<DOC>
[108th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:91578.wais]
``CAN YOU SAY THAT ON TV?'': AN EXAMINATION OF THE FCC'S ENFORCEMENT
WITH RESPECT TO BROADCAST INDECENCY
=======================================================================
HEARING
before the
SUBCOMMITTEE ON TELECOMMUNICATIONS AND THE INTERNET
of the
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
JANUARY 28, 2004
__________
Serial No. 108-67
__________
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
__________
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COMMITTEE ON ENERGY AND COMMERCE
W.J. ``BILLY'' TAUZIN, Louisiana, Chairman
RALPH M. HALL, Texas JOHN D. DINGELL, Michigan
MICHAEL BILIRAKIS, Florida Ranking Member
JOE BARTON, Texas HENRY A. WAXMAN, California
FRED UPTON, Michigan EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida RICK BOUCHER, Virginia
PAUL E. GILLMOR, Ohio EDOLPHUS TOWNS, New York
JAMES C. GREENWOOD, Pennsylvania FRANK PALLONE, Jr., New Jersey
CHRISTOPHER COX, California SHERROD BROWN, Ohio
NATHAN DEAL, Georgia BART GORDON, Tennessee
RICHARD BURR, North Carolina PETER DEUTSCH, Florida
Vice Chairman BOBBY L. RUSH, Illinois
ED WHITFIELD, Kentucky ANNA G. ESHOO, California
CHARLIE NORWOOD, Georgia BART STUPAK, Michigan
BARBARA CUBIN, Wyoming ELIOT L. ENGEL, New York
JOHN SHIMKUS, Illinois ALBERT R. WYNN, Maryland
HEATHER WILSON, New Mexico GENE GREEN, Texas
JOHN B. SHADEGG, Arizona KAREN McCARTHY, Missouri
CHARLES W. ``CHIP'' PICKERING, TED STRICKLAND, Ohio
Mississippi DIANA DeGETTE, Colorado
VITO FOSSELLA, New York LOIS CAPPS, California
STEVE BUYER, Indiana MICHAEL F. DOYLE, Pennsylvania
GEORGE RADANOVICH, California CHRISTOPHER JOHN, Louisiana
CHARLES F. BASS, New Hampshire TOM ALLEN, Maine
JOSEPH R. PITTS, Pennsylvania JIM DAVIS, Florida
MARY BONO, California JANICE D. SCHAKOWSKY, Illinois
GREG WALDEN, Oregon HILDA L. SOLIS, California
LEE TERRY, Nebraska CHARLES A. GONZALEZ, Texas
MIKE FERGUSON, New Jersey
MIKE ROGERS, Michigan
DARRELL E. ISSA, California
C.L. ``BUTCH'' OTTER, Idaho
JOHN SULLIVAN, Oklahoma
Dan R. Brouillette, Staff Director
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Telecommunications and the Internet
FRED UPTON, Michigan, Chairman
MICHAEL BILIRAKIS, Florida EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas Ranking Member
CLIFF STEARNS, Florida BOBBY L. RUSH, Illinois
Vice Chairman KAREN McCARTHY, Missouri
PAUL E. GILLMOR, Ohio MICHAEL F. DOYLE, Pennsylvania
CHRISTOPHER COX, California JIM DAVIS, Florida
NATHAN DEAL, Georgia RICK BOUCHER, Virginia
ED WHITFIELD, Kentucky EDOLPHUS TOWNS, New York
BARBARA CUBIN, Wyoming BART GORDON, Tennessee
JOHN SHIMKUS, Illinois PETER DEUTSCH, Florida
HEATHER WILSON, New Mexico ANNA G. ESHOO, California
CHARLES W. ``CHIP'' PICKERING, BART STUPAK, Michigan
Mississippi ELIOT L. ENGEL, New York
VITO FOSSELLA, New York ALBERT R. WYNN, Maryland
CHARLES F. BASS, New Hampshire GENE GREEN, Texas
MARY BONO, California JOHN D. DINGELL, Michigan,
GREG WALDEN, Oregon (Ex Officio)
LEE TERRY, Nebraska
W.J. ``BILLY'' TAUZIN, Louisiana
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Testimony of:
Bozell, L. Brent, III, President, Parents Television Council. 26
Corn-Revere, Robert, Partner, Davis Wright Tremaine LLP...... 30
Solomon, David, Chief, Enforcement Bureau, Federal
Communications Commission.................................. 22
Wertz, William J., Executive Vice President, Fairfield
Broadcasting Company....................................... 49
Material submitted for the record by:
Berman, Gail, President, Entertainment Group, Fox
Broadcasting Company, letter dated February 5, 2004, to
Hon. John D. Dingell, enclosing response for the record.... 105
Franks, Martin D., Executive Vice President, CBS Television,
letter dated February 9, 2004, to Hon. John D. Dingell,
enclosing response for the record.......................... 99
Vaughn, Patrick J., General Counsel, American Family
Association, Inc., prepared statement of................... 90
Wright, Frank, President, National Religious Broadcasters,
prepared statement of...................................... 85
Wurtzel, Alan, President, Research and Media Development,
National Broadcasting Company, Inc., letter dated February
3, 2004, to Hon. John D. Dingell, enclosing response for
the record................................................. 102
(iii)
``CAN YOU SAY THAT ON TV?'': AN EXAMINATION OF THE FCC'S ENFORCEMENT
WITH RESPECT TO BROADCAST INDECENCY
----------
WEDNESDAY, JANUARY 28, 2004
House of Representatives,
Committee on Energy and Commerce,
Subcommittee on Telecommunications
and the Internet,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:40 a.m., in
room 2123, Rayburn House Office Building, Hon. Fred Upton
(chairman) presiding.
Members present: Representatives Upton, Bilirakis, Barton,
Gillmor, Deal, Whitfield, Shimkus, Wilson, Pickering, Bass,
Walden, Terry, Tauzin (ex officio), Markey, Rush, McCarthy,
Davis, Stupak, Engel, Wynn, Green, and Dingell (ex officio).
Also present: Representatives Pitts, Issa, Gonzalez, and
Osborne.
Staff present: Kelly Zerzan, majority counsel; Will
Nordwind, majority counsel and policy coordinator; Neil Fried,
majority counsel; William Carty, legislative clerk; Gregg
Rothschild, minority counsel; Peter Filon, minority counsel;
and Ashley Groesbeck, staff assistant.
Mr. Upton. Good morning, everyone.
To start, I would like to just say that we have three
Members that are not on the subcommittee that would like to sit
in. I am going to ask unanimous consent that they are allowed
to sit at the dais and be able to ask questions at the end,
following the members of the subcommittee. They would include
Mr. Gonzalez, Mr. Pitts and Mr. Osborne.
Without objection, that will be ordered.
Good morning again. Today we will be examining the FCC's
enforcement of broadcast indecency laws. This hearing is about
protecting children from indecency over the public airwaves or,
in other words, broadcast TV and radio.
This has nothing to do with the issue of censorship and the
case of Lenny Bruce at the Cafe A-Go-Go, as some critics have
highlighted. That case is simply irrelevant in today's debate.
Nor does this have anything to do with things outside the scope
of the public airwaves. In fact, the courts have upheld the
constitutionality of our broadcast indecency laws, although
they have limited the FCC's enforcement to only that content
which is aired between the hours of 6 a.m. to 10 p.m., when
children are most likely to be listening or viewing.
As a parent of two young children, I believe that America's
families should be able to rely on the fact that at times when
their kids are likely to be tuning in broadcast TV and radio
programming will be free of indecency, obscenity and profanity;
and Congress has given the FCC the responsibility to help
protect American families in that regard.
I have received hundreds of constituent letters expressing
astonishment and outrage over how the FCC's enforcement bureau
could have found Bono's use of the ``F-word'' on TV not
indecent in the Golden Globes case. I find the use of the ``F-
word'' on TV to be highly objectionable, and I have called on
the full Commission to reverse that decision, and reportedly
Chairman Powell and the other commissioners are seeking to do
just that.
However, I think that the outpouring of constituent mail
regarding the Golden Globe case is symptomatic of a larger
feeling amongst many Americans that some TV broadcasters are
engaged in a race to the bottom, pushing the decency envelope
in order to distinguish themselves in the increasingly crowded
entertainment field. Why is it that there have been so few
indecency actions against TV broadcasters? Is it a lack of FCC
enforcement or is it something else?
My plea to broadcasters is that, regardless of how the law
is settled in the Golden Globes case or the FCC's enforcement
action, as stewards of the public airwaves you indeed have a
responsibility to keep the ``F-word'' and other similar words
off of our airwaves. Although it may be your right to say or do
something on TV or radio, it does not make it the right thing
to do.
I call on all of the networks and broadcasters to take to
heart what we are discussing here today and to review their
codes of conduct and, in the case of live broadcast, review
their time-delay procedures and redouble their efforts to make
sure that they work. The American people are paying attention,
believe me, and they want action.
But this hearing is also about broadcast radio. Yesterday,
as I flew back through the ice and snow from Michigan, I sat on
the airplane and reviewed my briefing material for today's
hearings. In that material there were notices of apparent
liability issued by the FCC in but a few of its radio broadcast
indecency cases.
Of course, each case had a transcript of the content that
was at issue. Ladies and gentlemen, public decorum in this
committee room precludes me from reading those transcripts out
loud today. But what I will say is that what I read was
disgusting, vile and has no place on our public airwaves.
Simply put, it was awful.
These cases included descriptions of people having sex in
St. Patrick's Cathedral, lewd scenes of a daughter having oral
sex with her father, and the case in which a radio host
interviewed high school girls about their sexual activities
with crude sound effects to match. Sadly, I can go on and on.
I am not a lawyer. But I would hope that it would be beyond
dispute, even to legal scholars, that such content is indecent
under the law and does not belong on our public airwaves,
particularly at times when kids are likely to be viewing or
listening.
In many of these most egregious cases, the radio and TV
stations are owned by huge media conglomerates. However, the
maximum fine that the FCC can impose per violation is $27,500.
In recent remarks, Chairman Michael Powell called on
Congress to dramatically increase penalties available to
prosecute clear cases of violation. To quote Chairman Powell:
Some of these fines are peanuts. They are peanuts because they
haven't been touched in decades. They are just the cost of
doing business. And that has to change.
Well, I am here to tell you, Chairman Powell, you asked for
it, you got it. My friend, Ed Markey, and I, along with
Chairman Tauzin and John Dingell and many members of the
subcommittee, answered Chairman Powell's call by introducing
H.R. 3717, the Broadcast Decency Enforcement Act. This
legislation would increase by ten-fold, to $275,000, the
maximum amount which the FCC can impose per violation.
I believe that broadcasters have a special place in our
society, given that they are the stewards of the public
airwaves. With that stewardship comes certain responsibilities,
including an adherence to our Nation's indecency laws; and for
those broadcasters who are less than responsible, the FCC needs
to have sharper teeth to enforce the law.
We intend to put that legislation on a fast track. I am
pleased to announce that the Bush administration has publicly
backed our effort to increase the fines and has highlighted the
need for the FCC to consider the highest fines when indecent
content is contained in the programming when children are
likely to be in that audience, and I will enter that
administration letter of support into the record.
As I mentioned earlier, it is the FCC's responsibility to
help protect American families from indecency over the public
airwaves. While increasing the fines which the FCC can impose
will go a long way toward cleaning up our airwaves, what I hope
we hear today from the FCC is that it plans to move more
aggressively and use its current enforcement authority on
behalf of American families.
For instance, will the FCC assess fines on each utterance
in a given case? Moreover, I would note that certain
broadcasters and even certain broadcasters' shows are egregious
and repeat offenders.
At some point, we have to ask the FCC: How much is enough?
When will it revoke a license? Should we have a policy of three
strikes and you are off, off the public airwaves?
I yield now to my friend and cosponsor of H.R. 3717, Mr.
Markey, from Massachusetts.
Mr. Markey. Thank you, Mr. Chairman, very much; and thank
you so much for having this very, very important hearing.
The public airwaves are licensed to a relatively precious
few who have the honor, the opportunity and the obligation to
use them as trustees of the public interests. There are those
licensees, however, who are not treating those licenses as a
public trust but as mere corporate commodities; and they air
content replete with raunchy language, graphic violence and
indecent fare.
The Federal Communications Commission is charged with
ensuring that licensees serve the public interest and that
stations do not air obscene, indecent or profane content in
violation of the law and the Commission rules. The FCC has many
tools to enforce these important policy requirements, including
the ability to revoke a station license. Yet it is increasingly
clear that the paltry fines the FCC assesses have become
nothing more than a joke. They have become simply a cost of
doing business, for far too many stations regard the prospect
of a fine as merely a potential slap on the wrist, and the few
fines levied by the Commission have lost their deterrent
effect.
If the CEO of a broadcast company came into your living
room and personally said these words, you would be appalled. If
the Members up here read the transcripts of some of these shows
in the public domain today, as people are watching this
hearing, they would be appalled. However, if the station airs
it to the entire community any time of the day, with kids in
the audience at best, at best right now, all they get is a slap
on the wrist.
This is especially true of the multi-billion dollar media
conglomerates who control a multitude of stations. What
possible deterrent can $27,000 as a fine have on a company
which reaps $27 billion in annual revenues? Moreover, the
Federal Communications Commission has never invoked its right
not to renew a license or to revoke a license for violations of
indecency rules, even when such violations are repeated and
apparently willful.
We need to have a public discussion about the failure to
use this enforcement and deterrent tool, even in the most
egregious cases, and what the FCC plans to do about this issue.
Clearly, many broadcasters need to clean up their act.
Education is also needed to ensure that parents know and
understand the TV ratings system and the tools they can use in
conjunction with that system such as the V chip for protecting
their children, which is why I authored that legislation 7
years ago.
Today's hearing will allow us to explore the FCC's
lackluster enforcement record with respect to these violations.
It will also permit us a glimpse at the conduct of broadcast
licensees who air content that leads to a coarsening of our
culture and directly undermines the efforts of parents in
raising their kids. Parents are increasingly frustrated and
have every right to be angry at both certain licensees and the
Federal Communications Commission itself.
Finally, this hearing will also permit us to gain testimony
on the legislation that Chairman Upton and I have introduced,
along with many of our committee colleagues, to raise the fines
available to the Federal Communications Commission tenfold over
what they have historically been, ultimately to put some real
bite in the punishment that these stations feel if they act
contrary to the interests of the families of our country.
I want to thank the witnesses for their time in preparing
for today's hearing. I want to thank you again, Mr. Chairman,
for calling this very important session.
Mr. Upton. Thank you.
I would like to recognize for an opening statement the
chairman of the full committee, Mr. Tauzin.
Chairman Tauzin. Thank you, Chairman Upton; and let me
thank you for this very important hearing.
Indeed, in 1961, FCC Chairman Newt Minnow called television
a vast wasteland. Do you remember? As we look back from 2004
through the prism of history, I suppose we have to marvel at
how innocent television was in that day and how much we have
seen television change, particularly when it comes to broadcast
decency over these 40 years.
According to the Kaiser Family Foundation, more than four
out of five parents are concerned today that their children are
being exposed to too much sex and violence on television. We
know that the television industry and others got together on a
ratings system to help parents. There is a V chip in new
television sets that parents can use today.
But the question is, what is the FCC's role? What is
Congress's responsibility here when it comes to free use of the
public spectrum by broadcasters and what is the FCC doing when
it splits hairs as it did in the recent decision on singer
Bono's use of an expletive during last year's Golden Globe
awards?
All of us I am sure have heard, as I have, from parents in
our districts concerned and confused about how such language
can be used without any penalties during a show that is viewed
by families across America, during a time when families get
together and watch television. And for the FCC to split a hair
as to whether the word is used as an adjective or a verb is
rather ridiculous. I can tell you folks in my district, I am
sure in yours, can't understand that, and they are confused.
Chairman Powell in a recent C-SPAN-covered event complained
that the current fine schedule for finings that the FCC does
occasionally make of violations of these rules are merely
costs-of-doing-business-level fines. So what Mr. Upton and Mr.
