Tales of the Sausage Factory: Will Janet Jackson's Bosom Baring Kill Comcast/Disney Deal

Granted its a cute headline, but what the heck am I talking about? Comcast and Disney had nothing to do with Ms. Jackson’s little “costume malfunction” and besides, isn’t this just a case of standard election year pandering by legislators on a nothing issue? Welcome, dear readers, to Washington Land, an E-Ticket Ride in the funhouse where surface appearances are very decieving . . .

Unless you’re a policy junkie like me whose favorite Super Bowl question is “how will they manage frequency coordination this year,” you probably stopped paying attention to the Janet Jackson business awhile ago. While no doubt a silly and tastless stunt, it should just blow over after the usual stern warnings from Congress in an election year and some hang dog expressions from media execs. To the extent it drags on, it can be chalked up to election year pandering to the ever popular “conservative base” who, like the hypothetical “18-34 year old white male” of commercial broadcasting, seems to drive all political programming in Congress in Republican administrations.

Well not this time sports fans! Little Miss Jackson’s stunt has brought together a powerful confluence of events that have been brewing for years that already had Washington astir and corporations looking a little nervous. And it has brought to the fore a genuine revultion for some in Congress for big, vertically integrated media corporations and their “race to the bottom” on programming. Already giants Viacom, Clear Channel and News Corp. are falling all over themselves to fire shock jocks, promulgate codes of “responsible broadcasting,” and do anything in their power to show regulators that they are good, responsible little corprate citizens.

Even before the Super Bowl, the question of indecency in programming had become a major inside the Beltway deal.

As anyone who listens to radio or watches television knows, we’ve been seeing a lot more skin, hearing a lot more dirty language, and dealing with a lot more issues that never got addressed. Nothing new, of course. Since the days when “I Love Lucy” producers consulted a minister, a catholic priest, and a rabbi on the proper way to refer to Lucille Ball’s pregnancy on air (andswer: “expecting”), and Barbara Eden was prohibited from baring her navel in “I Dream of Genie,” there have been folks complaining that society is going to heck in a handbasket and where did all of this filth-flarn-filth come from.

But the advent of cable pushed the envelop further, as did the advent of target marketing. Producers and advertisers have both come to believe that (a) the target demographic for nearly all programming is white males ages 18-34 on the theory that these are the stupidest, most easily manipulated critters on the planet with the greatest amount of disposable income, and (b) 18-34 males want sex and violence, preferably combined with minimal intervening story.

Cable pioneered the concept, but broadcast producers and advertisers following the trend make some fairly critical mistakes in analyzing the data, IMHO. Yeah, “cable” is now dominant in viewers over “broadcast networks” for total viewership, a figure much quoted by network execs when aiming their programming at the beloved 18-34 demographic and loudly lamenting that they need to have comparable standards and content to MTV’s “Spring Break.” But if you actually look at numbers, broadcast reaches a larger and more diverse audience. “Cable” is about market segmentation, and cable programmers use the same strategy as Kellogs — crowd the shelves with as many variations on the flavor as you can to skim another fraction of the audience.

Network broadcasting, by contrast, is about aggregation. And it still delivers. Any mid-rated network program gets better ratings than a “hot” cable show, and a high-rated broadcast network show pulls in ten times your average cable audience. For example, for the week of February 15, the top rated cable show was TNT’s broadcast of the NBA All Star Game, viewed (according to BRoadcasting & Cable Magazine) by 5.5 million households. That is the same rating pulled by “Extreme Makeover,” which is the 55th (out of aprox. 115) broadcast television shows. (nearly all other top rated cable shows are either children’s programming on Nickelodeon or professional sports, with only MTV’s Real World XIV pulling 3.3 million viewers, or roughly the same as Fox’s “King of the Hill,” the 86th most popular broadcast show. What makes Sopronos or Sex in the City so hot are critical buzz and the ability to draw a targeted demographic.

So broadcasting really does work differently from cable programming. But broadcasting outlets are now controlled by cable giants and broadcasting is but one asset in the overall entertainment play. So pressure has come from on high in corporate land for broadcast to become more like what high executive mucky mucks think draws audiences to cable.

