Indecency Proposal Getting Static From Cable

Whether depicting intimate acts on HBO’s “Sex and the City” or uttering a single four-letter expletive 162 times in one episode of Viacom Inc.-owned Comedy Central’s “South Park,” cable programmers have long sought to lure subscribers by dramatizing the very things that federal regulations prohibit on broadcast television.

But now, the creative innovation and sexual explicitness that have distinguished the cable business are placing it at the center of the nation’s cultural hot zone: the debate over indecency.

As industry leaders gather here at the annual National Cable & Telecommunications Assn. conference this week, a possible crackdown on cable content is weighing heavily on their minds.

“It’s scary,” said one cable executive, referring to a proposal last month by Sen. Ted Stevens (R-Alaska) to apply broadcast indecency rules to cable. “We don’t really know what he’s thinking.”

“It’s raised everyone’s antenna,” said another executive, who was reluctant to be quoted saying anything that seemed confrontational. “You’re a little more careful now.”

Historically, the cable industry has been immune to indecency regulations because it does not use the public airwaves, instead relying on private networks and requiring viewers to subscribe. Then, Janet Jackson’s breast-baring incident at last year’s Super Bowl unleashed a broad public outcry about explicit entertainment, prompting Congress to propose raising indecency fines on broadcasters.

With cable and satellite TV now reaching 85% of all U.S. homes, the question in Washington has become why broadcasters alone should face such penalties. And that’s bad news for the cable industry.

If a compromise cannot be reached, cable executives here warn, some of America’s most-watched shows could become targets, including such “basic” cable offerings as “Nip/Tuck” on News Corp.’s FX and Nickelodeon’s “SpongeBob SquarePants,” which some critics allege promotes a gay lifestyle. Premium cable channels, such as HBO and Showtime, could also face restrictions.

“Viewers are in jeopardy of losing some of their favorite programming unless they speak up,” said Johnathan Rodgers, a longtime television executive who is now chief executive of TV One, a cable channel aimed at African Americans. The 5 million people who watch FX’s “The Shield,” for example, “should let their congressmen know, because other people are labeling it indecent,” he said. “That’s a judgment call.”

Stevens, the 81-year-old lawmaker, has emerged as a leading critic of cable since January, when he became chairman of the Commerce Committee, which oversees the broadcast industry. In March, he vowed to take on cable programmers who argue that any attempts by Congress to rein in cable would run counter to constitutional guarantees of 1st Amendment rights that have been upheld by the courts.

“We wonder why our children are sexually active at a young age,” Stevens said in a speech to the National Assn. of Broadcasters. “The public airwaves are increasingly promoting sex ... Cable is often worse.”

At the NCTA convention Sunday, Stevens seemed to strike a more conciliatory tone. After a demonstration of so-called blocking technology, which allows parents to control what their kids see, sources said Stevens said, “You’re farther along than I thought.”

But Stevens is not the only advocate of possible cable restrictions. Another is Kevin J. Martin, the new Federal Communications Commission chairman, who previously has backed the voluntary creation of a family-friendly tier of cable channels that could be offered to consumers -- a measure Stevens supports. It is unclear, however, who would decide which channels would be eligible.

The FCC currently defines broadcast indecency as material that depicts “sexual or excretory organs or activities” or that is “patently offensive as measured by contemporary community standards.” The rules are enforced on programs airing from 6 a.m. to 10 p.m., when children are more likely to be watching.

Martin, who will discuss his views today during a question-and-answer session here, has not taken a formal position on cable indecency since becoming FCC chairman last month. But in four years as a commissioner, he has called for the FCC to be more responsive to parents who are trying to shield children from explicit content.

“Over a year ago, I urged cable and satellite operators to help us address this issue. Thus far, there has been no response,” Martin said in a written statement last year. Describing himself as “sympathetic to the many people calling for the same rules to apply to everyone -- for a level playing field,” he said, “something needs to be done.”

With such sentiments ringing in their ears, industry leaders have scrambled in recent weeks to arrive at this NCTA conference armed with voluntary proposals to help control children’s access to graphic programming. The idea is to head off government intervention while stopping short of self-censorship.

Comcast Corp. CEO Brian Roberts said Monday that he believed the Internet offered a good model to follow.

“One reason we have AOL in our home is because it has parental controls,” Roberts said of his own family. “Why can’t we [the industry] do the same thing instead of regulating speech?”

But in an attempt to avoid anti-indecency backlash, sources say, Roberts may move to take some of Comcast’s raciest programming off the air.