Markey have proposed to us and many of you have already signed
on as cosponsors, I included, is that we end this business of
having a fine schedule that is just a cost of doing business
and have a real fine schedule, tenfold increases in this bill.
The next question then is, is the FCC going to enforce it
vigorously? Is it going to be a strong message here that
families expect the FCC to enforce this concern in a way that
families feel comfortable sharing family hours with their
children and watching television? And what are the networks
going to do about it in terms of complying with, hopefully, a
more vigorous enforcement by the FCC?
I want to thank Fox. I understand Fox has now announced
that, in regard to future live award shows, that they are going
to put in a 5-second delay. That is a good step. I have been on
many radio shows where some delay is built in so that a caller,
live caller who might use some very inappropriate language in
calling into a radio show, can be deleted before it goes over
the air. Networks like Fox obviously can take that route, and I
am pleased at least one of them is announcing a plan to do
that.
So this is a good hearing. We ought to get a good
discussion, a good public airing of what are the limits that we
as an American people would like to see enforced and what are
the enforcement levels that are appropriate here. What is the
responsibility of the FCC? Are they going to continue splitting
hairs when they see a word used like singer Bono used in a
Golden Globe award, or are they going to literally say, no,
that is off limits, and we are going to have some way of
protecting against that becoming the rule on television in
these family hours?
This is a good discussion. We ought to have it.
On the back side of it, we all have to be concerned about
the first amendment and not go too far, obviously, that
whatever we have to do has to respect the fact that our
Founding Fathers very carefully told us in the Constitution as
a government to be careful about the way we regulate or hem in
or define the right of people to speak in our society.
There are some close questions here. But we ought to have a
good discussion of it. I think the Upton-Markey approach of
raising the fines, calling attention to it, calling on the FCC
to be more aggressive in enforcement and calling upon the
networks to hear that message and perhaps execute plans like
Fox has announced to better avoid the conflict and avoid the
contest between first amendment issues that might be posed
here, instead of forcing us all into a conflict that requires
us to define--in constitutionally questionable ways--what are
those limits.
This is going to be a good hearing. I thank the chairman
for it. I want to thank him and Mr. Markey for the legislation
that they have filed and congratulate you for making sure that
the American public will engage us in this discussion. Thank
you.
Mr. Upton. Recognize the gentleman from the great State of
Michigan, Mr. Dingell.
Mr. Dingell. Mr. Chairman, I thank you; and I commend you
for holding this hearing. This has the potential to be a most
useful and an interesting exercise; and, as such, I believe it
should be pursued with vigor. I very much appreciate your
interest and leadership in this matter.
Looking at the committee table and the roster of witnesses
before us, I note there are several significant omissions in
the attendees today to give us testimony on what is going on. I
would note that the Chairman of the Federal Communications
Commission and members of the Commission are not present. I
would note that representatives of the networks and major
broadcasting entities are not here with us today. I would like
to hear what they have to say, both about the substance of the
behavior that we inquire into and also about the public policy
and also about how the different proposals that are before this
committee would impact upon them.
I would note the very interesting phenomenon that a major
network with income of tens of billions of dollars a year will
be subject to penalties of $20 or maybe $200,000 in penalties,
hardly more than a gnat bite in terms of its impact upon the
policymaking of those companies and certainly not enough to
stimulate any corrective behavior to address the concerns of
the committee and the public with regard to proper use of the
networks.
I would like to hear some discussion about whether or not
licenses are being properly renewed to persons who have active
disregard of the need for proper behavior and proper use of
language and the licenses that they are given to use a public
resource. But I don't see anybody at the committee table who
can talk to us about this.
The penalties in the bill that we have sponsored, you under
your leadership, Mr. Chairman, are good. They will be helpful.
But they will again, I think, be regarded as little more than
the cost of doing business. So I think that, while this is a
useful hearing, it is both imperfect and incomplete.
We all know why we are here today. During the last year, 2
of the 4 major networks, NBC and Fox, during live programming
broadcast a word beginning with the letter F into millions of
American homes. The Federal Communications Commission
determined that NBC's broadcast did not violate the agency's
rule against broadcasting indecent speech, and the agency has
not yet ruled on the Fox broadcast.
The fact that the FCC did not penalize the NBC network is
curious at best, and I will discuss that in a minute. But the
more pressing issue is how the networks permitted such speech
to be aired into American homes. They have adequate mechanisms
to address how matters escape into the airwaves and who have
appropriate mechanisms for delay and other controls.
Apparently, none was used here, and I see no signs of
repentance on the part of the network that this was done. Nor
do I see any signs of proper custody on the part of the Federal
Communications Commission in looking to see that the outrage
that is expressed by thousands of Americans is properly
addressed.
The primary responsibility to ensure that network
television does not contain profanity rests not with the FCC,
although they are the ultimate arbiter, but with the networks
themselves. The four major networks not only create the
programming that a large segment of American viewers, including
our children, watch every day, but they are the largest owners
of broadcast television stations that profit handsomely from
this, and it is good that they should. But this gives them a
special responsibility to the citizens who have entrusted them
with the public airwaves. They have a public trust which they
are permitted to use for private profit. That is the system
which has gone on for a long time, and it is perhaps a good
one, but it doesn't seem to be working on matters of
appropriate and important public concern.
It is certainly upsetting to me when this trust is as
blatantly and repeatedly violated as it has been. I am sorry
this panel, I note, does not include witnesses from the NBC and
Fox, because I think the committee would have liked to have
asked them about these broadcasts to again see how this
comported with the policy of the broadcasters and to see how
and what it is they propose to do to address their
responsibilities to see that these networks use the assets
which are given them by the taxpayers in a proper way.
I would like to have inquired what procedures or mechanisms
were in place to prevent the airing of objectionable language.
I would like to have asked what the network has changed in the
way of its practices to ensure that families watching live
network TV need not worry as to what language will suddenly be
thrust into the living rooms for the children of this Nation.
I think the subcommittee would benefit to the answers to
these questions. As yet, no network has chosen to appear.
I will note I have written the presidents of the four major
networks to ask these and other questions. I have asked them to
respond in a timely manner. I have asked also, Mr. Chairman, to
you at this moment, that the letters be entered into the
hearing record and that the record remain open to include the
answers to these questions that are posed by these letters.
As the head of the FCC Enforcement Bureau, I note, Mr.
Solomon, that your decisions are constrained, as they should
be, by legal boundaries, amongst them the Constitution and case
law. I am not here to debate your decision in the FCC case as
being either right or wrong. You have a solid reputation. I am
sure that you can defend your legal reasoning.
The problem, however, is that the decision defies common
sense. When an agency acts in this way, it loses credibility. I
do not think that the American people will accept that we are
powerless either to ensure that the FCC acts or has authority
to act in a proper way or that those who hold licenses to use
public resource are permitted to snap their fingers under the
nose of those who make the networks able to use the airwaves,
which are in fact a public trust for private benefit.
Like many members of the committee, I am concerned also
about the amount of indecent content of broadcast over radio
airwaves. Recent penalties leveled against radio broadcasters
have simply been passed off as the cost of doing business and
have proven inadequate to deter violators. I am, however,
encouraged by yesterday's FCC decision to impose significantly
increased penalties on indecent radio broadcasting.
I would like to know whether or not the FCC needs
additional authority, however, to indeed increase significantly
the levels of the penalties or whether their policies will
include the lifting of licenses of licensees who use the
airwaves in this fashion without regard to anything other than
a modest penalty.
Whether the FCC's decision was motivated by recent public
outcry or whether it was in anticipation of today's hearing
does not matter, although I do find myself curious about this.
Fear is a useful motivator, and I am pleased with the
decision, even though it appears to be less virtue than concern
for the possibility of an appearance today. I look forward, by
the way, Mr. Chairman, to having them before us so that we can
check out this reasoning.
I hope that it signals a heightened seriousness on the part
of the agency. I will be watching closely to see that the FCC
does not backtrack on its new-found virtue on this issue.
I look forward to your testimony, gentlemen of the witness
panel, and particularly I would like to learn more about what
the Congress might do, consistent with the first amendment, to
curtail the increasing amount of filth that permeates the
public airwaves.
I thank you, Mr. Chairman.
Mr. Upton. Thank you, Mr. Dingell.
The gentleman's letters to the broadcasters will be
included as part of the record.
I recognize Mr. Bilirakis for an opening statement.
I would remind members that if they waive their opening
statements they will get an extra 3 minutes on questions.
Mr. Bilirakis. Well, thank you, Mr. Chairman.
There is no question, Mr. Chairman, that indecency is on
the rise in network programming; and I commend you and Mr.
Markey for the legislation. Certainly it is timely.
I have cosponsored that legislation. But really I ask the
question myself, to myself, and that is: Is it enough?
We also know that local broadcast licensees are placed in
the position of having potential legal liability for airing
network programming that is obscene or indecent; and so, you
know, I think we should ask ourselves the questions.
Mr. Dingell has set out a number of questions that we
should be asking ourselves: Can we restore the authority? Isn't
that really maybe the foundational thing that we should be
thinking about here, restoring the authority of the broadcast
licensee to keep indecent material off of the airwaves?
If we are going to let the FCC fine a local licensee for
airing indecent content, shouldn't we make sure that he has the
ability to refrain from airing it?
Now I want to go to the Communications Act of 1934 as
amended, which was intended to control the content that is
disseminated to our viewers. That right which Congress
delegated to local broadcasters in order to ensure their
ability to program in a manner reflective of the tastes and
mores of diverse local, underlined, local communities has
eroded.
We don't have the networks here today to answer questions
but I understand that there will be additional hearings. But
the right-to-reject rule has eroded over time as networks, as I
understand it, have deployed their vast bargaining power with
their affiliates to require them to relinquish by contract--to
relinquish by contract the very rights that Congress
established by that 1934 statute and any amendments thereto.
So, you know, our network oligopolies today routinely are
holding these rights hostage through the use of contractual
provisions that explicitly threaten termination of the
affiliation as a consequence of unauthorized preemption. I
mean, we should have broadcasters here who are faced with that.
We should have networks here who are faced with that. I think
that is really foundational.
Because no matter what we maybe do here regarding
particular language or particular pieces of particular words,
if you will, there is always going to be something coming up,
and we feel very strongly that we should go back to that
concept originated in the 1930's to basically give the
broadcasters, the local broadcasters the right to determine
what should be the content insofar as their local communities
are concerned.
What may fly in one particular area of the country is
certainly not something that is going to fly equally in another
part of the country. And should we basically feel that
executives, network executives in New York and in Hollywood, et
cetera, et cetera, have the right to determine what should be
broadcast in Clearwater, Florida, my community, or your
community in Michigan, or whatever the case may be? I honestly
feel that that is foundational, and I would feel that we are
not addressing this adequately if we don't also address that
particular foundational--in my opinion--problem.
Thank you very much.
Mr. Upton. Thank you, Mr. Bilirakis.
Recognize the gentleman from the great State of Michigan,
Mr. Stupak.
Mr. Stupak. Thank you, Mr. Chairman; and thanks for holding
this hearing. I want to thank the witnesses for being here
today.
This issue has struck a cord in my district since last
year's Golden Globe awards. I have received more than 600
letters and e-mails from constituents demanding that something
be done to control the graphic language used on television and
radio programming. And I agree. How we do that and protect
first amendment rights is the tricky part. Do we simply
increase the fines on broadcasters? Do we try to better define
what indecency is? Do we actually outright ban certain words
from being broadcast at certain hours?
I am not sure, and I don't know if there is a perfect fix
to this issue. I do know one thing, broadcasters and
programmers can make this a lot easier on themselves. They have
the privilege to use public airwaves; and with that privilege
comes responsibility, including the obligation to air
appropriate programming, especially when young people are
likely to be in the audience.
So, again, this issue needs to be addressed. Television and
radio has crossed the line too many times to ignore.
However, I believe there are other first amendment issues
we also need to look into. Last year, Congress made its will
known that a recently issued FCC ruling on media ownership went
too far, and we pushed it back. I was disappointed to see in
the final omnibus appropriation bill behind closed doors the
will of Congress was defied as the administration pushed to
loosen the media ownership rules. More limited ownership means
less differing of opinions, a limitation on our first amendment
rights.
I also believe we need to take a look at selective
censorship by our television networks. For example, I saw today
in the New York Times that CBS is refusing to run an ad during
the Super Bowl by moveon.org. The ad merely talks about the $1
trillion deficit that America faces, who is going to pay for
it. It is not mean. It is not indecent. This network refused to
allow an opinion to be aired.
This is the same network that refused to air the drama
documentary on President Reagan. Mr. Chairman, this all ties
back to media ownership and our first amendment rights. When
you have got just a few corporate executives controlling the
majority of mainstream media, then you have got suppression of
ideas and eventual censorship.
I ask that this committee hold a hearing on all first
amendment rights and issues and censorship in this country.
With that, Mr. Chairman, thank you for the time. I yield
back the balance of my time.
Mr. Upton. Thank you.
The gentleman from Texas, Mr. Barton.
Mr. Barton. Thank you, Mr. Chairman.
You can't play high school football as badly as I did in
the 1960's and not have heard some of the words that we are
trying to restrict the use of today. I might add that when they
were used based on my performance, they were appropriately
used.
But that is not why we are here. As a society, we have an
obligation to the broader community to prevent the use of
language over the public airwaves that is obscene, indecent or
profane.
Now if you want to go to a movie that is rated R because of
the language, you know, there is some discretion there. It is
protected by the first amendment. If you want to watch a cable
network that is airing material that is clearly labeled before
the program is aired that this is adult material, there is
discretion there.
But if you inadvertently go out of the room to pop some
popcorn, your children are watching an award ceremony live,
there is no discretion there. So this bill that Mr. Upton and
Mr. Markey have propounded is long overdue, and I am proud to
be an original cosponsor.
I am not a prude and I hope I am not hypocritical or
sanctimonious, but there are times and places where you can
express oneself very vigorously in a way that we would not want
to in a public way, but there are also times and places where
we have to conduct ourselves according to societal norms, and
that is what this bill is all about.
I could not support it more strongly. I am very worried
about our entertainment industry and our entertainment figures.
They appear, more and more, to want to say and do things simply
for the shock value. That demeans society. That demeans us. So
I am very, very glad that Mr. Markey and Mr. Upton are
sponsoring this bill; and I am very pleased by the comments on
it, both by Mr. Tauzin, full committee chairman, and Mr.
Dingell, the full committee ranking member.
I hope we can move this bill expeditiously, and I hope this
is the start of regaining normalcy over the public airwaves.
With that, I would yield back my time.
Mr. Upton. Thank you.
Mr. Green.
Mr. Green. Thank you, Mr. Chairman; and I appreciate you
calling the hearing today.
As my colleagues have said, this is an issue that a number
of us have been hearing about, and I am glad that our chairman
and our ranking member have increased legislation for
increasing penalties for indecent broadcast, of which I am an
original cosponsor. But that does no good without aggressive
enforcement, and many Americans believe that radio and
television programming is crossing the line.
The FCC is trying to respond to public pressure for action
in response to recent controversial uses of profanity during
the live award show broadcast, but the testimony of our
panelists today reveals we do not really know what the answer
is to the title: Can that be said on TV.
In addition to vague and arbitrary definition of broadcast
indecency, we often do not know how far decency regulations can
go without running into the first amendment. The choice is to
fight extensive cases in court against powerful companies that
the government may lose and set a serious precedent, and it is
likely that FCC seeks to reverse its Golden Globes decision. We
would see this whole thing back in court, but somebody has to
set a standard, and if the FCC cannot do it, it is up to
Congress to do it.
Broadcasts often take a lot of abuse, but it is driven by
advertising, and funding strictly follows those ratings. It is
the dirty words we hear or the lowest level of broadcasting. I
see in a lot of our networks it looks like a race to the
bottom, but it is hard to explain that to your shareholders
because they are willing to push the envelope while you are
not.
Today's testimony from Mr. Wertz notes that the National
Association of Broadcasters' code of ethics was struck down by
the Department of Justice on antitrust grounds, and I believe
it is time to look at the private sector for a collaborative
solution. If broadcasters can make clear standards that they
can understand and agree to abide by, perhaps we can avoid
lengthy court challenge to the FCC enforcement actions. It
would also reduce the pressure on broadcasters from advertisers
to push that envelope.
