Media Issues Heat Up On Capitol Hill As The Legislative Summer Doldrums Approach

Wednesday, August 1, 2007 - 01:00

With little time left before Congress leaves on its annual month-long August recess, several media issues have taken on a higher profile on Capitol Hill. One issue in particular, the question of what, if any, power the Food and Drug Administration should have to regulate direct-to-consumer drug advertisements, has been the subject of legislative action in recent weeks. Other issues, like family-friendly television programming, reporter shield legislation, and additional taxes on television and radio, have been in the Congressional spotlight. As the long hot days of summer fade into fall, these issues will continue to be scrutinized by the House and Senate.

Direct-To-Consumer Drug Advertising

Both the Senate and the House in recent weeks have taken up comprehensive legislation to renew the FDA's prescription drug fee, and tacked onto that legislation other measures geared toward enhancing drug safety in America. One of these drug safety proposals would have given the FDA the power to pre-clear drug advertisements before they air, and another would have authorized the FDA to place a moratorium on drug ads for a particular pharmaceutical for several years after the drug had been approved. Proponents of these measures argued that the regulations would help to protect consumers from another Vioxx-like situation. In their mind, without the massive marketing campaign surrounding that drug, far fewer consumers would have been exposed to the risk of heart attack and stroke that was discovered years after the drug was approved.

Responding to arguments that these regulations would violate the First Amendment with respect to commercial speech and prior restraint, and that they would restrict the flow of truthful and accurate information about consumer drugs to the public, both the House and Senate compromised by adopting language giving the FDA the authority to fine a drug company for disseminating a false or misleading advertisement for a prescription drug. This new power would be coupled with a process where the FDA may pre-review certain direct-to-consumer drug advertisements and offer comments on their content. If a drug company heeds those comments and incorporates any recommendations into the ad before it is released to the public, the company would be insulated from liability.

The Senate version of this legislation, the "Food and Drug Administration Revitalization Act" (S. 1082), passed with overwhelming bipartisan support in May once these changes to the advertising language had been made. The House Energy and Commerce Committee's Subcommittee on Health took up a series of discussion drafts paralleling the Senate bill on June 19. An amendment offered during consideration of these drafts, replacing the more stringent advertising restrictions with a civil fine structure like the one developed in the Senate, passed on a vote of 23-9 against the opposition of the Subcommittee's Chairman, Representative Frank Pallone, Jr. (D-NJ). The full House Energy and Commerce Committee approved the amended legislation on June 21, and the House passed the bill (now H.R. 2900) on July 11 by a vote of 403-16. Both pieces of legislation are headed to conference for reconciliation, a process which must be completed within a few weeks as a final bill must be approved by Congress and signed by the President by September 30.

Family-Friendly Television Programming

With the recent release of the FCC's report on violence on television, media content issues have become a hot-button issue on Capitol Hill. On June 15, 2007, the House of Representatives responded to the violence report with the introduction of the "Family and Consumer Choice Act of 2007" (H.R. 2738), championed by Representatives Lipinski (D-IL), Fortenberry (R-NE), Shuler (D-NC), and Aderholt (R-AL). The bill, as introduced, would require Multichannel Video Programming Distributors ("MVPDs") to do one of the following:

Apply the FCC's indecency and profanity standards to their expanded basic tier between the hours of 6 a.m. and 10 p.m. (5 a.m. and 9 p.m. in the Central and Mountain Time Zones).

Offer consumers the option to subscribe to a family tier of programming. This family tier must include all channels offered on the expanded basic tier of the MVPD and must not include channels on that expanded basic tier that carry programs rated TV-14 or TV-MA between the hours of 6 a.m. and 10 p.m. (5 a.m. and 9 p.m. in the Central and Mountain Time Zones). Subscribers must be able to obtain a family tier of programming on one or more TVs, while also having access to an MVPD's full range of programming on other TVs in the same household.

Offer an opt-out a la carte programming option allowing consumers to choose what, if any, channels they would like to block without charge by the MVPD. Consumers would be entitled to a refund on their bill for the blocked channels. Channels that must be part of an MVPD's basic tier pursuant to Section 623 of the Communications Act of 1933 are not eligible for blocking, nor is programming offered on a per-channel or per-program basis and programming on a themed tier of programming, if a consumer subscribes to that themed tier.

The MVPD would have to notify the Commission of the option it has elected, and it must also inform consumers annually of the amount of credit a subscriber would receive if he or she elected to block a certain channel.

The Family and Consumer Choice Act has already drawn the support of the FCC Chairman Kevin Martin. As part of the press conference held concerning the introduction of the bill, the Chairman offered words of encouragement to the Members of Congress who have sponsored the legislation. He stated that the media industry has not done enough to help parents limit the exposure of children to "violent and sexual content they believe is inappropriate." "[P]arents must have meaningful choices," according to Chairman Martin and, "their choices must have meaningful consequences [on the media industry]. If a family must continue to pay for programming even when they object to it, there is little or no incentive for programmers to respond." According to the Chairman, "Our message . . . is very simple: no consumer should have to pay for content they do not wish to receive. Period."

