Entertainment Law Reporter
June 2006 Volume 28 Number 1

Congress increases penalties ten-fold for indecent broadcasts

Taking a break from its work on the war in Iraq, immigration, global warming and other life-threatening issues, Congress responded decisively to the exposure of Janet Jackson’s bare breast during the halftime show of the 2004 Super Bowl. It amended the Federal Communications Act.

In order to give the Federal Communications Commission the tools it needs to protect American television viewers from images less distinct and sexy than those they see at the supermarket checkout stand, Congress increased the penalties for “indecent” broadcasts to $325,000 per violation up to a maximum of $3 million “for any single act.” Congress did so by passing the Broadcast Decency Enforcement Act of 2005 – a brief bill that simply substitutes greater penalty amounts in place of the previous maximum.

Penalties are determined and assessed by the FCC. Until the Broadcast Decency Enforcement Act was passed and signed by the President, the most the FCC was empowered to assess for indecent broadcasts was $32,500 per violation. In the aggregate, those penalties could add up, especially for networks whose broadcasts are carried by hundreds of stations. For example, in a matter involving the television series “Without a Trace,” the FCC assessed a total “forfeiture” (the FCC’s euphemism for “fine”) of $3.6 million – $32,500 for each of the more than 100 stations that aired an offending episode (ELR 27:10:3).

But under pressure from organizations like the Parents Television Council, Congress upped the ante by empowering the FCC to assess ruinous fines against broadcasters whose programming doesn’t suit the tastes of any active and vocal group.

Broadcast Decency Enforcement Act of 2005, P.L. 109-235 (2006), available at http://thomas.loc.gov