Just 1 day before this hearing, the FCC announced a
$755,000 fine against a large broadcaster based in my home
State. I am not going to defend the behavior of those shows
that they were cited for, and I believe that strong penalties
were needed for the indecency, and again that is why I support
this legislation.
But an interesting proposal was made to return to the days
of a Code of Ethics. They suggested a private sector task force
to be convened by the FCC to develop media guidelines that
everyone can agree with would be in force. Such a private
sector task force can also include other content providers like
cable and satellite providers.
The current system is clearly not working to the
satisfaction of the parents' groups or broadcasters, and if you
listen to the opening statements also from Members of Congress
it would likely be a lot easier to try a private sector
solution first, rather than spending millions of taxpayers
dollars on long court battles that the FCC may lose. But,
again, you do not make those decisions until you go to the
courthouse, so I do not think we should be afraid to make the
courts do what the American people want.
But I am looking forward to hearing the panelists' ideas,
Mr. Chairman. Again, thank you for this hearing.
Mr. Upton. Thank you.
Mr. Whitfield.
Mr. Whitfield. Mr. Chairman, thank you very much; and I
also want to thank you for holding this hearing and you and Mr.
Markey for the legislation that you have introduced.
This is one of those issues that the American people are
particularly frustrated about as far as their inability to have
any impact. Many of them, in the letters I received, complain
about their impotency in trying to curtail the use of indecent
language on radio and on television, and so this legislation
hopefully can help address that. But Mr. Bozell, in his
testimony which I read earlier, pointed out something that I
think contributes to this feeling of frustration on behalf of
the American people, and that is the inaction of the FCC. I am
hoping that this hearing will demonstrate and help us obtain
some answers one way or the other from that agency.
He points out that, despite a $278 million annual budget,
they do not have one person assigned to this issue. He points
out that at the December 2002, Billboard Music Awards on Fox,
the entertainer Cher used the very same word Bono used, only it
was not an adjective, it was a verb, and years have gone by and
no action has been taken on that incident.
He points out, also, that if you file a complaint with the
FCC that you are required to attach a transcript of the actual
show in question, which is almost impossible for any person to
do, to have access to the transcript, and if you look at the
FCC Web site, according to Mr. Bozell, they instruct you to do
that.
In addition, he points out that, in 2003, the FCC indicated
that it had received in the second quarter of 2003 only 351
complaints, and yet the Parents Television Council members
themselves filed 8,000 complaints. Then another allegation that
he makes in his testimony is that E-mails from people filing
complaints are being returned undeliverable and was told by
someone at the FCC that these complaints were being
deliberately blocked.
Now I do not know if this is true or not, but those are
significant allegations, and it is easy to see, if they are
true, why the American people feel that they are impotent in
trying to deal with this issue or even get a response from the
Federal agency responsible. So I am delighted that we are
having this hearing, look forward to the testimony, and thank
you, again, and I yield back the balance of my time.
Mr. Upton. Mr. Davis.
Mr. Davis. Thank you, Mr. Chairman; and thank you for
calling what I hope is the first of several hearings on this
issue.
Let me start by saying I am acutely aware of my
responsibility and our responsibility for dealing with the
first amendment. At this time in our history I think it is
heavily incumbent upon us that we not take any actions,
particularly unintended actions, that would encroach upon
people's ability to criticize the government, particularly the
President or the Congress.
Having said that, it is perfectly clear that the courts
have rightly ruled that obscene material is not protected by
the first amendment and indecent material can be regulated by
the first amendment.
I would like to focus for a couple minutes on the content
of the Clear Channel broadcasts that are now the subject of the
FCC proceeding, since they are broadcast from my community.
I believe Mr. Dingell referred to the content itself. I
think that is a generous description. I, too, am disappointed
that representatives of Clear Channel were not here today to
read into the record the transcript of what was broadcast on
their stations. I think it is important, Mr. Chairman, that
they do appear in front of this committee. I would like to
understand whether they think this material is indecent or
obscene. I cannot tell from the record. It appears they may be
contesting that it is indecent. If so, I think they should say
why.
I am also concerned that the FCC does not have the adequate
tools to address a situation like this. They have proposed a
fine of $27,500 for each of the apparent 26 indecent
violations. They have also suggested that serious multiple
violations of this kind could at some point lead to the
commencement of license revocation proceedings.
I think that the bill that you and Representative Markey
have introduced is a first step, but perhaps further action by
this subcommittee will be necessary if, in fact, this is often
about the bottom line of this particular company or others and
the only way to effectively deal with this type of motivation
behavior is to more aggressively tackle the bottom line.
I am also very concerned about what the FCC intends to
undertake from an enforcement standpoint. With whatever tools
Congress provides to them their enforcement should be more
timely than it has been. It should be deliberate. It should be
firm. It should be clear. So I hope that we will have further
hearings on this, Mr. Chairman, as well as on your bill, and at
the next hearing we can have the appropriate representatives of
the FCC and these broadcasters, both radio and television,
appear to describe what their position is on this content and
what they intend to do about it in the future.
Thank you, Mr. Chairman.
Mr. Upton. Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. I will try to be
brief.
Many members have said and raised the concerns and issues
that I think all of us are concerned with.
I am reminded of the legislation we passed with your help
and Chairman Markey and the leadership, the dot kids dot U.S.
legislation, which is an attempt to protect kids, and wherein
that legislation dot kids dot U.S. there is not any ability to
have Web radio in that venue, rightly so, concerning the
concerns we are addressing today.
The Chicago Tribune editorialized this on January 22 in
opposition to the tenfold increase by stating: Remember this
whole fuss is over a single word uttered once in the excitement
of the moment.
They are wrong. What has occurred here is this is the
proverbial straw that broke the camel's back. The public, since
I have been a Member of Congress and going on my eighth year,
has seen a decline in the decency standards over the public
airwaves. So this whole revolt now has occurred by the public
saying ``enough's enough,'' and you can see it by the members
here, our opening statements, and the fact that I think this
legislation as proposed is going to move quite rapidly through
the committee process.
You have got both chairmen on board, subcommittee chairmen,
bipartisan. It is going to get passed and passed by the
President in response to this whole issue.
Industries are starting to take notice. I know NBC deleted
a 10-second delay for this year's Golden Globes telecast, which
is a start. It is not perfect, but industry has got to step up
to the plate and start doing a better job of policing this
activity and the concern will be intent.
I remember when I was first elected on the local radio
station and they did a trivia show and I had to guess the right
word and they said some word for fertilizer. I should have said
manure. I said something else. But, of course, that went over
the public airwaves. So, you know, I--really, if you go by the
letter of the law, I am telling you: Man, get my wallet out and
pay the damn fine.
But I think there is a difference here. If you listen to
the opening statements about intent, intent to degrade, intent
to abuse, to appeal to the lowest sector of our--the evil part
of our sinful nature and degrade. So intent is always--and that
is always tough in legislation, to evaluate what was the real
intent, but I think in some of these broadcasts we can clearly
understand what the intent is, and that is clearly to destroy
the fabric of society.
Thank you, Mr. Chairman, for the time.
I look for quick passage.
Mr. Upton. Mr. Rush.
Mr. Rush. Thank you, Mr. Chairman, for holding this
important hearing on indecent and obscene broadcasting or the
appropriately titled hearing, ``Can you say that on TV?''.
We all know that it is a violation of Federal law to
broadcast obscene or indecent programming. Along the same
lines, the courts have continually held that indecent material
is protected by the first amendment and cannot be banned
entirely. Therefore, it may be restricted, but it cannot be
banned.
Now, Mr. Chairman, other members of the committee, there,
indeed, lies the problem. As TV and radio producers jockey for
ratings, we are increasingly seeing the envelope pushed further
and further into the zone of what I call over-the-top
sensationalism. Congress has charged the FCC with enforcing
indecency standards. Balancing the standard against the first
amendment is not an easy task.
The central issue is whether the government should be
allowed to regularly content our programming, but the issue is
how do we determine what is acceptable when there are so many
different types of people with different standards.
Nevertheless, we must all be mindful of our responsibility,
which is to protect the children at all costs from obscene and
indecent materials on the airwaves.
On that note, I am pleased to see that the FCC is taking
this responsibility more serious than it has in the past. Its
decision to reverse the FCC's Enforcement Bureau October 2003,
ruling regarding Bono's use of the ``F-word'' at the
aforementioned Golden Globes awards is a step in the right
direction. However, more work needs to be done, especially on
how the FCC applies its indecency rule vis-a-vis the public. I
believe that the requirement that viewers or listeners include
a tape or a transcript of the program in question with their
complaints is overly burdensome and totally unfair.
That said, Mr. Chairman, I am looking forward to this
hearing and to the testimony of our distinguished panelists,
including the FCC's views on how it plans to enforce its new
broadcasting indecency standards.
Thank you, Mr. Chairman; and I yield back the balance of my
time.
Mr. Upton. Thank you.
Mr. Pickering.
Mr. Pickering. Mr. Chairman, I thank you for having this
hearing. I look forward to the testimony.
I commend the FCC for reversing its earlier decision
concerning the use of what we all agree is a profane word but
which all parents know and understand and even our children
understand would be a profane word and language.
We are here today dealing with an age-old question. We
think that this is somewhat new to the human condition, but it
has actually always been with us. The question is: How do you
create the standards and maintain the standards in a modern age
with modern technology and modern communication?
It is something that a member of parliament in Great
Britain in the late 1700's tried to address. His name was
William Wilberforce, and he combined with William Pitt, and at
the time he had two objectives. One was the abolition of
slavery, and the other was the reformation of manners in Great
Britain, and, as you looked to that movement, they were
successful. They had the success of seeing the eventual
abolition of slavery in Great Britain. It spread over to the
colonies and led to enlightenment, and the principles of our
Founders, freedom and equality. But what they also had was a
decent society.
A healthy democracy also requires a decent society, that we
are honorable, generous, tolerant, good.
DeToqueville said, America is great because America is
good.
Now our country had to struggle with the freedom and
equality through the Civil War and the civil rights movement,
but in the last generation the question is, are we still
decent, are we still good and how do we maintain that healthy
society? They are all, whether we like to admit it or not,
interrelated. Do we have to have a culture that is profane,
vulgar, crass, coarse, and do we want to uphold the examples
that would hurt our culture, degrade our culture? With the
public airwaves, we have a chance to hopefully affirm that we
do want to be a good, decent people, a good, decent Nation,
that they are all related to the health and well-being of our
country. So we do need to continue with the FCC. We do need to
set high standards.
I think the defines and enforcement will help. I do think
the resolutions and the coming together--I have received
probably over 5,000 E-mails on this. Parents and families--I
happen to be the father of five sons. We get it. We need to
make sure that our networks get it and our corporate leadership
get it.
There is a corporate responsibility not only not to have
fraud and abuse in a financial setting but also not to corrupt
or degrade our culture. So I hope that not only can we act as a
Congress to set our standard but our corporate leaders can
voluntarily agree to set standards and to abide by them. It
will take all of us working together to create a free equal
decent country and culture, and I think that is why we are
here.
Thank you, Mr. Chairman.
Mr. Upton. Mr. Wynn, are you ready or would you like to
defer?
Mr. Wynn. Thank you, Mr. Chairman. I will defer.
Mr. Upton. Mr. Bass.
Mr. Bass. Thank you, Mr. Chairman.
These opening statements have been interesting and
thoughtful. I support the legislation and co-sponsored it and
commend the chairman for holding the hearing.
I recall back in the early days of my brother's and my
business I used to do a lot of the delivery work, and I
remember 1 day driving to South Boston with a truckload of
product and backing up and this fellow was helping me unload.He
used the same word that was under discussion here today about a
dozen times in every sentence. It had absolutely nothing to do
with the actual meaning of the word but simply it was the way
he talked, and I remember finally I could not stop myself from
laughing because it was almost like stuttering, and so it is an
interesting problem.
I think it is a sad commentary on modern society that
people who are well-known, well-educated, and in many instances
very famous resort to this kind of language in order to
describe enthusiasm, and I think it is entirely appropriate
that the Federal Communications Commission stand as a judge of
what is--what my friend from Mississippi described as what is
good and decent in society.
Frankly, I find it difficult having my two children see
much of what is on commercial television in the evening, not
because there are these particular words, because there aren't,
but the innuendos and interpretations of what is said,
especially on some of the more inane sitcoms that are up on
television, really are inappropriate for young people to listen
to or see, so it is an interesting issue.
I look forward to hearing the testimony of our witnesses
here today, and I yield back.
Mr. Upton. Mr. Terry.
Mr. Terry. Thank you, Mr. Chairman, and appreciate your
bill and allowing me to be part of it.
Over our time home in December, this discussion here brings
back a little memory of having some time with my children,
three boys, ages 9, 6 and 3. The 6-year-old called the 3-year
old stupid, and my wife turned and said, ``watch your mouth,''
and the 6-year-old turned around to my wife and said, ``I did
not say the F word,'' which was then kind of cute.
But it is just interesting to me, looking at it in a social
aspect, that my 6-year-old knows that word. Because, frankly,
we really police what they are allowed to watch and what they
say, and still in society they are able to pick up on that, and
the 6-year-old is smart enough to use the phrase, ``F word,''
instead of saying the word to my wife, which would have gotten
his mouth washed out with soap.
But I want to comment and build on slightly with what John
Shimkus said, and that is: I do not think the straw was
necessarily Bono saying the word. As a U-2 fan, I will tell you
what: I expect Bono to say that. What was disappointing was
that the Golden Globes awards were not on a delay and were not
ready for that. Because I am going to tell you what: Rock and
roll stars and people say that word.
What is most disappointing, I think, what the basis of
people's complaints to me in my office was the way the FCC
approved that word in its use that Bono said. That is when
people went ballistic. That is when we got the E-mails and the
letters.
I will tell you, my observation from going around my
community is parents in particular and people are sick and
tired of the way that we, as the American society and
government, have allowed this free reign of use of words and
innuendos, particularly on over-the-air radio, which hasn't had
much discussion here today, and TV. There are a lot of
intellectual legal issues at stake, constitutional law, first
amendment rights, but I got to tell you: I am a lawyer. I do
not see too many first amendment issues of why we should allow
someone over public airwaves to use that type of language.
It seems rather simple to me to be able to control that,
but I think one of the reasons why over-the-air TV is
broadcasting so edgy is that it has to compete with cable. Then
we get into the private airwaves versus the public airwaves
discussion and should there be a difference in the control over
that.
Probably in a legal standard, yes. In a community, probably
not.
But we have got to work through those type of issues,
because I will tell you what: The people, at least in my
district, are hungry for change. So I am anxious to hear our
speakers here today, our panel, that were bold enough to show
up and appreciate the efforts of Fred, our subcommittee
chairman, and this committee, and I yield back.
Mr. Upton. Mr. Walden.
Mr. Walden. Thank you, Mr. Chairman; and I appreciate you
holding this hearing as well. Because, obviously, there is a
problem out there on the airwaves, and it comes into our living
rooms or bedrooms or wherever else we have televisions and
radios.
I guess, as I was thinking about this coming out, I thought
about how--it is sort of like being in an earthquake, standing
in the doorway, holding the door from going sideways and
yourself and realizing the whole building is collapsing around
you. You think you have solved the problem, and you really
haven't. This bill will send a very strong signal to broadcast,
but certainly that takes care of the first six channels on my
TV. What happens on the other 400? I think that is where the
worst abuse is, if you are concerned about indecency and
obscenity and vulgarity, is that what else there is out there
outside.
I think, because of the laws that are in place, and then
you figure, well, you have got 100, 300, whatever number of
channels coming down from satellite, if you have that. Most
people get their TV off of cable one way or another today.None
of that is regulated to any measurable way and I guess would
not be under this legislation.
If we define 7 dirty words or 14 dirty words, I will tell
you now this culture of ours will create 14 new ones that will
mean the same thing, and every kid over the age of nine will
know what that means. Then you throw in the mix what is coming
in over the Internet in terms of the music that is coming down
legally and in most instances illegally, the video clips that
any kid with broadband now can download.