And let us not forget radio. The rise of the “shock jock” and the removal of any sense of limits on music lyrics has pushed radio content to new places in terms of programming. Radio, like broadcast, used to rely on aggregation. But no longer. With the rise of Clear channel and similar large, vertically integrated group holders (like our friend Viacom, the number two owner of radio stations via its subsidiary Infinity), radio is no longer about generating local audience. Clear Channel holds a dozen licenses in any given market, along with concert promotion rights, bilboard rights, an the major radio ad buy firm nationally. So Clear Channel is no longer interested in building local audience. It wants synidcated programming it owns (cheap content), to play music it owns for groups it has under contract (cross-promotion) and to draw a target demographic by station-type to sell to advertisers.

Again, the perception (rightly or wrongly) that sex sells to the target 18-34 year olds or, even better for radio, target 12-20 year olds (male and female, who have been told for years that slutyness is the road to empowerment. I have often stated that whatever Madison Avenue genius convinced an entire generation of woman that displaying their bodies and aggressive sex is the road to true equality with men deserves a Nobel prize or something) drives the content, and because these are mamoth group owners, a decision at the top sets policy for every single market in the country. If Clear Channel, Infinity and Cumulus decide to persue a particular strategy, that is pretty much what you will hear.

But non 12-20 year olds, and even a bunch in the 12-20 year olds, are not necessarily happy with this stuff. Despite a non-stop mantra from all available news and media outlets (owned, oddly enough, by the same companies providing the programming) that you _should_ like it, and there is something wrong with you if you _don’t_ like it, and everybody else _does_ like it or they wouldn’t play it, more and more people are unhappy with their broadcast media and with the indecent nature of the content carried. Not only have people been switching off in droves (XM Radio keeps topping their most optomistic projections), but complaints to broadcast licensees and licensees and the FCC enforcement bureau have continued to rise steadily for the last several years.

Part of what drives this disatisfaction and complaints is that viewers keep tuning into network programming expecting one level of raunchiness and getting confronted with another. When you tune in to VH1’s “From Porn To Rock,” you know what you are getting and can pretty much avoid it if you don’t want it. But when you watch the Super Bowl you really don’t expect to get confronted with MTV-style programming. And if you are a parent trying to screen your kids from this stuff, you really hit the roof. Here you are, after all, trying to let your kid use a technology that has become a part of every day life (radio and television) and your only choice is to shut it out entirely or take whatever our corporate masters choose to dish out?

Maybe that flies in Libertarianville, but not among a wide base of Americans that cannot be neatly pigeonholed as Bush’s “conservative base.” Indeed, many people would like to have more adult programming available, just not always in your face and on tap to kids. Many people would oppose prohibition, but agree we should have a drinking age.

But even if you screen it out in your home, it has become ubiquetous in our society. From my own personal experience, I can say that trying to screen out violent or highly suggestive programming is well nigh impossible unless you want to live in a cave.

Oh yeah, and you know those commercials for beer and what not that are just as suggestive or worse. Most people disturbed by the coarsening of language and standards on TV and radio are equally offended by them. Look at the transcripts from the Hill hearings and read what gets filed at the FCC. Those offended by the breast barring have been regularly offended for years by advertisements using copious sex and violence. As have those members of Congress who, for the last few years, have taken an increasing interest in this.

Which brings us to the final reason for the explosion of outrage and the fear on the part of the media conglomerates, the Federal Communications Commission and its hitherto complete failure to act.

Constitutionally, the FCC has authority to regulate not just obscenity (which falls outside First Amendment protection entirely) but indecency (which gets First Amendment protection) on radio and television, and is required to do so by law. Under a 1970s decision known as FCC v. Pacifica, the Supreme Court held that because broadcast television was so “pervasive” that Congress and the FCC were Constitutionally permitted to impose some regulation to protect children from exposure to indecent material. Thus, Congress and the FCC can’t actually ban indecent content from the airwaves, but have for many years prohibitted it between 6 a.m. and 10 p.m. (from 10 p.m. to 6 a.m. is the “safe harbor” time when more adult content can be broadcast).

Cable, however, is different. Because one subscribes to cable, and knowingly brings it into the home, a higher First Amendment standard of review applies. That makes regulation of content not impossible, but difficult. Thus, Congress can Constitutionally require a cable company to offer “adult” programming seperate from any other premium package (so no more pretending you got Playboy because it came in the same package as HBO). It can require that cable operators allow permanent blocks on adult programming. But it cannot require cable operators to damp signal bleed if such a regulation has the effect of making it prohibitively expensive to offer indecent programming.