Beyond H.R. 2738, the House and Senate have begun to examine media content issues in a series of hearings that may foreshadow additional legislative action. Two recent hearings on content issues are of note:

The House Energy and Commerce Committee's Subcommittee on Telecommunications and the Internet, chaired by Representative Ed Markey (D-MA), held a hearing on June 21, 2007, entitled "Images Kids See on the Screen." The hearing explored the impact smoking in movies, violence on television, and advertisements for unhealthy foods have on children. Notably, Chairman Markey indicated that he is considering asking the FCC to regulate ads for unhealthy foods during children's programming under the Commission's authority pursuant to the Kids Television Act.

The Senate Commerce Committee, chaired by Senator Daniel Inouye, held a hearing on June 26, 2007, entitled the "Impact of Media Violence on Children." The hearing explored the recent FCC report on media violence and the recommendations made in that report.

Federal Reporter Shield Legislation

News organizations have been pressing for a qualified federal reporter privilege in criminal and civil cases for several years. On May 2, 2007, Representative Rick Boucher (D-VA), along with several of his colleagues (including Representative John Conyers (D-MI), the Chairman of the House Judiciary Committee), introduced the "Free Flow of Information Act of 2007" (H.R. 2102). On the same day, companion legislation was introduced in the Senate by Senators Richard Lugar (R-IN) and Christopher Dodd (D-CT) (S. 1267). Both bills would provide journalists with a qualified privilege from disclosing confidential sources and information, which may only be overcome based upon a showing by a prosecutor, defendant, or party to a civil case that they meet certain tests for compelled disclosure of sources. This privilege would extend to information held by telephone companies, Internet service providers and other communications providers, if such information could be used to reveal a journalist's confidential source. A confidential source's identity can be compelled, however, if disclosure is necessary to prevent "imminent and actual harm" to national security, to prevent "imminent death or significant bodily harm," or to identify a person who has disclosed significant trade secrets or certain financial or medical information in violation current law.

H.R. 2102 was the subject of a House Judiciary Committee legislative hearing on June 14, 2007. The Committee heard from a number of parties on the proposed reporter shield legislation, including representatives from the Bush Administration and members of the press. Rachel Brand, with the Department of Justice, and Professor Randall Eliason of the George Washington University Law School, both opposed the creation of a federal reporter privilege. Lee Levine of Levine, Sullivan, Koch & Schulze; Pulitzer Prize-winning journalist William Safire; and investigative reporter Jim Taricani spoke in favor of the creation of the privilege, with Mr. Taricani speaking at length of his imprisonment for contempt for refusing to reveal a confidential source in the Buddy Cianci investigation in Rhode Island. Several Committee members in attendance at the hearing expressed support for H.R. 2102, although others had reservations about the creation of a federal reporter privilege. It is unclear at present when the bill will advance in the Committee, although it is expected to move forward in the future.

Taxes On Radio And Television

Another recent Senate hearing focused on an issue of importance to media outlets - political advertisements. The hearing, held by the Senate Committee on Rules and Administration, explored S. 1265, the "Fair Elections Now Act," which addresses the funding of primary and general election campaigns for Senate offices. A portion of that bill, introduced by Senators Richard Durbin (D-IL) and Arlen Specter (R-PA), deals with the purchase of broadcast advertisements by Senate candidates.

The bill, if passed, would establish a political advertisement voucher program. This program would distribute advertising vouchers to candidates to be used for the purchase of ad time on local television and radio stations during a general election for the Senate. These vouchers would be funded through a tax on the revenue raised by a broadcaster through the sale of advertising time on their broadcast outlet, set at 2% of the outlet's advertising revenue for the year in question. The tax would be assessed every year, with any amounts not needed for the ad vouchers being deposited in an account to be used for other purposes. According to Senator Durbin, the tax is meant to pull some of the money broadcasters earn every two years from political advertising back into the election system to help defray the cost of political advertising time. The proposal is opposed by broadcasters and the NAB, and it appears unlikely that the bill will advance in the near future.

Kathleen A. Kirby, a Partner in Wiley Rein's Communications Practice, represents broadcast clients, including major radio and television group owners, on regulatory and transactional matters before the Federal Communications Commission. She has particular expertise in newsgathering, content regulation and First Amendment issues. Ms. Kirby can be reached at (202) 719-3360. Shawn A. Bone advises clients on political and legal issues and advocates for their interests before the executive and legislative branches of government, as well as regulatory bodies. He can be reached at (202) 719-7243.

Please email the authors at kkirby@wileyrein.com or sbone@wileyrein.com with questions about this article.