It is a sad commentary I think on our culture that we have
to go to those extremes with this vulgarity to entertain, and
it does not need to be so, and so I commend you for this
hearing.
I would like to see us--and I will, again, say I am in
broadcast by trade and background and continue. I remember the
days of the NAB Code of Conduct, and it seems to me maybe
somebody on the panel can address it, that that got thrown out
from some restriction of trade issue or something.
The industry--and I do not mean just broadcasters--but the
communication industry out there should develop a standard so
that, you know, one does not have the edge by being more vulgar
you can attract a certain audience. That is what is happening
today. I mean, look at some of the top-rated shows out there,
are cable shows, and they are the ones using the foulest
language. I am not here to pick on them necessarily, but it is
the way of the world, and this bill is not going to solve it
necessarily.
What is going to solve it is when the country gets together
and those providing this entertainment, quote, unquote, get
together and live by a standard of conduct that is decent, that
avoid unnecessary indecency and all those things.
So I appreciate the hearing. Hopefully, we can make
progress.
Mr. Upton. Thank you.
Mr. Pits.
Mr. Pitts. Thank you, Mr. Chairman, very much, for holding
this important hearing and for allowing me to participate.
As you know, I am not a member of this subcommittee.
However, I am gravely concerned about the language that has
been permitted on network television and radio; and I agree
with you that it is time that this committee take a close look
at the FCC indecency standards.
I, too, was outraged when I learned that the FCC
Enforcement Bureau decided that it was permissible for the ``F-
word'' to be used on the Golden Globes awards on January 19,
2003. This decision I think sent a poor message to the
entertainment industry about the FCC's willingness to enforce
standards for broadcast decency.
News reports indicate that FCC chairman Michael Powell is
circulating a draft order among the commissioners of the FCC to
reverse the Enforcement Bureau's decision. If approved by the
full FCC, this would be a significant step in the right
direction. If this happens, the FCC will have done the right
thing; and I will be the first to say that we should give
credit where credit is due.
However, Mr. Chairman, I do not think that we should be
satisfied with simply a reversal in the decision.
The FCC has been entrusted with enforcing our Federal
decency laws and should be expected to do so. There are plenty
of laws on the books regarding this matter, and the FCC just
needs to enforce them. That is why I am pleased to be a
cosponsor of your bill, Mr. Chairman, H.R. 3717, the Broadcast
Agency Enforcement Act, which increases the amount of fines
that can be levied by the FCC so that networks are not tempted
to air indecent language and then pay a small fine as a cost of
doing business.
I am also pleased to be a cosponsor of Mr. Pickering's
bill, H.Res. 500, which calls upon the FCC to vigorously
enforce the Federal decency laws, using all the Federal
regulatory and statutory tools at its disposal; and such
include levying fines for each utterance of obscene, indecent
or profane material and instituting license revocation
proceedings for multiple violations.
Mr. Chairman, families are tired of having to cover their
children's eyes and ears every time they turn on television.
They are frustrated that the media industry has seemingly been
able to broadcast any type of behavior or speech that they feel
will bring in advertising dollars.
Meanwhile, they feel that the Federal Government has sided
with media elites and turned a blind eye to the concerns of
ordinary moms and dads. Many parents' standards of common
decency are repeatedly offended and their parenting is
undermined by the onslaught of material on television and
radio.
I think we must protect our children from such abuse of
public airwaves. Broadcast airwaves belong to the American
people, not to the networks. The privilege of conducting
business over the airwaves should always be conditional on
their willingness to adhere to certain standards of common
decency.
So thank you, again, Mr. Chairman, for holding this
important hearing; and I yield back the balance of my time.
Mr. Upton. Mr. Gonzalez.
Mr. Gonzalez. Thank you very much, Mr. Chairman, and to
Ranking Member Markey for allowing me to be part of today's
hearing.
I am the newest member of the committee but have not been
assigned anything in the subcommittee level until this
afternoon. I will attempt to be really brief and that is I
think the proposed legislation is the right direction we should
be taking.
The biggest concern that I have had since I arrived in
Congress is that we allow things to reach a crisis stage and
then we overreact legislatively and that can be a real danger,
especially in this particular arena, when it could encroach on
constitutional liberties and rights that have been part of the
very foundation of our country.
The libertarian's dream of self-restraint and self-
regulation is but a dream but one that we should aspire to. It
is achievable only when you have proper governmental oversight
by a regulatory agency that is willing to assume that type of
responsibility with the appropriate tools.
The goal should be one standard. The goal should be that
that standard is uniformly applied and that it is uniformly and
fairly enforced by the regulatory agency.
I do believe that we must work in partnership with the
industry, and there is a suggestion by Clear Channel that a
local values task force--I am not so sure that is the best
thing to call it--be formed.
In addressing another member's observation, this would
include television, radio, cable, and satellite networks to
make it a level playing field for everyone out there that
brings in the signal into our homes that may have this kind of
content.
Again, I wish to thank the chairman and the ranking member
for this opportunity.
Mr. Upton. Thank you.
All members have now completed their opening statements.
[Additional statements submitted for the record follow:]
Prepared Statement of Hon. Paul E. Gillmor, a Representative in
Congress from the State of Ohio
I thank the Chairman for calling this timely hearing concerning the
FCC's enforcement role with regard to broadcast indecency.
After two separate incidents over the past year, both involving 4-
letter expletives during television network awards shows, I am glad to
see that a firestorm of pubic criticism is currently serving as the
primary impetus for bringing this important issue to the table. My
district particularly mirrors my comments today, to the tune of
numerous letters, telephone calls, and 500 constituent emails over the
last two months.
I would also like to commend my colleagues' quick legislative
action. Of note, I am an original cosponsor of a measure introduced by
Chairman Upton and Ranking Member Markey that would increase the
penalties ten-fold that the FCC may levy for obscene, indecent, or
profane broadcasts, in addition to recently cosponsoring a resolution
supporting vigorous enforcement of our nation's federal obscenity laws.
Furthermore, I must recognize the FCC for their willingness to
brief our panel's committee staff regarding the issue of indecency last
month in addition to Chairman Powell's attention and interest in
overturning a recent FCC ruling and his support for a sharp increase in
penalties for violators.
As radio and television programmers continue to push the envelope,
I look forward to hearing from the well-balanced panel of witnesses
regarding the clarification of pertinent rules and definitions as well
as potential remedies to the current situation and their impact on the
First Amendment. Again, I thank the Chairman and yield back the
remainder of my time.
______
Prepared Statement of Hon. Barbara Cubin, a Representative in Congress
from the State of Wyoming
Thank you, Mr. Chairman.
I would like to thank you for holding this hearing to examine the
appropriateness of what is being broadcast over the public airwaves and
whether our enforcement tools are adequate to curb and rollback the
increasing instances of foul language on television and radio.
The event which, for all intents and purposes, has led to this
hearing was a broadcast of the Golden Globes about this time last year
where Bono B a rock singer, not to be confused with my esteemed
colleague from California, Congresswoman Bono B uttered the following
on live television: ``This is F***ing brilliant!@ After review of this
clearly inappropriate exclamation, the FCC initially declared that it
did not constitute Aindecent'' language. While I have heard the
Commissioners are reconsidering this initial ruling, it has still
called into question just what should or shouldn't be considered
``indecent.''
I understand the difficulties that have vexed the Commission in
dealing with this, and I understand how valuable the First Amendment
protections of our Constitution are B reconciling free speech matters
is a very challenging prospect. Nevertheless, just as one cannot shout
fire in a crowded theater, I can't imagine any instance when public
broadcast of the F-word can be deemed appropriate.
Whether it is used in the context of an adjective, noun, adverb,
verb B or even pronoun, its broadcast ought not be allowed. I am not
certain how we achieve this, but I do know that if anyone in my house
walked around expressing how ``F***ing brilliant!'' something was,
they'd find themselves on my doormat in short order.
We have the opportunity in today's hearing to map out steps that
can be taken by Congress, the FCC and broadcasters that will reverse
the trend of ``one-upmanship'' that is leading the quality of our
broadcast programming down the toilet. The Bono incident has focused a
bright light on what has been a gradual slippage in the appropriateness
of the content on our airwaves. If we don't address this in short
order, a lot of folks may find themselves on the nation's collective
doormats.
Thank you Mr. Chairman, I yield back the balance of my time.
Mr. Upton. I appreciate all four witnesses being able to be
here, particularly my constituent, Bill Wertz, who somehow
managed, like I did, to get back from the mitten in ample time
for today's hearing.
I also deeply appreciate all four of you being able to get
your testimony in advance before the subcommittee. We were all
able to review it last night.
Your testimony is made part of the record in its entirety,
and at this point we would like you to summarize your testimony
in a period not to exceed 5 minutes.
We are very happy to have Mr. David Solomon, Chief of the
Enforcement Bureau of the Federal Communications Commission;
Mr. Brent Bozell, President of Parents TV Council; Mr. Robert
Corn-Revere, partner of Davis Wright Tremaine; and Mr. Bill
Wertz, Executive Vice President of Fairfield Broadcasting
Company in Kalamazoo.
I would note that the House is going into recess, subject
to the call of the Chair, and when the last buzzer or two
sounds we will begin with your 5 minutes. That should be it.
Mr. Solomon, welcome back to the subcommittee.
STATEMENTS OF DAVID SOLOMON, CHIEF, ENFORCEMENT BUREAU, FEDERAL
COMMUNICATIONS COMMISSION; L. BRENT BOZELL, III, PRESIDENT,
PARENTS TELEVISION COUNCIL; ROBERT CORN-REVERE, PARTNER, DAVIS
WRIGHT TREMAINE LLP; AND WILLIAM J. WERTZ, EXECUTIVE VICE
PRESIDENT, FAIRFIELD BROADCASTING COMPANY
Mr. Solomon. Thank you.
Good morning, Mr. Chairman and members of the subcommittee.
Mr. Upton. You might just get the mike a little closer.
Mr. Solomon. I appreciate the opportunity to appear before
you today to discuss the Commission's enforcement of broadcast
indecency restrictions.
Many of us, particularly with children, are increasingly
concerned about the quality of broadcast television.
Broadcasters have a unique responsibility to act in the public
interest and, in particular, to air appropriate programming
when children are likely to be in the audience. When
broadcasters fail, the Commission stands ready to enforce its
indecency rules.
Chairman Powell has been outspoken on this issue. He
recently indicated, for example, that ``this growing coarseness
is abhorrent and irresponsible.''
Under Chairman Powell's leadership, the Commission has
taken indecency enforcement very seriously. To that end, we
have strengthened our indecency enforcement in several
respects. Most prominently, the Commission has increased the
dollar amount of its enforcement substantially. During the past
3 years, the Commission has proposed indecency enforcement
actions that, in the aggregate, significantly exceed the amount
proposed during the prior 7 years under the prior two
Commissions. In addition, the chairman has proposed a tenfold
increase in the maximum indecency forfeiture permitted by the
Communications Act that several of the members have discussed
already.
Before I go into further detail about our indecency
enforcement efforts, I will provide some brief background about
the legal landscape.
Section 1464 of the Criminal Code prohibits the broadcast
of indecent language. A subsequent statute and court decision
established an indecency safe harbor from 10 p.m. to 6 a.m. The
Commission has authority to issue both monetary forfeitures of
up to $27,500 for each indecency violation and to revoke
broadcast licenses for indecency violations.
Since the 1970's, the Commission has defined indecency as
follows: ``language or material that, in context, depicts or
describes terms patently offensive as measured by contemporary
community standards for the broadcast medium, sexual and
excretory activities or organs.'' The courts have affirmed this
definition as consistent with the first amendment.
As previously noted, we take our indecency enforcement very
seriously; and we have taken strong action in this area under
Chairman Powell's leadership. Here are some highlights of how
we have stepped up our indecency enforcement:
First, including actions taken yesterday, since Chairman
Powell took office in mid-January 2001, the Commission has
issued 18 proposed indecency forfeitures, so-called notices of
apparent liability, for a total of about $1.4 million in
proposed fines. This dollar amount significantly exceeds the
$850,000 in indecency forfeitures proposed during the prior 7
years.
Second, starting last year, the Commission has increased
the amount of its proposed forfeitures. Instead of routinely
proposing indecency forfeitures at the $7,000 base amount
provided in the Commission's Forfeiture Policy Statement, the
Commission has begun proposing in appropriate cases the
statutory maximum of $27,500 per incident. Applying this
stepped-up approach to the incidents, the Commission proposed
an indecency enforcement action last year of over $350,000 for
multiple violations. Yesterday, it proposed an indecency
forfeiture of $700,000, which is the highest single forfeiture
for any violation in the history of the Commission.
Third, last year the Commission provided explicit notice to
broadcasters that it may begin license revocation proceedings
for serious indecency violations. The Commission now reviews
indecency cases that occurred after that notice with the
possibility of revocation being a very serious revocation.
Fourth, last year the Commission also provided explicit
notice to broadcasters that it may treat multiple indecent
utterances within a single program as constituting multiple
indecency violations, rather than following its traditional
per-program approach. Again, with respect to cases after that
announcement, the Commission is reviewing the facts with this
new approach in mind.
Fifth, also beginning last year, the Commission broadened
its indecency investigations to cover not just the station that
is the subject of the complaint but other co-owned or
affiliated stations that may broadcast the same potentially
indecent material. The Commission also began collecting more
extensive information from broadcasters in the course of our
indecency investigations.
Sixth, the Chairman recently proposed that the Commission
reverse the Enforcement Bureau's October 2003, Golden Globes
award ruling. The Bureau made this decision based on precedent
stating that the broadcast of a single expletive, including the
F word, was not indecent. The Chairman has now proposed to
reverse the Bureau. If the Commission agrees to this approach,
it would represent a significant strengthening of indecency
enforcement. I can assure you the Enforcement Bureau will be
fully committed to enforcing the law in the manner set forth in
its decision.
We believe Congress can also assist us to enforce the
indecency restrictions in a strong and effective manner. In
this regard, Chairman Powell has supported increasing by 10 the
maximum forfeiture amounts specified in the Communications Act
for indecency; and we hope Congress will enact such
legislation.
We appreciate the leadership of Chairman Upton, Congressman
Markey and others on this issue.
In sum, I want to assure the subcommittee that the
Commission is fully committed to vigorous enforcement of the
broadcast indecency restrictions in order to protect the
interests of America's children. We stand ready to work with
you to support this important public interest objective.
Thank you, and I would be happy to answer any questions.
[The prepared statement of David Solomon follows:]
Prepared Statement of David Solomon, Chief, Enforcement Bureau, Federal
Communications Commission
Good morning, Mr. Chairman and members of the Subcommittee. I
appreciate the opportunity to appear before you today to discuss the
Commission's enforcement of broadcast indecency restrictions.
Many Americans, particularly those of us with children, are
increasingly concerned about the quality of broadcast television.
Broadcasters have a unique responsibility to act in the public interest
and, in particular, to air appropriate programming when children are
likely to be in the audience. When broadcasters fail, the Commission
stands ready to enforce its indecency rules.
Chairman Powell has been outspoken on this issue. He recently
indicated that ``this growing coarseness . . . is abhorrent and
irresponsible. And it's irresponsible of our programmers to continue to
try to push the envelope of a reasonable set of policies that tries to
legitimately balance the interests of the First Amendment with the need
to protect our kids.''
Under Chairman Powell's leadership, the Commission has taken
indecency enforcement very seriously. To that end, we have strengthened
our indecency enforcement in several respects. Most prominently, the
Commission has increased the dollar amount of indecency enforcement
substantially. Including actions anticipated in the near future, during
the past three years, this Commission will have proposed indecency
enforcement actions that, in the aggregate, significantly exceed the
amount proposed during the prior seven years combined under the prior
two Commissions. In addition, the Chairman has supported a 10-fold
increase in the maximum indecency forfeiture permitted by the
Communications Act.