DBS (DirecTV and Echostar) are something of a toss up. Under _Pacifica_, they should be treated like cable because they are subscription services. However, under a seperate line of cases involving use of the public airwaves, they are like broadcasters. But since DBS doesn’t do much by way of original programming anyway, it’s kind of a non-starter here.

Now armed with the relevant legal background, we return to our saga of little Miss Jackson, Bono, and a radio personality known as “Buba the Love Sponge.”

For many years, the FCC staff have _hated_ the indecency rules. They loath them. FCC staff think they violate the First Amendment — or they should even though the Supreme Court says they don’t. Powell equally loaths the indecency rules. As a libertarian minded Republican, he thinks they represent an impermissible regulation of content and that parents should just switch off programming that offends them.

So the FCC has spent years and years refusing to enforce the indecency rules, or doing so in a way that did little to effect the programming. Occassionally, some particularly nasty bit of programming would draw a fine of $27,000 — the maximum allowable under the law. But the FCC never followed up in court when companies refused to pay, and most of these violations occured on syndicated or network programming broadcast by the megacorps for whom $27K was peanuts if Howard Stern could bring in the listeners in the coveted Beavis ‘n Butthead demographic.

So standards continued to slide, and the FCC did nothing. More and more people got pissed, and even wider numbers got uncomfortable without being able to explain clearly why (or without sounding to themselves and friends like prudes). And besides, as the media conglomerates kept telling everyone, everyone else loves this stuff, so its your problem. If they didn’t, we wouldn’t air it. Since we air it, everyone loves it. Q.E.D. and me and my three other corporate CEO buddies agree.

Then came a few high profile incidents that threw done the gauntlet to anyone who cared. First, a syndicated shock jock show called “Opie & Andy” broadcast a description of a couple purportedly having sex in St. Patrick’s Cathedral in NYC. Gee, think anyone would get upset? While the d.j.’s in question got fired and the station in question got fined, it did little to mollify those enraged by the incident, especially when Cumulus refused to pay the fine and many opined in the press that follows this that because no actually “bad words” were used, the broadcast was not, in fact, indecent.

Now add “Buba the Love Sponge,” a shock jock based in the Florida panhandle and syndicated on Clear Channel stations throughout the south. Buba broadcast, in the middle of the morning, a skit in which he speculated on the illicit deviant sexscapades of various well known cartoon characters. Just the thing for the kiddies on their way to school! Think anyone in the south could get offended?

Then came Bono’s use of the “f-word” in a live broadcast of the Golden Globes. On recieving an award, Bono yelled “this is fucking brilliant!”

Now while a minor thing to many, this clearly represented the last taboo to the millions of folks who do care and follow this stuff. Complaints were filed. After a year, the FCC enforcement bureau ruled that because the incident was live and because Bono used the word as an adverb rather than a verb, it was not indecent.

Oh! An adverb! That made it ever so much better for the Parents Television Council and the Family Values Coalition. This was immediately followed up by Paris Hilton and her buddy from the Simple Life openly mocking broadcast standards on live T.V. “Be careful dear,” warned Paris. “We’re on live T.V. and have to watch our language.” “Shit!” answered her friend, with that smug little way of people who think you can’tdo anything about it, like the folks who say “your welcome” and blow cigarette smoke at signs that say “thank you for not smoking.” Naturally complaints got filed, which the FCC Enforcement Bureau greeted with typical enthusiasm while the press (owned by the same megacorps) mocked the blue noses.

Could the FCC have done anything more to get legislators and activists in this area genuinely upset? Sure! How about declaring Howard Stern a “bona fide news program” during the California gubenatorial race so he could interview Arnold Schwartzeneger? Howard Stern is to the right and left wing crusaders against indecency as McDonalds is to PETA members. The FCC Media Bureau’s declaration that the show with the greatest number of indecency sitations was equivalent to Ted Koppel and Nightline merely emphasized to those who cared about this issue that the FCC intended to ignore their concerns and allow Western Civilization to sink into the sewer.