Sources said that Roberts was considering not renewing “The Howard Stern Show” -- the videotaped version of the shock jock’s rant-filled radio program -- when the contract expires this spring. The show, which helped put the E channel on the map, is still a ratings winner. But Roberts is worried that Stern, who has racked up more than $2 million in indecency fines for the nation’s radio stations, could provoke unwanted scrutiny from Washington, especially if he gets even raunchier once he moves to satellite radio in January.

Roberts isn’t alone. Mark Cronin, president of Mindless Entertainment and creator of such shows as VH1’s “The Surreal Life,” said there had been a creative chill in the air since the 2004 Super Bowl. Nudity is less acceptable now when depicted in the context of a romance, he said, and four-letter words that were once partially audible are now bleeped out.

“You used to be able to get away with a lot more butt crack than you can now,” he said.

Though they are loath to discuss it on the record, the major media giants that own the bulk of the nation’s cable channels stand together in opposing regulations, with one notable exception: Walt Disney Co., which owns ABC as well as ESPN, Disney Channel, ABC Family Channel and Soap Net.

Disney has infuriated the industry by supporting the move to hold cable to the same indecency standards as broadcast. Cable executives call the position self-serving, noting that Disney has little to lose because most of its channels are relatively tame. Meanwhile, Disney has much to gain if new restrictions weakened edgier channels that take viewers from ABC.

Several cable executives privately accuse Disney of urging Stevens to crack down on cable. They point to the close relationship Stevens has with Mitch Rose, his former chief of staff who is now a top Disney lobbyist.

Disney would not comment. But one Disney source, while acknowledging that Rose and Stevens talk frequently, said it was only fair to level the playing field now that most homes have cable.

“If a kid is sitting with a remote control that has 70 channels on the up and down buttons, how stupid is it that the indecency rules only apply to six or seven of them?” this executive said.

Any new regulations probably would face court challenges. A voluntary “family viewing hour” that the FCC tried to impose on broadcasters in the 1970s was found by the courts to be “coercion” and a violation of the 1st Amendment. Then, in 2000, the Supreme Court upheld cable’s right to air sexually explicit content, noting that cable technology allowed consumers to block unwanted programming.

Still, the industry is treading softly, seeking to avoid offending conservative Americans and lawmakers whose support it will need in coming battles on other media issues.

Among the proposals being considered to try to placate cable’s critics is a wholesale revision of the voluntary rating system, invented in 1996, that seeks to give parents guidance about what a show contains.

Before each program begins, the current system displays an age guide: TVY for young audiences, for example, and TV14 for viewers older than 14. It also has content descriptors such as FV, for fantasy violence.

But the rating system has come under attack from, among others, the Parents Television Council -- the same advocacy group that has spurred the majority of indecency investigations undertaken by the FCC in recent months -- for being tantamount to a fox guarding a henhouse.

“The rating system is an absolute farce,” said Brent Bozell, the council’s president, charging that the age designations, among other things, are not always appropriate. “The industry has been thoroughly irresponsible in policing itself.”

Bozell is also dissatisfied with the way cable channels are packaged and sold to consumers. He favors an a la carte system that would allow viewers to pay for only the channels they watch instead of buying pre-set groupings of channels.

Cable industry executives argue that a la carte pricing would give consumers fewer choices. They say channels that lack strong advertising support or viewership could not survive if they were unbundled from the stronger networks.

The so-called family tier model that Martin and Stevens support is also problematic for the industry. In addition to the question of who would be the authority on what constitutes family-friendly, cable leaders also worry that separating those channels from other basic options will make them less popular and profitable. And what of the adult programming that runs on many kid-focused channels, such as Cartoon Network’s late-night “Adult Swim”?

Instead, cable leaders here say they hope they can convince their critics that a solution is under consumers’ noses: blocking. In addition to the V-chip that is found in most newer TVs, more than 30% of cable customers have digital set-top boxes that enable customers to block by show, time period, rating or channel. The industry is working to make more people aware of the technology.

In addition, for the last year the industry has offered to install blocking equipment free of charge for customers who lack digital boxes. Despite running thousands of promotional spots alerting customers to the offer, however, fewer than a thousand have taken advantage of it, industry executives say. Will blocking and an improved ratings system be enough to quiet the growing clamor for cable regulation? Many here are skeptical, particularly because few politicians want to come out against the popular anti-indecency agenda.

“We’re in the eye of the storm of moral America,” one cable executive said. “That’s just the climate of the country right now.”