Each of the Commissioners has played an important role in our
stepped-up indecency enforcement under Chairman Powell. Commissioner
Copps has been out front in focusing on the importance of this critical
issue. Commissioner Martin has successfully urged the Commission to
count multiple indecent utterances within a program as multiple
violations. Commissioner Abernathy has been a leader in the development
of the ``FCC Parents' Place'' on our web site, which provides helpful
information to parents on a host of family-related issues, including
indecency. Commissioner Adelstein has also been a strong supporter of
indecency enforcement.
Before I go into further detail about our indecency enforcement
efforts, I will provide some brief background about the legal
landscape.
LEGAL BACKGROUND
Section 1464 of the Criminal Code prohibits the broadcast of
indecent language.<SUP>1</SUP> A subsequent statute and court decision
established an indecency safe harbor from 10 p.m. to 6 a.m.<SUP>2</SUP>
Thus, the Commission's indecency enforcement is limited by law to the
hours between 6 a.m. and 10 p.m., and our indecency rule incorporates
this limitation.<SUP>3</SUP> The Commission has authority both to issue
monetary forfeitures of up to $27,500 for each indecency violation and
to revoke broadcast licenses for indecency violations.<SUP>4</SUP>
---------------------------------------------------------------------------
\1\ 18 U.S.C. 1464
\2\ The Public Telecommunications Act of 1992, Pub. L. No. 356,
102d Cong., 2d Sess., 106 Stat. 949 (1992), and Action for Children's
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995).
\3\ 47 C.F.R. 73.3999.
\4\ 47 U.S.C. 312(a)(6); 503(b)(1)(D).
---------------------------------------------------------------------------
The courts have held that, unlike obscene speech, indecent speech
is protected by the First Amendment. The courts have upheld FCC
regulation of broadcast indecency as a means to protect children. At
the same time, the courts have warned the FCC to proceed cautiously in
this area because of the important First Amendment rights at
stake.<SUP>5</SUP>
---------------------------------------------------------------------------
\5\ See, e.g., FCC v. Pacifica, 438 U.S. 726, 761 n.4 (Powell, J.
concurring) (``since the Commission may be expected to proceed
cautiously, as it has in the past, I do not foresee any undue
`chilling' effect on broadcasters' exercise of their rights''); Action
for Children's Television, 842 F. 2d at 1340 n. 14 (internal citations
omitted) (``the potential chilling effect of the FCC's general
definition of indecency will be tempered by the Commission's restrained
enforcement policy'').
---------------------------------------------------------------------------
The Commission has defined indecency since the 1970s as follows:
``Language or material that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community standards for
the broadcast medium, sexual and excretory activities or organs.''
<SUP>6</SUP> The courts have affirmed this definition.<SUP>7</SUP>
---------------------------------------------------------------------------
\6\ Industry Guidance on the Commission's Case Law Interpreting 18
U.S.C. 1464 and Enforcement Policies Regarding Broadcast Indecency,
16 FCC Rcd 7999 (Indecency Policy Statement).
\7\ See e.g., Pacifica; Action for Children's Television.
---------------------------------------------------------------------------
In applying this definition, the Commission balances three key
factors in order to determine whether, in context, the programming at
issue is patently offensive: (1) the explicitness or graphic nature of
the description or depiction of sexual or excretory organs or
activities; (2) whether the material dwells on or repeats at length
descriptions of sexual or excretory organs or activities; and (3)
whether the material appears to pander or is used to titillate, or
whether the material appears to have been presented for shock
value.<SUP>8</SUP>
---------------------------------------------------------------------------
\8\ See Indecency Policy Statement.
---------------------------------------------------------------------------
FCC INDECENCY ENFORCEMENT
As previously noted, the Commission takes its indecency enforcement
responsibilities very seriously. We have taken strong enforcement
action in this area under Chairman Powell's leadership and have stepped
up our enforcement in significant ways. Here are some highlights:
First, including actions anticipated in the near future, since
Chairman Powell took office in mid-January 2001, the Commission will
have issued 18 proposed indecency forfeitures (so-called Notices of
Apparent Liability), for a total of about $1.4 million in proposed
fines. This dollar amount significantly exceeds the total amount of
about $850,000 in indecency forfeitures proposed during the prior seven
years under the two prior Commissions.
Second, starting last year, the Commission has increased the amount
of its proposed indecency forfeitures. Instead of routinely proposing
forfeitures at the $7,000 ``base'' amount provided in the Commission's
Forfeiture Policy Statement,<SUP>9</SUP> the Commission has begun
proposing in appropriate cases forfeitures for the statutory maximum of
$27,500 per incident. Applying this stepped-up approach to enforcement,
the Commission proposed an indecency forfeiture last year of over
$350,000 for multiple violations.<SUP>10</SUP> Another proposed
forfeiture against one licensee of over $700,000 for multiple
violations is anticipated in the near future. This will be the highest
single proposed forfeiture against a broadcaster for indecency or any
other violation in the history of the Commission.
---------------------------------------------------------------------------
\9\ The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12
FCC Rcd 17087, recon. denied, 15 FCC Rcd 303 (1997); 47 C.F.R.
1.180(b)(4) Note.
\10\ Infinity Broadcasting Operations, Inc., FCC 03-234 (rel. Oct.
2, 2003).
---------------------------------------------------------------------------
Third, last year, the Commission provided explicit notice to
broadcasters that it may begin license revocation proceedings for
serious indecency violations.<SUP>11</SUP> The Commission now reviews
indecency cases with the possibility of revocation being a serious
consideration.
---------------------------------------------------------------------------
\11\ Infinity Broadcasting Operations, Inc., 18 FCC Rcd 6915
(2003).
---------------------------------------------------------------------------
Fourth, last year, the Commission also provided explicit notice to
broadcasters that it may treat multiple indecent utterances within a
single program as constituting multiple indecency violations, rather
than following its traditional per program approach.<SUP>12</SUP>
Again, the Commission now reviews indecency cases with this new
approach in mind.
---------------------------------------------------------------------------
\12\ Id.
---------------------------------------------------------------------------
Fifth, also beginning last year, the Commission broadened its
indecency investigations to cover not just the station that is the
subject of a complaint but also co-owned stations that broadcast the
same potentially indecent material. The Commission also began
collecting more extensive information from broadcasters in the course
of our indecency investigations.
Sixth, the Chairman recently proposed that the Commission reverse
the Enforcement Bureau's October 2003 ruling that the broadcast of a
live statement by a Golden Globe award recipient that ``this is really,
really Fxxx-ing brilliant'' was not indecent because it was used in a
non-sexual context and was fleeting and isolated.<SUP>13</SUP> The
Bureau made this decision based on precedent stating that the broadcast
of a single expletive, including the ``F-Word,'' was not
indecent.<SUP>14</SUP> The Chairman has now proposed that the
Commission conclude that the precedents underlying the Bureau decision
are no longer good law. If the Commission agrees to this approach, and
does depart from these prior precedents and reverse the Bureau decision
that we based on those precedents, it would represent a significant
strengthening of indecency enforcement. I can assure you that the
Enforcement Bureau will be fully committed to enforcing the law in the
manner set forth by the Commission in its decision.
---------------------------------------------------------------------------
\13\ Complaints Against Various Broadcast Licensees Regarding their
Airing of the ``Golden Globe Awards'' Program, DA 03-3045 (EB rel. Oct.
3, 2003).
\14\ See, e.g., Pacifica Foundation, 2 FCC Rcd 2698, 2699 (1987)
(subsequent history omitted) (``If a complaint focuses solely on the
use of expletives, we believe that . . . deliberate and repetitive use
in a patently offensive manner is a requisite to a finding of
indecency.''); Lincoln Dellar, Renewal of License for Stations KPRL(AM)
and KDDB(FM), 8 FCC Rcd 2582, 2585 (MMB 1993) (live, fleeting use of
the ``F-Word'' not indecent); L.M. Communications of South Carolina,
Inc., 7 FCC Rcd 1595 (MMB 1992) (live, fleeting use of a variant of the
``F-Word'' not indecent).
---------------------------------------------------------------------------
Seventh, the Commission has been successful in collecting indecency
forfeitures.
CONCLUSION
We believe Congress can also assist us in our efforts to enforce
the indecency restrictions in a strong and effective manner. In this
regard, Chairman Powell has supported increasing by a factor of 10 the
maximum statutory forfeiture amounts specified in the Communications
Act for indecency and we hope Congress will enact such legislation. We
appreciate the leadership Chairman Upton has provided on this issue.
In sum, I want to assure the Subcommittee that the Commission is
fully committed to vigorous enforcement of the broadcast indecency
restrictions in order to protect the interests of America's children.
We stand ready to work with you to attain this important public
interest objective.
I would be happy to answer any questions you may have. Thank you.
Mr. Upton. Thank you very much.
Mr. Bozell.
STATEMENT OF L. BRENT BOZELL, III
Mr. Bozell. Chairman Upton and members of the committee, I
appreciate the opportunity to appear before you to testify on
this issue.
I represent the Parents Television Council with 850,000
members. In the past 2 years, the FCC has literally--has
received literally hundreds of thousands of complaints from our
members and others over some 70 separate indecencies on
television, yet the FCC hasn't seen to agree with a single
complaint. In fact, in the entire history of the FCC, until
yesterday afternoon, I might note, this agency had never, never
fined a single television station in the continental United
States for broadcast indecency. They found one in Puerto Rico.
Yet indecencies are now everywhere on broadcast TV. Sex on
TV has become increasingly explicit, with children exposed to
more direct references to genitalia, prostitution, pornography,
kinky practices, oral sex, masturbation, and depictions of
nudity during prime time viewing hours than they had just a few
short years ago.
Foul language during the so-called family hour has
increased 95 percent since 1998. The ``F-word'' alone--the ``F-
word'' was used four times alone last year on broadcast
television. The broadcast networks are laughing at the public
and at everyone in this room because they know they can do or
say whatever they want, because the FCC will not lift a finger
to penalize them.
Consider the following, which aired on an NBC special this
past May at 8 p.m., in the so-called family hour. In this
scene, Dana Carvey appears as one of the old Saturday Night
Live characters, Church Lady, a very funny character, to talk
to former child star Macaulay Culkin about his sleepovers with
Michael Jackson. Here is the transcript:
Church Lady: Did he ever dangle anything in front of you at
the sleepovers?
Culkin: Dangle what?
Church Lady: Oh, I don't know. Say, his ``happy man loaf?''
When he moon-walked, he didn't moon you as he walked, did he?
How about your friends you took to his sleepovers? Did he ever
get into Billy's jeans?
The second guest says: Come on. You trying to tell me
you're screwing your little jingle bells up against the King of
Pop and shalonz never rose up to salute you? Come on, man. Side
by side on a Sealy Posturepedic, you never played ``hide the
toast?'' give me a break.
And it goes on from there, during the family hour in front
of millions of children.
What child needed to be exposed to this? Is it now a
laughing matter that we laugh about pedophilia? Would you want
to explain to your youngsters what ``hide the toast'' means?
My libertarian instinct makes me uncomfortable coming
before Congress asking for your help, but I do so now on behalf
of tens of millions of parents simply because it is time that
the Congress insert itself to halt its assault on the American
family. The Congress, pure and simple, needs to insist that the
FCC start doing its job correctly.
It begins with the need for the FCC to start monitoring
what is on broadcast television. The FCC has a whopping $278
million plus annual subsidy from the Congress, yet somehow
cannot find the time or the resources to monitor what it is
supposed to be regulating. Nor, apparently, can the FCC afford
to have a single person working full time on this issue. Not a
one. That fact comes to us directly from the FCC.
Second, the FCC needs to stop playing games with the
public. Thousands upon thousands of people filing complaints
hear nothing back. I refer you to our report which you will get
this week, Dereliction of Duty, which documents how the FCC has
sat on thousands of complaints going back almost 2 years.
Here is an example, and it was mentioned by one of our
Members of Congress earlier on. In December 2002, the singer
Cher on Fox television, on another awards program, said, people
have been telling me I am on the way out every year, right? So
F 'em.
That is not what she said.
Now that was December 2002, and the FCC still has not
figured out whether that was indecent.
More games.
The Chairman of the FCC assured me personally that it was
absolutely false that it was requiring the public to attach a
transcript of the actual show in question, something that is
virtually impossible for a complainant to have handy at the
moment. Yet if you look at the FCC Web site, that is what you
will find.
More games.
The FCC reported that in the second quarter of 2003 it
received only 351 complaints from broadcast indecency. That is
not true. It is preposterous. In the same period our members
alone filed over 8,000 complaints. We found out afterwards that
all the complaints were being lumped into one.
More games.
The FCC must be told to stop blocking, yes blocking,
complaints. Recently, we learned many of our supporters had
their E-mail complaints returned as undeliverable. Then we were
being told by somebody in the FCC they were being blocked.
Third, the FCC should start attaching meaningful fines to
those that are violating the public trust. The $27,000 maximum
fine is a joke, and I thank every Member of Congress who has
said this.
Chairman Upton and also Congressman Markey, it is good that
you are proposing that the fines be increased tenfold and that
the fines be increased up to $3 million for continued offenses.
Still the fact remains that all is for naught so long as the
FCC refuses to levy fines.
Finally, the FCC must get serious about revoking station
licenses for those who refuse to abide by standards of decency.
The use of the public airwaves is not an entitlement. It is a
privilege and a privilege to be honored. Rather than giving
networks more stations as a reward for their irresponsible
behavior, perhaps the Congress should begin steps to reduce the
number of stations.
If the Congress takes the appropriate steps to force the
FCC to do its job, the public will be protected, and this
assault on decency will come to an end. Only Congress can do
that, too; and if you do an entire generation of parents
grandparents and children will thank you for it.
Thank you, Mr. Chairman.
[The prepared statement of L. Brent Bozell, III, follows:]
Prepared Statement of L. Brent Bozell, III, President and Founder, The
Parents Television Council
Chairman Upton and Members of the Committee, I appreciate the
opportunity to appear before you to testify on this important issue.
I represent the Parents Television Council's 850,000 members, along
with untold millions of parents who, like me, are disgusted, revolted,
fed up, horrified--I don't know how to underscore this enough--by the
raw sewage, ultra violence, graphic sex, and raunchy language that is
flooding into our living rooms night and day.
A major responsibility of the FCC is to ensure that those who use
the public airwaves adhere to standards of decency. Yet, looking at the
FCC's track record on indecency enforcement, it becomes painfully
apparent that the FCC could care less about community standards of
decency or about protecting the innocence of young children.
In the past two years, the FCC has received literally hundreds of
thousands of complaints of broadcast indecency from fed-up, angry,
frustrated parents, yet the FCC hasn't seen fit to agree with a single
complaint. In fact, in the entire history of the FCC this agency has
never--never--fined a single television station in the continental
United States for broadcast indecency.
In the FCC's view, everything on broadcast TV is ``and always has
been'' decent. This is ludicrous.
The FCC is a toothless lion and its non-actions are not only
irresponsible, they're inexcusable. Either the FCC has no idea what
it's doing, or it just doesn't care what the public thinks. There's no
third explanation.
Indecencies and obscenities are now everywhere on broadcast TV.
This past year, the Parents Television Council released a series of
three Special Reports looking at the State of the Television Industry.
Sex on TV has become increasingly explicit, with children exposed to
more direct references to genitalia, prostitution, pornography, oral
sex, kinky practices, masturbation, and depictions of nudity during
prime time viewing hours--and yes, that includes the so-called ``Family
Hour''--than they would have been just a few short years ago. Foul
language during the family viewing hour alone increased by 95% between
1998 and 2002
Thanks to some envelope-pushing shows you can now hear words like
``asshole'' and ``bullshit'' on primetime broadcast TV. Live awards
shows are pushing the boundaries of acceptable language for broadcast
TV by ``accidentally'' allowing the ``f'' and ``s'' words to slip past
network censors. The ``f'' word has been used on broadcast television
four times in the last year alone.
The broadcast networks are laughing at the public because they know
they can do or say whatever they want to over the broadcast airwaves
and the FCC won't lift a finger to penalize them.
And it's not just the late night dramas that are pushing standards
downward.