Now running parallel to this was the FCC’s media ownership proceeding, in which these anti-indecency groups drew the connection between corporate consolidation and the “race to the bottom.” For those who haven’t figured it out from above, the basic argument is:

Dillution of interests: once, television programming was done by television broadcasters who had no interest beyond attracting viewers and selling adds. Now programming decisions are made by huge conglomerates looking to leverage their various products. Not only is the show filled with advertising, it IS an advertisement for a particular lifestyle, music and products. Think of all the music owned by Warner Bros. music that gets played on various shows targeted to teens and 20 somethings.

And cable is the golden boy, because its edgy and dramatic and better than silly old broadcast TV which is so yesterday’s technology. So the companies install decisionmakers who don’t know the playing field, don’t know general audiences, and don’t care. Because its about integrating your broadcast properties into your total package, not about good programming. And if it means that folks over 30 are offended, it just means you’re doing your job.

Dillution of checks and balances: Once, broadcasters needed to avoid allienating their affiliates or they couldn’t reach an audience. Now most networks own enough stations to tell affiliates to piss off. Local standards don’t get protected by local affiliates, and complaints that local folks are offended get brushed off by decisionmakers in LA or NYC who don’t care what the people of Boise think.

On June 2, 2003, the FCC substantially caved to corporate demands and relaxed most existing ownership rules. It triggered a fire storm in Congress and among millions of Americans grown distrustful of “big media.” For many of these legislators and activists, the indecency issue was a piece of the antimedia pie and something conservative members of Congress, who normally don’t support regulation, cared deeply about.

Into this happy, bubling frothy stew came Ms. Jackson, brazenly barring her booby for the world to see. As the highlight of a half-time show that already had many offended for its MTV-style raunchiness and the sight of Kid Rock stomping on his American flag poncho. In the midst of one of the crassest set of commercials ever aired.

It’s useful to think about how the decision might be made if CBS and MTV were not both Viacom properties. In the old days, CBS might still have invited MTV to plan the half-time show, or been receptive to such an offer. MTV is a hot property with a valuable demographic. But CBS would have been much more protective of its brand and much more concerned about not alienating its core audience. And it would have been concerned about maintaining the good will of the affiliates.

Now, the directive comes down from Viacom corporate to do whatever golden boy MTV says, and fuddy duddys in CBS who still harp about “broadcasting” and “broadcast standards” better play along. And as for alienating the affiliates, hah! Cause CBS is just like a cable channel and no one even knows the difference anymore. So say our experts in NYC, and who would say them nay? And as for concerns about Washington and the FCC, please! We own those guys! Watch us make ’em sit up and roll over and wag their tails for more campaign contributions.

Given the background, to which Ms. Jackson and the rest of the programmers seemed utterly oblivious (if not outright contemptuous), it is harder to imagine redder meat thrown before those who already hated “big media” for whatever reason. Even those for whom indecency was not a big issue before latched onto the incident as proof positive that only massive re-regulation of the media could keep this kind of thing from happening on a regular basis.

On the same day as the Congressional hearings on the Superbowl incident, Comcast announced its bid for Disney. And, also at the same time, the Third Circuit Court of Appeals in Philadelphia was hearing oral arguments on the FCC’s media ownership rules.

Again, the timing had a perfect storm like quality. Everybody at the indecency hearings wanted to know about the Disney/Comcast merger. Had media crossed a line? Was massive reregulation necessary? The fact that some media CEOs had declined to attend and that the media CEOs that did attend had come prepared for a business as usual “we take responsibility but it wasn’t our fault” hearing only fanned the flames.

So now we see media CEOs absolutely panic stricken to head off reregulation. Clear Channel fired Buba and dropped Howard Stern after it was “shocked, shocked I tell you” to hear one of Stern’s broadcasts describe sexual acts in explicit language. News Corp., previously the staunch defenders of liberty and free expression, has promulgated a new voluntary conduct standard. Viacom has announced a “zero tolerance” policy for any indecent content on any outlet, and has even purportedly told MTV to clean up its act.

I have no clue what will happen next. Voluntary measures and stern talk, a few public hangings, these may beat off the latest reregulation threat. But I would not bet on it. But I am sure of one thing, despite the fact that Comcast and Disney had nothing whatsoever to do with what happened at the Superbowl, Ms. Jackson has bought Brian Roberts a major headache and tougher regulatory review than he could ever have imagined.

Stay tuned . . . .