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City considers censoring TV Council to discuss restrictions on sexually-explicit public programming

By Kurtis Alexander Daily Planet Staff
Tuesday May 14, 2002

A television-oversight policy being entertained by city leaders would make city officials the “moral conscience” of the community, according to Berkeley Community Media Executive Director Brian Scott. 

The recommendation, which City Council is scheduled to consider Tuesday night, calls for adult-oriented programs on Berkeley’s two community TV stations to air only after midnight, and directs the city to provide “oversight and ultimate authority” over local programming. 

The proposal comes amid recent concerns about the hotly-contested “Dr. Susan Block Show.” Airing at 10:30 p.m. on Friday evenings, the program features a lingerie-clad sex therapist whose live guests have included women masturbating and provocatively touching one another. 

“Many people feel that these shows are on too early,” said Councilmember Miriam Hawley, who is joined by councilmembers Polly Armstrong and Betty Olds in sponsoring the proposed city ordinance. “The goal is to protect children from pornography.” 

At present, legally-termed “indecent” programming is scheduled to run between the hours of 10 p.m. and 6 a.m., a loose guideline offered by the Federal Communications Commission. The proposed Berkeley ordinance would raise the bar for oversight, moving the airing time of “indecent” materials up two hours and establishing a city-run review process to assure compliance. 

The problem, critics say, is censorship. Because of First Amendment rights upheld by the Supreme Court, public access television stations cannot censor “indecent” programing and are required to air all locally submitted and sponsored material. The only exception is “obscene” material, which legal experts say is nearly impossible to brand. 

The current 10 p.m. to 6 a.m. window for indecent programing, called a “safe harbor’ by insiders, is merely voluntary, according to BCM staff. 

While sympathetic to existing “safe harbor” times, Berkeley television producer and sponsor of the Dr. Block show Frank Moore said that pushing the time beyond the current national guideline was a violation of free-speech laws. 

“Why does Berkeley have to have a different standard?” he challenged. “I don’t think this censorship will play in Berkeley.” 

Moore said he is considering filing a lawsuit against the city, should the ordinance pass. In addition to the Dr. Block show, Moore stands to lose a programming slot for his own, sometimes sexually-explicit, program “Frank Moore’s Unlimited Possibilities.” 

BCM’s Scott confirmed that the station has received a number of complaints about adult-oriented programming, but said his hands are tied. Censoring the programs and their times is a legal liability his station is not willing to take on. 

“More stations have been sued for censoring materials than for airing obscene materials,” he said. 

“The proposed ordinance puts the onus on the city,” Scott added. 

City Attorney Manuela Albuquerque says the city is not afraid to take on the task of regulating public television programming. 

“The city may, consistent with the First Amendment, impose time-segregation rules for indecent programming on BTV for the purposes of protecting children from lewd programming,” Albuquerque said in a written statement to City Council members. 

Under the proposed ordinance, Councilmember Hawley affirmed that the city would have the final authority to prevent a “truly unsuitable” program from airing. 

Though, to assure fair assessment of controversial programs, Hawley said the newly-found review process would kick in. 

Currently, programs aired after 10 p.m. are done so only at the suggestion of the producer or sponsor. None of the material is reviewed by BCM officials prior to its airing.