Consider the following, which aired on an NBC special this past May
at 8:00--during the so-called Family Hour. In this scene, Dana Carvey
appears as one of his old Saturday Night Live characters, ``Church
Lady,'' to talk to former child star Macaulay Culkin about his
sleepovers with Michael Jackson.
Church Lady: ``Did he ever dangle anything in front of you at the
sleepovers?''
Culkin: ``Dangle what?''
Church Lady: ``Oh, I don't know. Say, his `happy man loaf'? . . .
When he moon-walked, he didn't moon you as he walked, did he? . . . How
about your friends you took to the sleepovers. Did he ever get into
Billy's jeans?''
Second guest, Michael Imperioli: ``I mean come on, you trying to
tell me you're screwing your little jingle bells up against the King of
Pop and his shalonz never rose up to salute you? Come on, man. Side by
side on the Sealy Posturepedic, you never played `hide the toast'? Give
me a break.''Church Lady: ``Alrighty, well, I think it's time to `Beat
It.' ''
What child needs to be exposed to this? Is pedophilia now a
laughing matter? Would you want to have to explain to your youngster
what ``hide the toast'' means? Nevertheless, this was broadcast over
the public airwaves--the public's airwaves--right into the family home,
``the one place,'' according to the Supreme Court, ``where people
ordinarily have the right not to be assaulted by uninvited and
offensive sights and sounds.''
My libertarian instinct makes me uncomfortable with the notion of
coming before Congress to ask for your help, but I do so now, on behalf
of tens of millions of parents, simply because it's time that Congress
inserted itself to halt this growing problem. The Congress, pure and
simple, needs to insist that the FCC do its job correctly.
What should the FCC be doing that it's not doing presently?
It begins with the need for the FCC to start monitoring what's on
broadcast television. The FCC has a whopping $278 million + annual
subsidy from the Congress, yet somehow can't find the time or the
resources to monitor what's on broadcast television. (Parenthetically,
let me point out that with a budget of approximately two percent of the
FCC's, the Parents Television Council manages to do it.)
It shouldn't be up to the public to point out the violations on the
airwaves. It should be up to the FCC to find them.
How disinterested is the FCC in its responsibility to monitor
indecency on television? Even with that $278 million annual subsidy.
The FCC apparently still can't afford to have a single person working
full time on this issue. Not a one. That fact comes to us from the FCC
directly.
Second, the FCC needs to start responding to complaints instead of
playing games with the public. I have been promised personally by
Chairman Powell that every complaint would get a response, and yet on a
regular basis, thousands upon thousands of people filing complaints
hear nothing. I refer you to our report, Dereliction of Duty, which
documents how the FCC has sat on thousands of complaints going back
almost two years.
While accepting an award during the December 2002 Billboard Music
Awards on Fox, pop-star Cher said, ``People have been telling me I'm on
the way out every year, right? So f*ck 'em.'' How long should it have
taken the FCC to decide if this was indecent? The answer is: quite a
while, apparently. It's been over a year and the FCC has yet to act on
it.
The FCC must also be told to stop playing games with the public
when it comes to filing complaints. The Chairman of the FCC assured me
personally that it was absolutely false that the FCC was requiring the
public to attach a transcript of the actual show in question, something
that is virtually impossible for a complainant to have handy at the
moment. And yet if you look at the FCC website, that's exactly what it
instructs the public to do.
The FCC must be told to stop playing games with numbers. The FCC
reported that claimed that in the second quarter of 2003 it received
only 351 complaints about broadcast indecency. That was preposterous,
simply untrue. In that same period, PTC members alone filed over 8,000
complaints. The FCC in turn lumped all of them in one basket and called
it one complaint.
The FCC must be told to stop blocking--yes, blocking--complaints,
too! Recently we were told by many of our supporters that their e-
mailed complaints were being returned as ``undeliverable.'' When we
looked into this we were told by a source within the FCC that they were
being blocked deliberately.
Third, the FCC must be told to start enforcing the law by attaching
meaningful fines to those who are violating the public trust with
deliberate indecencies on broadcast television. The $27,000 maximum
fine is a joke, and everyone knows it. It is most welcome news,
Chairman Upton, that you are proposing that fine be increased tenfold
and that the fines be increased up to $3 million for continued
offenses. But the fact remains that all is for naught so long as the
FCC refuses to levy fines when appropriate. The FCC must be told in no
uncertain terms that it has the obligation to do that to protect the
public airwaves. Moreover, Congress should insist that the FCC fine
stations for each violation. If a shock-jock uses the ``s'' word ten
times on his show, his station should receive ten fines, not one.
Finally, the FCC must get serious about revoking station licenses
for those who refuse to abide by standards of decency. The use of the
public airwaves is not an entitlement, a right. It is a privilege, and
a privilege to be honored. Rather than giving networks more stations as
a reward for their irresponsible behavior, perhaps the Congress ought
to consider steps to reduce the number of stations allowed for those
continuously spitting in the public's face.
I am a father of five who has spent twenty five years trying to
shield my children from offensive messages coming across the airwaves I
own. God willing, I'll be a grandfather some day. Wouldn't it be
wonderful if my grandchildren didn't have to endure such abuse? If the
Congress takes the appropriate steps to force the FCC to do its job,
the public trust will be protected and this assault on decency will
come to an end. Only Congress can do that, too.
And if you do, an entire generation of grandparents, parents, and
their children will thank you for it.
Mr. Upton. Thank you.
Mr. Corn-Revere.
STATEMENT OF ROBERT CORN-REVERE
Mr. Corn-Revere. Mr. Chairman, members of the committee,
thank you for inviting me to testify about FCC enforcement of
the broadcast indecency standard.
I will address some of the constitutional issues that arise
from the FCC broadcast content and will explore some of the
changes in the Commission's report.
Although I actively represent clients with respect to these
issues, my testimony today represents my personal views and
should not necessarily be attributed to my clients or other
parties.
This hearing and the FCC's recent indecency actions,
including those mentioned yesterday, appear to be a significant
change in the FCC approach toward content regulation. In
addition, various proposals to bolster the FCC's policies are
pending, such as H.R. 3717 to increase the level of indecency
fines by tenfold, are pending and H.R. 3687, which would amend
Section 1464 of the Criminal Code to create a list of eight
words and phrases that would have been indecent per se
evidently, regardless of the context in which they were used.
The purpose of my testimony today is not to assess any
particular action or proposed action in this area. I have not
been asked to do so. My principal point is this. Whatever
action the Congress or FCC must take, it must be accompanied by
a comprehensive and good-faith review of the FCC's policies.
Chairman Powell has said, as government pushes the limits
of its authority to regulate content of speech, the more its
action should be constitutionally scrutinized, not less. Now,
admittedly, he hasn't said this recently, but it remains true,
nonetheless.
My prepared testimony provides a fairly detailed
explanation for my conclusion, so I will summarize my views
with the following three points:
First, the Supreme Court five to four decision in FCC v.
Pacifica Foundation did not give the FCC carte blanche
authority to decide whatever it thinks broadcasters put on is
indecent or to impose unlimited penalties.
It is important to bear in mind the ability to regulate
indecent speech is a limited constitutional exception, not the
general rule. The Supreme Court has even validated efforts to
restrict indecency in print, on film, in the mails, in the
public forum, on public television, and on the Internet.
In Pacifica, the so-called seven dirty words case, the
court has described its action as an emphatically very narrow
holding and the justices stressed that they were reaching a
decision in light of the fact that no penalties were assessed
against Pacifica in that case. Four justices dissented in
Pacifica; and Justice Powell, who provided the crucial vote,
stressed this is not to say that the Commission has an
unrestricted license to decide what speech protected in other
media may be banned from the airwaves. He added that the
decision does not apply to cases involving the isolated use of
a potential offensive word in the course of a broadcast, such
as the Golden Globes's broadcast, and in Justice Powell's words
the FCC was to proceed cautiously.
The real question to be answered is whether Pacifica would
be reaffirmed today even if there is no change in the FCC
policy.
Second, the FCC indecency standard represents a
constitutional paradox. It purports to regulate speech that the
courts agree is constitutionally protected.
The indecency standard is the current manifestation of the
test for obscenity as existed in Victorian England in the 19th
Century. It was imported to this country as the test for
obscenity in the days of Anthony Comstock. But as the first
amendment doctrine evolved and let courts to fashion a more
precise test obscenity, the law of indecency failed to keep up.
Indecency law remains just as Justice Potter Stewart said
of the early attempts to define obscenity: I may not be able to
intelligently define it, he said, but I know it when I see it.
Unfortunately, given the imprecise contours, the FCC cannot
say the same thing, that it knows it when it sees it. It is
continually trying to revise its views and provide scant
guidance either for those who must comport with the law or for
those who must comply with it.
Third, there are no quick fixes here. It really is not that
easy. For one thing, under such a rule, certain passages in the
Bible would be banned from the air. Isaiah, Chapter 36, Verse
12, would be out, as would Samuel, Chapter 25, Verse 22. So
would certain newscasts.
In 1991, the FCC dismissed an indecency complaint against
National Public Radio for a newscast which included an excerpt
of a wiretap from the mob trial of mob boss, John Gotti. The
same word or variations thereof that appeared in the Golden
Globes telecast was repeated 10 times in the course of any 30-
second segment. Nevertheless, the Commission found that, given
the surrounding circumstances, the use of expletives during the
Gotti segment does not meet its determination of broadcast
indecency.
Under a per-se indecency rule the FCC would not be able to
show the same flexibility during the course of a newscast or a
political speech, for example. Similarly, in 1987, the Mass
Media Bureau reluctantly and kind of obliquely gave a green
light to an on-air reading of James Joyce' Ulysses, saying the
licensee could make an informed editorial choice based on the
fact that Federal courts had refused to uphold a ban of Ulysses
in 1933.
Under a per-se rule, the FCC would be returned to its pre-
1933 standard, so the only point that I am making is that such
easy and reflexive solutions are not necessarily the right
course to go, the right course to take and would face
significant opposition in case of a court challenge.
The point of my testimony really is just that whatever
action the Congress or the FCC takes, it needs to be
accompanied by rigorous first amendment review.
[The prepared statement of Robert Corn-Revere follows:]
Prepared Statement of Robert Corn-Revere, Partner, Davis Wright
Tremaine LLP
Mr. Chairman, and Members of the Committee. Thank you for inviting
me to testify about Federal Communications Commission (``FCC'')
enforcement of the broadcast indecency standard.<SUP>1</SUP> I will
address some of the constitutional issues that arise from the FCC's
regulation of broadcast content, and will explore the potential
implications of changes in the Commission's approach to indecency.
Based on my analysis, I suggest that any changes in the policy should
be accompanied by a comprehensive rulemaking proceeding that examines
fully the First Amendment implications of the FCC's rules. Such review
should take place regardless of whether changes are initiated at the
FCC or directed by Congress.
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\1\ This testimony represents my personal views and should not be
attributed to any clients or other parties.
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I. RECENT DEVELOPMENTS WITH ENFORCEMENT OF THE FCC'S INDECENCY POLICY
The FCC and the enforcement of its indecency rules has received a
great deal of attention lately. Much of it--though by no means all--
centers on a recent staff decision declining to impose a penalty on
broadcast of one particular expletive <SUP>2</SUP> during a live
broadcast of the Golden Globe Awards last January.<SUP>3</SUP> That
decision currently is under review by the full Commission, and Chairman
Powell has stated publicly that he intends for the agency to overrule
the Bureau order.<SUP>4</SUP> According to press reports, the Chairman
proposed a rule ``that would nearly guarantee an FCC fine if [the
profanity is] uttered between 6 a.m. and 10 p.m. on radio and broadcast
television.'' One possible exception to a per se indecency rule would
be when a profane word is uttered ``in a political situation.''
<SUP>5</SUP> Other Commissioners have expressed similar
views,<SUP>6</SUP> as have various members of Congress.<SUP>7</SUP>
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\2\ During the unscripted broadcast, Bono of the band U-2 accepted
an award with the comment, ``This is really, really f**king
brilliant.'' At the request of Committee staff for purposes of decorum,
specific references to expletives in my testimony will be altered with
the use of asterisks (as above), including when such words appear in
congressional proposals and Supreme Court opinions.
\3\ In the Matter of Complaints Against Various Broadcast Licensees
Regarding Their Airing of the ``Golden Globe Awards'' Program, DA 03-
3045 (Enforcement Bureau, released Oct. 3, 2003) (``Golden Globes
Order''). The staff ruling denied 234 complaints the Commission
received about the Golden Globes broadcast, of which 93 percent (217
complaints) came from persons associated with the Parent's Television
Council. By contrast, about 27 million viewers tune in to the annual
Golden Globes broadcast. See Lisa de Moraes, The Golden Globes, More
Glittery Than Ever, Washington Post, January 27, 2004 at C7.
\4\ It is unusual to see a Chairman and other Commissioners
publicly lobby to change a staff ruling, since any agency orders issued
on delegated authority may be reversed by the Commissioners as a
routine matter. Moreover, full Commission review already has been
sought in this case.
\5\ See Frank Ahrens, Powell Seeks Reversal of Profanity Ruling,
Washington Post, January 14, 2004 at E1.
\6\ See, e.g., Remarks of Commissioner Kevin J. Martin, 21st Annual
Institute on Telecom-munications Policy & Regulation, December 5, 2003;
Letter from Commissioner Michael J. Copps to L. Brent Bozell, III,
October 27, 2003 (``The Commission has arguably come to put more
emphasis in recent years on the contextual presentation of indecency. I
am concerned that we may be too narrow in our interpretation of the
statute.'').
\7\ See Letter from Rep. Chip Pickering to Chairman Michael Powell,
November 21, 2003; Letter from Rep. Joseph Pitts to Chairman Michael
Powell, November 21, 2003 (with 30 additional signatories).
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Much of the adverse reaction to the staff Golden Globes Order
centers on its observation that the word `` `f**king' may be crude and
offensive, but, in the context presented here,'' may not be actionably
indecent when used ``as an adjective or expletive to emphasize an
exclamation.'' <SUP>8</SUP> In a less discussed part of the Order,
however, the Bureau also found that ``fleeting and isolated remarks of
this nature do not warrant Commission action,'' <SUP>9</SUP> a
proposition for which there is ample precedent.<SUP>10</SUP> In fact,
the initial FCC orders that preceeded Supreme Court review in FCC v.
Pacifica Foundation, 438 U.S. 726 (1978) stressed that it would be
inequitable to hold a licensee responsible for indecent language when
``public events likely to produce offensive speech are covered live,
and there is no opportunity for journalistic editing.'' <SUP>11</SUP>
Justice Powell, who supplied the crucial swing vote for Pacifica's slim
majority, stressed that ``[t]he Commission's holding, and certainly the
Court's holding today, does not speak to cases involving the isolated
use of a potentially offensive word.'' <SUP>12</SUP> But whether or not
the Golden Globes Order is defensible on other grounds, it may be
fairly safe to assume given the present climate that the days of the
Bureau decision are numbered.
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\8\ Golden Globes Order, 5. In point of fact, the word
``f**king'' in the context of the complaint was used as an adverb. But
it is doubtful the grammatical difference would mollify those most
upset with the ruling. See, e.g., H.R. 3687, 108th Cong., 1st Sess.
(introduced Dec. 8, 2003) (proposing to specify words that are indecent
per se, including all ``grammatical forms of such words and phrases
(including verb, adjective, gerund, participle, and infinitive
forms)'').
\9\ Id. 6.
\10\ See Industry Guidance on the Commission's Case Law
Interpreting 18 U.S.C. 1464 and Enforcement Policies Regarding
Broadcast Indecency, 16 FCC Rcd. 7999, 8008-09 (2001) (``Industry
Guidance''); Lincoln Dellar, Renewal of License for Stations KPRL(AM)
and KDDB(FM), 8 FCC Rcd. 2582, 2585 (Mass Media Bureau 1993); L.M.
Communications of South Carolina, Inc. (WYBB(FM)), 7 FCC Rcd. 1595
(Mass Media Bureau 1992) (fleeting and isolated utterance in a live and
spontaneous program is not actionable); Pacifica Foundation, 95
F.C.C.2d 750, 760 (1983) (``speech that is indecent must involve more
than an isolated use of an offensive word'').
