to dictate business models that ultimately do more harm than good. And yes, in a world where entertainment and news executives, musicians and artists are living in a great deal of fear.”
A law recently passed by Congress and signed by President George W. Bush pushed broadcast indecency fines up to $325,000 per violation, a tenfold increase over the old ceiling of $32,500 per incident.
Redstone’s remarks came after he accepted the Media Institute’s “Freedom of Speech” Award, in reference to FCC data that shows that majority of indecency complaints originate from two groups; the Parents Television Council (PTC) and the American Family Association (AFA).
CBS has come under much fire from the FCC, largely in response to Janet Jackson’s much-ballyhooed “wardrobe malfunction,” an incident for which the FCC proposed a fine of $550,000. The FCC also levied a fine of $3.3 million for an episode of the CBS drama Without a Trace, which contained a scene depicting the rape of a teenager.
The FCC declined to fine Viacom in response to an episode of the Early Show, saying that the incident took place prior to the commission’s recent rule changes regarding “fleeting expletives.”
Redstone argued in his comments that such fines are an unnecessary measure, because the free market is the proper arbiter of what speech is deemed acceptable to the public.
“If the public is not happy with a particular program, then they won’t watch it, and it will go off air,” Redstone said. “Government censorship – and by this I mean imposing any kind of burden or penalty on those who publish protected speech – circumvents this process.”
Redstone added that such burdening of protected speech is “particularly pernicious not only because it is prohibited by the Constitution, but also because it can be abused by the government.”
Ultimately, Redstone argued, such regulation on the part of the government serves to subvert the essence of democracy, rather than strengthen it.
“Give the government the tools to punish those it doesn’t like or silence what it doesn’t want to hear, and you undermine democracy,” Redstone said. “Give people the tools to choose what they see and hear, and you enhance democracy.”
In a related piece of news, the FCC rejected a challenge to the Consent Decree the Commission signed with Viacom, a decree that was subsequently adopted by the FCC in November 2004. The challenge was brought by two “decency” organizations, the Right to Decency and the American Decency Association.
As part of the consent degree negotiated by the FCC and Viacom, “Viacom admitted that some of the broadcast material at issue in the forfeiture orders, and certain other programming that was the subject of the pending complaints and ongoing investigations, is indecent and in violation of section 73.3999 of our rules, agreed to make a voluntary contribution of $3,500,000 to the United States Treasury, and adopted a ‘company-wide compliance plan for the purpose of preventing the broadcast of material violative of the indecency laws,;” the FCC states in its Order of Reconsideration, adopted on October 10 and issued publicly earlier this week.
In addition, according to the FCC, Viacom “waived any and all rights to contest the validity of the Consent Decree or the Order.” In return, the FCC agreed to “rescind, vacate and cancel the forfeiture orders, terminate its pending inquiries into possible indecency violations by Viacom stations, and dismiss all but certain specified indecency complaints against Viacom.”
As part of the Consent Decree, the FCC also “agreed not to use the facts of the Consent Decree, the forfeiture orders, the pending inquiries or complaints, or any similar complaints regarding programming aired before the Consent Decree’s effective date for any purpose relating to Viacom or its stations,” and to treat “all such matters as null and void.”
The two decency groups issued a challenge to the Consent Decree, arguing that the FCC had “essentially allowed Viacom to purchase a finding of basic character qualifications,” and that “the Order was ultra vires [meaning “beyond power” or “transcending authority” – Ed.] because it prevented the Commission from considering Viacom’s apparent indecency violations in making the statutory determination whether grant of Viacom’s pending renewal applications would serve the public interest,” according to the FCC’s Order of Reconsideration.
The decency groups also maintained that the Order was “illegal as inconsistent with Commission precedent, because it required the agency to “ignore a significant portion of [Viacom’s] record during the relevant renewal period in passing on a renewal application,” according the FCC.
In its Order of Reconsideration issued this week, the FCC states that the Commissioners “disagree with Petitioners’ contention that we lack the requisite authority to have settled our indecency enforcement actions against Viacom by means of the Consent Decree.”
“As a general matter, an agency is presumed to have the discretion to settle or dismiss an enforcement action,” the FCC states in its Order of Reconsideration. “In addition, the Act provides the Commission ‘broad discretion’ to settle enforcement actions. Here, we appropriately exercised that discretion by means of the Consent Decree, under which Viacom admitted that its stations had broadcast indecent material in violation of the Commission’s rules and agreed to substantial remedial obligations, including making a $3,500,000 voluntary payment to the United States Treasury and adopting and implementing a multi-year compliance plan designed to prevent future indecency violations.”
“Our agreement in return to terminate the pending enforcement actions against
Viacom, and not to consider the facts related to such actions in connection with other Viacom applications, ‘simply represents the quid pro quo that the agency found necessary to procure’ Viacom’s agreement to resolve these matters,” the FCC states in the Reconsideration Order, adding that these “undertakings were within our broad discretion to settle enforcement actions.”
Finally, the FCC also rejected the petitioners’ contention that the Consent Decree is “illegal,” and the claim that the FCC had “ignore[d] a significant portion of a broadcaster’s record during the relevant renewal period.”
In entering in to the Consent Decree, the FCC states in its Order of Reconsideration, “we did not ignore the potential character issues raised by Viacom’s apparent indecency violations, as Petitioners suggest.”
On the contrary, the Commission contends in the Order, “we fully considered all potential basic qualifications issues raised by Viacom’s apparent indecency violations and specifically determined that they did not raise substantial and material questions of fact as to whether Viacom possesses the requisite qualifications necessary to be a Commission licensee.”
“Had we not so concluded,” the Order continues, “we could not have agreed to the provisions of the Consent Decree regarding our use of the facts here in connection with future applications. Having already fully considered those matters, we need not reexamine these issues in a different proceeding.”
The Commission also asserts that the Consent Decree was “consistent with the record before us,” and that the decision is “also consistent with past Commission practice because our concern in evaluating the impact of wrongdoing on a licensee’s character is the licensee’s probable future behavior.”
“Viacom’s acknowledgment in the Consent Decree of responsibility for violating indecency restrictions is a step towards ensuring that it does not repeat such violations,” the FCC states in the Order. “Likewise, the company-wide Compliance Plan which Viacom agreed to implement as part of the Consent Decree will help to avoid such violations.”
For the full text of the FCC’s Order of Reconsideration, go to: http://www.fcc.gov/eb/Orders/2006/FCC-06-153A1.html.
