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FCC to Seek Expansion of Powers

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WASHINGTON The Federal Communications Commission is preparing to ask Congress for a broad expansion of its authority to regulate the content of television programming, but it hopes to leave the thorny issue of defining the parameters of how much violence is too much to legislators, an FCC commissioner said Thursday.

Commissioner Robert McDowell told a broadcasters' convention that the commission is struggling with developing recommendations for lawmakers that help protect children without running afoul of the First Amendment.

"An effort to minimize children's exposure to violence is a noble effort, but getting there in a reasonable, legal and constitutional way is difficult," he said.

When asked by a reporter if the FCC left out a definition of violent content in the report, McDowell said: "I think the request will be that Congress needs to take a look at where to go next. So, yes—the answer is essentially 'yes.'"

The FCC is expected to issue a report in the near future that asks Congress for the power to enforce curbs on violent content on broadcast TV in the same way it has the power to levy fines on TV and radio stations for airing what the commission deems to be indecent speech. Currently broadcasters are restricted from airing indecent material between 6 a.m.-10 p.m. The report contends that the agency could use a similar regime to regulate violent content.

However, McDowell sought to downplay the magnitude of the report and its First Amendment implications.

"This particular report is a report on violence," he said. "It's not legislation, it's not an FCC order; we're not talking about a rule here. Overall, I think in the long run technology and competition will really solve this for parents. I think we're going to have technological solutions."

At present, the commission may regulate only broadcast television and radio for indecent programming, the report suggests that Congress could allow it to go further and bring cable programming into the mix. Lawmakers could approve a law that would mandate that cable operators offer consumers the chance to buy individual channels on an "a la carte" basis, allowing them to eliminate channels with programming they deem objectionable. Or the new law could mandate a family tier like the ones already offered by many cable and satellite TV providers, sources said.

The FCC's report draws a link between TV violence and "short-term aggressive behavior" in children, according to the sources. The report was requested by a bipartisan group of 39 House members nearly three years ago, and it initially was expected by Jan. 1, 2005. At the time, lawmakers sought a study on whether the FCC could define "exceedingly violent programming that is harmful to children." It also asked whether the agency could regulate such programming "in a constitutional manner."

FCC chairman Kevin Martin, a Republican, and commissioner Michael Copps, a Democrat, are pushing for the report's release.

Republican McDowell, who has expressed his doubts about government involvement with content and speech matters before, seemed troubled by attempts to expand the commission's role.

"The first line of defense is parents," he said. "We're looking at some of the questions being raised, but we've got to look at the First Amendment. Is there a balance to be struck?"

As the commission wrestles with its violence report, its indecency regulations are facing a pair of court challenges. One is in the Philadelphia 2nd Circuit Court, involving Janet Jackson's "wardrobe malfunction" that bared her breast during the 2004 Super Bowl halftime show. The other case, in New York's 2nd Circuit Court of Appeals, involves Fox broadcasts of the 2002 and 2003 Billboard Music Awards during which Cher and Nicole Richie used profanities.

Both cases contend that the commission is using its indecency rulings to unfairly bludgeon broadcasters about instances over which they have little control. A favorable ruling for broadcasters on the indecency cases could complicate efforts to expand the FCC's power on the violence issue.

On another hot topic for the FCC, McDowell in his speech made a link between broadcasters' attempts to get the commission to ease its media-ownership rules and their effort to lobby the FCC to block the proposed $13 billion merger of satellite radio operators XM and Sirius.

"What we do with XM is directly related to broadcast ownership," McDowell told a NAB conference here.

McDowell is one of five FCC members who will have to approve the deal that combines the nation's two satellite radio companies. Broadcasters oppose the deal because they contend it will create a government-sanctioned monopoly that will compete against them.

Broadcasters contend that the satellite radio market should be defined narrowly. Sirius and XM executives argue that approach is wrong-headed and that broader market includes the services they offer via traditional radio and digital media platforms like the iPod.

The FCC and the Justice Department have to approve the deal. While Justice looks at possible competitive harm, the FCC has to decide if allowing XM and Sirius to combine is in the public interest.