\11\ In the Matter of a Petition for Clarification or
Reconsideration of a Citizen's Complaint Against Pacifica Foundation,
Station WBAI(FM), New York, N.Y., 59 F.C.C.2d 892, 893 n.1 (1976).
\12\ Pacifica, 438 U.S. at 760-761 (Powell, J., concurring). See
also id. at 772 (Brennan J., dissenting) (``I believe that the FCC is
estopped from using either this decision or its own orders in this case
. . . as a basis for imposing sanctions on any public radio broadcast
other than one aired during the daytime or early evening and containing
the relentless repetition, for longer than a brief interval, of
[offensive language].'').
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The official responses spawned by the current controversy would
seem to ensure this outcome. Both the House of Representatives and the
Senate introduced resolutions condemning the Golden Globes Order, and
have urged the FCC generally to take a more activist role in indecency
enforcement.<SUP>13</SUP> In addition, Congressman Ose introduced H.R.
3687 to address directly the Bureau's reasoning regarding the
contextual use of expletives. It proposes to amend 18 U.S.C. 1464 to
specify that the term `` `profane', used with respect to language,
includes the words `sh*t', `pi*s', `f**k', `cu*t', `a**hole', and the
phrases `c**k sucker', `mother f**ker', and `a** hole', compound use
(including hyphenated compounds) of such words and phrases with each
other or with other words and phrases, and other grammatical forms of
such words and phrases (including verb, adjective, gerund, participle,
and infinitive forms).'' <SUP>14</SUP>
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\13\ H. Res. 482, 108th Cong., 1st Sess. (Dec. 8, 2003) (expressing
sense of the House the Golden Globes Order is erroneous and directing
the FCC to ``utilize its enforcement authority to its proper extent'');
S. Res. 283, 108th Cong., 1st Sess. (Dec. 9, 2003) (expressing sense of
the Senate with respect to a number of FCC decisions, and suggesting
that the Commission should reconsider the Golden Globes Order plus
undertake ``new and serious efforts to sanction broadcast licensees
that refuse to adhere to the [indecency] standard''). The Senate
resolution was approved by unanimous consent. Cong. Rec., December 9,
2003 at S16213.
\14\ H.R. 3687, 108th Cong., 1st Sess. (introduced Dec. 8, 2003).
---------------------------------------------------------------------------
Chairman Upton also has urged the Commission to reverse the Golden
Globes Order and on January 21 introduced H.R. 3717 to increase
substantially the financial penalties the Commission may impose for
violations of its indecency rules.<SUP>15</SUP> Chairman Powell has
endorsed the imposition of vastly higher fines, and has called for a
ten-fold increase in forfeiture levels in order to create more of a
deterrent effect on broadcast programmers.<SUP>16</SUP> These actions
have come after the Commission announced its intention to impose a
number of significant fines under existing rules, and the agency has
threatened to revoke the licenses of broadcasters who commit ``serious
violations'' of the indecency policy. <SUP>17</SUP>
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\15\ H.R. 3717, 108th Cong., 2d Sess. (January 21, 2004). The bill
would amend Section 503(b)(2) of the Communications Act to authorize
fines of up to $275,000 for each violation of the FCC's indecency rules
up to a limit of $3 million ``for any single act or failure to act'' in
the case of a continuing violation. The language of the bill suggests
that such penalites could be imposed even if the violation is not
``willful'' or ``repeated.''
\16\ See Ahrens, supra note 5.
\17\ Infinity Broadcasting Operations, Inc., FCC 03-302 3
(released Dec. 8, 2003) (Forfeiture order imposing fine of $27,500 on
WKRK-FM and indicating that future violations may be treated as
multiple, repeated offenses subject to significantly higher
forfeitures; other licensees were placed on notice that enforcement
actions may include ``initiation of license revocation proceedings'')
(``WKRK Order''); Infinity Broadcasting Operations, Inc., FCC 03-234
(released October 2, 2003) (Notice of Apparent Liability in amount of
$357,500 for broadcast of Opie & Anthony Show over 13 stations); AMFM
Radio Licenses, LLC, FCC 03-233 (released October 2, 2003) (Notice of
Apparent Liability in amount of $55,000 for broadcasts of ``Elliott in
the Morning'' program).
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II. ANY CHANGE IN THE FCC'S INDECENCY POLICY REQUIRES A COMPREHENSIVE
CONSTITUTIONAL REVIEW OF THE RULES
Whatever course the FCC and Congress may take in this area, neither
body can avoid the need for thorough constitutional scrutiny of its
actions. It is insufficient simply to note that the Supreme Court
upheld the FCC in an indecency action a quarter century ago in FCC v.
Pacifica Foundation, 438 U.S. 726 (1978) given the intervening changes
in the law, technology, and in society. Thus far, however, the FCC has
resisted any such review.<SUP>18</SUP> But as Chairman (then
Commissioner) Powell has said, ``as government pushes the limits of its
authority to regulate the content of speech, the more its actions
should be constitutionally scrutinized, not less.'' He previously has
stressed that ``any responsible government official who has taken an
oath to support and defend the Constitution must squarely addess this
important question.'' <SUP>19</SUP> In this regard, the United States
Court of Appeals for the District of Columbia Circuit has reminded the
FCC Commissioners that ``[f]ederal officials are not only bound by the
Constitution, they must also take a specific oath to support and defend
it.'' <SUP>20</SUP> Accordingly, Chairman Powell has said that he tries
to answer a series of questions before taking regulatory actions in
order to ``execute this haughty responsibility without feeling [the]
decisions are the result of nothing more than . . . personal
preferences or the skillful lobbying efforts of the most effective
special interest groups or politicians.'' The final, and most important
question he asks is, ``Would any action we take violate the
Constitution?'' <SUP>21</SUP>
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\18\ See, e.g., WKRK Order 6 n.1 (dismissing detailed legal
analysis of FCC policies in a footnote: ``Nothing in the Comments
alters our decision here or leads us to conclude that the Commission
should initiate a broader proceeding to reconsider our indecency
policies in light of the First Amendment issues raised by the
Comments.'').
\19\ Remarks by Commissioner Michael K. Powell, Willful Denial and
First Amendment Jurisprudence, Media Institute (Washington, D.C., April
22, 1998) (``Willful Denial Speech'').
\20\ Meredith Corp. v. FCC, 809 F.2d 863, 874 (D.C. Cir. 1987)
(citing U.S. Const. art. VI, cl. 3). In this regard, it is elementary
that enforcing ``a Commission-generated policy that the Commission
itself believes is unconstitutional may well constitute a violation of
that oath.'' But, in any event, ``the Commission must discharge its
constitutional obligations by explicitly considering [a] claim that the
FCC's enforcement of [its policies] against [a licensee] deprives it of
its constitutional rights. The Commission's failure to do so seems to
us the very paradigm of arbitrary and capricious administrative
action.'' Id.
\21\ Remarks by Commissioner Michael K. Powell, The Public Interest
Standard: A New Regulator's Search for Enlightenment, American Bar
Association 17th Annual Legal Forum on Communications Law (Las Vegas,
Nevada., April 5, 1998) (``Search for Enlightenment Speech'').
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With respect to regulating broadcast content, Chairman Powell has
criticized as a ``willful denial of reality'' the Commission's failure
to reexamine the ``demonstrably faulty premises for broadcast
regulation,'' including the claim ``that broadcasting is uniquely
intrusive as a basis for restricting speech.'' Of this rationale he has
said, ``[t]he TV set attached to rabbit ears is no more an intruder
into the home than cable, DBS, or newspapers for that matter. Most
Americans are willing to bring TVs into their living rooms with no
illusion as to what they will get when they turn them on.''
<SUP>22</SUP> The Chairman has explained that ``[t]echnology has
evaporated any meaningful distinctions among distribution [media],
making it unsustainable for the courts to segregate broadcasting from
other [media] for First Amendment purposes. It is just fantastic to
maintain that the First Amendment changes as you click through the
channels on your television set.'' <SUP>23</SUP>
---------------------------------------------------------------------------
\22\ Willful Denial Speech, supra.
\23\ Search for Enlightenment Speech, supra.
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Yet the FCC's reluctance to address these basic issues led
Commissioner Powell to observe that ``the government has been engaged
for too long in willful denial in order to subvert the Constitution so
that it can impose its speech preferences on the public--exactly the
sort of infringement of individual freedom the Constitution was
masterfully designed to prevent.'' <SUP>24</SUP> As Chairman, Powell
has said that he is hesitant to second-guess the choices made by
members of the broadcast audience and has noted that ``I don't want the
government as my nanny.'' And while acknowledging that some programming
content makes him anxious, he has stated ``I don't get paid to write
general anxiety rules. I get paid to write specific ones that have
sufficient clarity to sustain judicial review as not being arbitrary
and capricious and not just an expression of my preference.''
<SUP>25</SUP>
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\24\ Willful Denial Speech, supra. See also Remarks by Commissioner
Michael K. Powell, The Freedom Forum (Arlington, VA, April 27, 1998)
(``We must admit to these new realities and quit subverting the
Constitution in order for the government to be free to impose its
speech preferences on the public.'').
\25\ The Chairman Elucidates, Broadcasting & Cable, February 12,
2001 at 34-35.
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This is not intended to suggest that the Chairman would reaffirm
these prior statements in a formal proceeding, nor is it an attempt to
predict how a Commission majority might act. Rather, the point is that
the government has a constitutional obligation to address these
significant First Amendment issues to the extent it modifies or
reaffirms its indecency enforcement policy. The same constitutional
duty applies regardless whether Congress or the FCC takes the lead in
this area.<SUP>26</SUP> As I explain in the following sections, the
Commission's existing approach to indecency enforcement is fraught with
constitutional difficulties, and any effort to increase enforcement
efforts, raise the level of fines, or to specify a per se indecency
rule will make these problems even more pressing. I have not been asked
to analyze any particular proposal or to express an opinion about its
constitutionality. Accordingly, my testimony simply identifies the
principal First Amendment questions that will need to be addressed. My
primary conclusion is, one way or the other, the FCC can no longer put
off constitutional review of its indecency policies.
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\26\ See, e.g., United States v. Playboy Entertainment Group, Inc.,
529 U.S. 803, 816 (2000) (``When the Government restricts speech, the
Government bears the burden of proving the constitutionality of its
actions.''); Sable Communications of California, Inc. v. FCC, 492 U.S.
115, 129 (1989) (``Court does not defer to congressional findings
because ``our task in the end is to decide whether Congress has
violated the Constitution.'').
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III. FCC V. PACIFICA FOUNDATION DOES NOT PROVIDE UNLIMITED AUTHORITY TO
DEFINE AND PUNISH BROADCAST INDECENCY
Senate Resolution 283, adopted last month by unanimous consent,
urges the FCC to ``vigorously and expeditiously enforc[e] its own
United States Supreme Court-approved standard for indecency in
broadcast media, as established in the declaratory order In the Matter
of a Citizen's Complaint Against Pacifica Foundation Station WBAI(FM),
56 F.C.C.2d 94 (1975).'' But in this regard, it is important not to
read too much into the Pacifica precedent. The Supreme Court's 5-4
decision in that case did not give the FCC carte blanche authority to
decide what broadcasts are indecent or to impose unlimited penalties.
It is important to keep in mind that the ability to regulate so-
called ``indecent'' speech is a limited constitutional exception, not
the general rule. The Supreme Court has invalidated efforts to restrict
indecency in print,<SUP>27</SUP> on film, <SUP>28</SUP> in the
mails,<SUP>29</SUP> in the public forum,<SUP>30</SUP> on cable
television <SUP>31</SUP> and on the Internet.<SUP>32</SUP> The Pacifica
Court applied a somewhat different standard for broadcasting, but that
decision cannot be read too broadly. Pacifica was a fragmented (5-4)
decision that did not approve a particular standard or uphold a
substantive penalty against the licensee.<SUP>33</SUP> The Supreme
Court subsequently has acknowledged that the FCC's definition of
indecency was not endorsed by a majority of the Justices, and it
repeatedly has described Pacifica as an ``emphatically narrow
holding.'' <SUP>34</SUP> Later decisions by lower courts did not
analyze or reaffirm Pacifica so much as simply recite and apply its
outcome.<SUP>35</SUP>
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\27\ Butler v. Michigan, 352 U.S. 380, 383 (1957). See also Hamling
v. United States, 418 U.S. 87, 113-114 (1974) (statutory prohibition on
``indecent'' or ``obscene'' speech may be constitutionally enforced
only against obscenity).
\28\ United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130
n.7 (1973).
\29\ Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).
\30\ Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).
\31\ United States v. Playboy Entertainment Group, Inc., 529 U.S.
803 (2000).
\32\ Reno v. ACLU, 521 U.S. 844 (1997).
\33\ See Pacifica, 438 U.S. at 743 (plurality op.) and at 75556
(Powell, J., concurring) (``[t]he Court today reviews only the
Commission's holding that Carlin's monologue was indecent `as
broadcast' at two o'clock in the afternoon, and not the broad sweep of
the Commission's opinion''). See also Carlin Communications, Inc. v.
FCC, 837 F.2d 546, 559 (2d Cir. 1988) (``[t]he Pacifica Court declined
to endorse the Commission definition of what was indecent''); ACLU v.
Reno, No. Civ. A. 96-963, 1996 WL 65464 at *3 (E.D.Pa. Feb. 15, 1996)
(Buckwalter, J.) (``it simply is not clear, contrary to what the
government suggests, that the word `indecent' has ever been defined by
the Supreme Court'').
\34\ Reno, 521 U.S. at 866-867, 870; Sable, 492 U.S. at 127;
Bolger, 463 U.S. at 74.
\35\ E.g., Action for Children's Television v. FCC, 852 F.2d 1332,
1339 (D.C. Cir. 1988) (``ACT I'') (``if acceptance of the FCC's generic
definition of `indecent' as capable of surviving a vagueness challenge
is not implicit in Pacifica, we have misunderstood Higher Authority and
welcome correction''). See also Action for Children's Television v.
FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991) (``ACT II''); Information
Providers' Coalition for Defense of the First Amendment v. FCC, 928
F.2d 866, 875 (``We note that the Sable opinion did not describe the
Commission's definition of indecency in ipsissimis verbis. No question
was presented there, and none here, of the contents of the Commission's
definition discussed in Pacifica.'') (9th Cir. 1991); Alliance for
Community Media, 56 F.3d 105, 129 (D.C. Cir. 1995), rev'd in part and
aff'd in part sub nom. Denver Area Educ. Telecomms. Consortium v. FCC,
518 U.S. 717, 756 (1996); United States v. Evergreen Media Corp. of
Chicago, 832 F. Supp. 1183, 1186 (N.D. Ill. 1993) (the ACT I court
``went so far as to openly invite correction by the Supreme Court'').
---------------------------------------------------------------------------
Accordingly, it is not prudent simply to assume that policies
approved in the past remain valid now or in the future. The Supreme
Court has long held that ``because the broadcast industry is dynamic in
terms of technological change[,] solutions adequate a decade ago are
not necessarily so now, and those acceptable today may well be outmoded
ten years hence.'' <SUP>36</SUP> The Commission recently reaffirmed
this principle in its omnibus broadcast ownership proceeding, noting
that current regulations failed to account for vast changes in the
media landscape.<SUP>37</SUP>
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\36\ CBS v. Democratic National Committee, 412 U.S. 94, 102 (1973).
See National Broadcasting Co. v. United States, 319 U.S. 190, 225
(1943) (``If time and changing circumstances reveal that the `public
interest' is not served by application of the regulations, it must be
assumed that the Commission will act in accordance with its statutory
obligations.'').
\37\ 2002 Biennial Regulatory Review--Review of the Commission's
Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section
202 of the Telecommunications Act of 1996, 18 FCC Rcd. 13,620, 13,623
(2003) (``Biennial Regulatory Review''). See also Carriage of Digital
Television Broadcast Signals, 16 FCC Rcd 2598, 12 (2001) (concluding
that proposed new applications of must carry rules would violate the
First Amendment despite Supreme Court approval of analog must carry
rules in 1997).
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Much has happened in the 25 years since Pacifica was decided and
the 10 years since the D.C. Circuit last addressed the issue of the
broadcast indecency standard. To begin with, it is far less plausible
for the FCC to justify indecency regulations on the premise that ``the
broadcast media have established a uniquely pervasive presence in the
lives of all Americans.'' <SUP>38</SUP> As the Commission most recently
concluded, ``the modern media marketplace is far different than just a
decade ago.'' It found that traditional media ``have greatly evolved,''
and ``new modes of media have transformed the landscape, providing more
choice, greater flexibility, and more control than at any other time in
history.'' <SUP>39</SUP> Of particular relevance here, the Commission
noted that ``[t]oday's high school seniors are the first generation of
Americans to have grown up with this extraordinary level of abundance
in today's media marketplace.'' It found that most teens have access to
cable television and high speed Internet access, many live in
households that receive 100 to 200 channels of video programming and
thus ``have come to expect immediate and continuous access to news,
information, and entertainment.'' <SUP>40</SUP> In this environment,
imposing special speech restrictions on the broadcast medium compared
to other media seems futile.<SUP>41</SUP>
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\38\ Pacifica, 438 U.S. at 748.
\39\ Biennial Regulatory Review 86-87.
\40\ Id. 88. Current research shows that teens and young adults
spend considerably more time online than they do watching TV or
listening to the radio (16.7 hours per week online versus 13.6 hours
watching TV or 12 hours listening to the radio). Communications Daily,
July 25, 2003, p. 7 (reporting results of study by Harris Interactive
and Teenage Research Unlimited).
\41\ See Bolger, 463 U.S. at 72-73, striking down a restriction on
unsolicited mailings of advertisements for contraceptives because the
government could not demonstrate that the policy actually serves the
stated interest. The Court noted that the policy could at best lend
only ``incremental support'' because parents ``must already cope with
the multitude of external stimuli that color their children's
perceptions of sensitive subjects.'' See also Rubin v. Coors Brewing
Co., 514 U.S. 476, 488-89 (1995) (``exemptions and inconsistencies''
render a speech restriction irrational and undermine the government's
ability to show that it serves its intended purpose).
---------------------------------------------------------------------------
It also must be noted that society has changed as well, and has
grown far more tolerant of the wide range of content that is available.
In 1951 a Houston television station caused a public outcry when it
planned to air a bedding commercial showing a husband and wife in a
double bed, and that same decade the Everly Brothers' song Wake Up,
Little Susie was banned in Boston.<SUP>42</SUP> We do not live in the
same culture as when Rob and Laura Petrie on the Dick Van Dyke Show had
to sleep in separate beds,<SUP>43</SUP> yet the FCC's indecency rules
are based on a history of indecency enforcement dating back to
1927.<SUP>44</SUP> Changes in technology, in society, and in audience
expectations all have contributed to vastly different broadcast
standards and practices.<SUP>45</SUP> This is not to suggest that such
developments necessarily are ``good'' or ``bad.'' They merely reflect
changes in the ``contemporary community standards for the broadcast
medium.''
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\42\ See Lili Levy, The Hard Case of Broadcast Indecency, NYU Rev.
L. & Soc. Change 49, 50 (1992-93).
\43\ See Louis Chunovic, One Foot on the Floor: The Curious
Evolution of Sex on Television From I Love Lucy to South Park 19 (2000)
(``At first, any mention at all of sex on TV was strictly taboo--so
much so that the ubiquitous censors mandated that even married couples
portrayed on the new medium must sleep in separate beds, and the very
word `pregnant' was banned from the airwaves.''); Tom Shales,
``Twilight Zone'': A Dim Shadow of its Former Self,'' Washington Post,
November 15, 2002, p. C1 (``There would have been no way of dealing
with [the morality of `virtual sex'] in the original [Twilight Zone]
because on television of that era, nobody talked about having sex
before, during or after marriage--or at any other time, either.'').
\44\ See Pacifica, 438 U.S. at 737-738.
\45\ See generally Alfred R. Schneider, The Gatekeeper: My 30 Years
as a TV Censor 4, 140 (Syracuse University Press 2001).
---------------------------------------------------------------------------
The law also has evolved since the Supreme Court considered the
FCC's broadcast indecency rules. The Court has since confirmed that
``indecent'' speech is fully protected by the First Amendment and is
not subject to diminished scrutiny as ``low value'' speech, as three
Justices who joined the Pacifica plurality opinion had
suggested.<SUP>46</SUP> Rather, it stressed that ``[t]he history of the
law of free expression is one of vindication in cases involving speech
that many citizens find shabby, offensive, or even ugly,'' and that the
government cannot assume that it has greater latitude to regulate
because of its belief that ``the speech is not very important.''
<SUP>47</SUP> Additionally, since Pacifica the Court has invalidated
government-imposed indecency restrictions on cable television channels
despite its finding that ``[c]able television broadcasting, including
access channel broadcasting, is as `accessible to children' as over-
the-air broadcasting, if not more so.'' <SUP>48</SUP> More importantly,
in Reno v. ACLU, the Court for the first time subjected the indecency
definition (in the Internet context) to rigorous scrutiny and found it
to be seriously deficient.<SUP>49</SUP> These decisions raise serious
questions about the continuing validity of Pacifica.
---------------------------------------------------------------------------
\46\ Only Justices Stevens, Rehnquist, and Chief Justice Burger
joined that part of the opinion asserting that indecent speech lies
``at the periphery of First Amendment concern.'' Pacifica, 438 U.S. at
743.
\47\ Playboy Entertainment Group, 529 U.S. at 826.
\48\ Denver Area Educ. Telecomms. Consortium, 518 U.S. at 744. The
Court upheld a provision that permitted cable operators to adopt
editorial policies for leased access channels, but rejected government-
imposed restrictions on indecent programs on leased and public access
channels.
\49\ 521 U.S. at 871-881.
---------------------------------------------------------------------------
Throughout this period, the FCC has shown a marked inability to
clarify and apply its own standard. After a decade in which the FCC
applied its policy only to the seven specific words in the George
Carlin monologue (the so-called ``seven dirty words''), it switched to
enforcing a ``generic'' indecency policy.<SUP>50</SUP> In 1994, the
Commission settled an enforcement action (in part to avoid having to
respond to a First Amendment defense in court) and committed to
providing ``industry guidance'' as to the meaning of the indecency
standard within six months of the settlement agreement.<SUP>51</SUP> It
took another six and one-half years for the Commission to fulfill this
condition by issuing a policy statement in 2001 purporting to offer
interpretive guidance on the indecency standard.<SUP>52</SUP> Yet
despite this belated attempt at clarification, the Commission itself
has been unable to interpret its own standard, as explained in greater
detail below.
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\50\ New Indecency Enforcement Standards to be Applied to all
Broadcast and Amateur Radio Licensees, 2 FCC Rcd. 2726 (1987) (``New
Indecency Enforcement Standards'').
\51\ Evergreen Media, Inc. v. FCC, Civil No. 92 C 5600 (N.D. Ill.
Feb. 22, 1994).
\52\ See Industry Guidance, 16 FCC Rcd. 7999.
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IV. THE INDECENCY STANDARD PRESENTS A CONSTITUTIONAL PARADOX
From the outset, the indecency standard has presented a genuine
paradox. The courts confirm that indecent speech is fully protected by
the First Amendment, yet the FCC's amorphous standard provides no
protection as a practical matter. On the other hand, obscenity is
``unprotected'' by the First Amendment, yet constitutional doctrine has
evolved that provides far greater legal protection than does the
indecency standard. A brief review of these two doctrines and how they
developed places the current deficiencies of the indecency regime into
bold relief.
A. Experience With a Vague Test for Obscenity Foreshadowed the
Constitutional Problems of the Indecency Standard
Before the courts extended First Amendment principles to the law of
obscenity, the legal test that applied was very similar to the standard
now used by the FCC to define indecency. The first American cases were
based on a 19th Century English decision, Regina v. Hicklin, which held
that obscenity was material that tended to corrupt the morals of a
young or immature person.<SUP>53</SUP> Under the Hicklin standard,
literature was judged obscene based upon a review only of brief
excerpts of a publication and not the work as a whole.<SUP>54</SUP>
Consequently, the intended audience of a book was unimportant if a
young and inexperienced person might be exposed to the supposedly
corrupting influence. Additionally, it was immaterial whether the book
possessed literary merit. Indeed, some found that literary merit
compounded the crime, by ``enhancing a book's capacity to deprave and
corrupt.'' <SUP>55</SUP>
---------------------------------------------------------------------------
\53\ Regina v. Hicklin, 3 L.R.-Q.B. 360 (1868). The test focused
not on the ``average person in the community,'' but on ``those whose
minds are open to such immoral influences, and into whose hands a
publication of this sort may fall.''
\54\ Frederick F. Schauer, The Law of Obscenity 23 (1976).
\55\ Edward de Grazia, Girls Lean Back Everywhere 12 (1992).
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Not surprisingly, under this test for obscenity, ``[t]he first half
of the 20th century [was] marked by heated litigation over books which
are now generally regarded as classics.'' <SUP>56</SUP> Using the
Hicklin rule, American courts held obscene such works as Theodore
Dreiser's An American Tragedy,<SUP>57</SUP> D.H. Lawrence's Lady
Chatterley's Lover,<SUP>58</SUP> Erskine Caldwell's God's Little
Acre,<SUP>59</SUP> Radclyffe Hall's The Well of
Loneliness,<SUP>60</SUP> Arthur Schnitzler's Casanova's
Homecoming,<SUP>61</SUP> Henry Miller's Tropic of Cancer and Tropic of
Capricorn,<SUP>62</SUP> and James Joyce's Ulysses.<SUP>63</SUP>
---------------------------------------------------------------------------
\56\ Schauer, supra, at 23-24.
\57\ Commonwealth v. Friede, 171 N.E. 472 (Mass. 1930).
\58\ People v. Dial Press, 48 N.Y.S.2d 480 (Magis. Ct. 1944).
\59\ Attorney Gen. v. Book Named ``God's Little Acre'', 93 N.E.2d
819 (Mass. 1950).
\60\ People v. Friede, 233 N.Y.S. 565 (Magis. Ct. 1929).
\61\ People v. Seltzer, 203 N.Y.S. 809 (Sup. Ct. 1924).
\62\ United States v. Two Obscene Books, 99 F. Supp. 760 (N.D. Cal.
1951), aff'd sub nom. Besig v. United States, 208 F.2d 142 (9th Cir.
1953).
\63\ Not only was a small literary magazine convicted of obscenity
for publishing Ulysses in installments, but the U.S. Post Office seized
and burned all of the issues of the magazine. No American publisher
considered printing Ulysses for the next eleven years. See de Grazia,
supra, at 9-13, 16-17.
---------------------------------------------------------------------------
In many cases, the mere threat of prosecution was enough to stop
publication. By this method, publishers were ``persuaded'' to withdraw
from circulation and destroy all outstanding copies of Women in Love,
by D.H. Lawrence, The Genius, by Theodore Dreiser, and Memoirs of
Hecate County, by Edmund Wilson.<SUP>64</SUP> Other literary greats
that were attacked included Nathaniel Hawthorne, Walt Whitman, Ernest
Hemmingway, Sinclair Lewis, Leo Tolstoy, Honore de Balzac, and George
Bernard Shaw.<SUP>65</SUP>
---------------------------------------------------------------------------
\64\ Id. at 72-73, 710.
\65\ Margaret A. Blanchard, The American Urge to Censor: Freedom of
Expression Versus the Desire to Sanitize Society--From Anthony Comstock
to 2 Live Crew, 33 Wm. & Mary L. Rev. 741, 746, 758, 771 (1992).
---------------------------------------------------------------------------
A significant break with Hicklin came in United States v. One Book
Entitled Ulysses, where the United States Court of Appeals for the
Second Circuit declined to find the book Ulysses obscene when ``taken
as a whole'' and after assessing its effect on the average member of
the community.<SUP>66</SUP> Some other courts began to follow
suit.<SUP>67</SUP> Despite this emerging trend, however, many
publishers continued to shy away from books they considered risky. For
example, Lady Chatterley's Lover, written in 1928, was not published in
its unexpurgated form in America until 1959.<SUP>68</SUP> Tropic of
Cancer, written in 1934, was unpublished in the United States for 26
years.<SUP>69</SUP>
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\66\ United States v. One Book Entitled Ulysses, 72 F.2d 705, 707-
708 (2d Cir. 1934).
\67\ E.g., United States v. Levine, 83 F.2d 156 (2d Cir. 1936);
ACLU v. City of Chicago, 121 N.E.2d 585 (Ill. 1954), appeal dismissed,
348 U.S. 979 (1955); People v. Viking Press, Inc., 264 N.Y.S. 534
(Magis. Ct. 1933).
\68\ de Grazia, supra, at 94; see Grove Press, Inc. v.
Christenberry, 276 F.2d 433 (2d Cir. 1960).
\69\ de Grazia, supra, at 55, 370.
---------------------------------------------------------------------------
Finally, in 1957, the Supreme Court expressly abandoned the Hicklin
rule and held that the First Amendment requires that works must be
judged as a whole in their entire context, considering their effect on
the average member of the community--not the most vulnerable. Moreover,
a work could not be considered obscene if it possessed serious
value.<SUP>70</SUP> That same year, the Court struck down a Michigan
law that prohibited books containing ``immoral, lewd [and] lascivious
language . . . tending to the corruption of the morals of youth''
because it ``reduce[d] the adult population . . . to reading only what
is fit for children.'' <SUP>71</SUP>
---------------------------------------------------------------------------
\70\ Roth v. United States, 354 U.S. 476, 489-490 (1957).
\71\ Butler, 352 U.S. at 383.
---------------------------------------------------------------------------
Eventually, the Court settled on the current three part test for
obscenity: (1) whether the average person, applying contemporary
community standards would find that the work, taken as a whole, appeals
to the prurient interest, (2) whether the work depicts or describes, in
a patently offensive way, sexual conduct specifically defined by the
applicable state law, and (3) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.''
<SUP>72</SUP> Debate about the test for obscenity has continued, but
the problems associated with the discredited Hicklin rule are now a
thing of the past.
---------------------------------------------------------------------------
\72\ Miller v. California, 413 U.S. 15, 24 (1973).
---------------------------------------------------------------------------
B. The Indecency Standard Provides Less Constitutional Protection Than
Does the Test for Obscenity
The unfortunate history of obscenity law and the change that
occurred after courts imposed the discipline of the First Amendment on
this area of the law should have been instructive in the development of
an indecency standard since such speech is supposed to be
constitutionally protected. However, the test for indecency prohibits
the transmission (at a time of day when children are likely to be in
the audience) of ``language or material that, in context, depicts or
describes, in terms patently offensive as measured by contemporary
community standards for the broadcast medium, sexual or excretory
activities or organs.'' <SUP>73</SUP> Just as under Hicklin, the
indecency standard applies to selected passages, not to works as a
whole; it is based not on the average person in a community, but upon
children; and literary or artistic merit does not bar liability. In
short, the three-part test that courts developed over time to ensure
the application of First Amendment restraints on obscenity laws is
precisely what the indecency standard lacks.
---------------------------------------------------------------------------
\73\ Industry Guidance, 16 FCC Rcd. at 8000.
---------------------------------------------------------------------------
The FCC historically has defended its indecency definition on the
basis that it is ``similar to language'' employed in part of the Miller
obscenity test.<SUP>74</SUP> In Reno, however, the government
unsuccessfully offered precisely the same argument--that the
Communications Decency Act's (``CDA's'') ``patently offensive'' and
``indecency'' standards are one part of the three-prong Miller test and
therefore are constitutional--but the Supreme Court rejected that
defense. It stressed that ``[j]ust because a definition including three
limitations is not vague, it does not follow that one of those
limitations, standing by itself, is not vague.'' <SUP>75</SUP> The
Court explained that the other Miller limitations (requiring that the
work be ``taken as a whole,'' appeal to the ``prurient'' interest, and
that it must lack serious literary, artistic, political or scientific
value) ``critically limit[] the uncertain sweep of the obscenity
definition.'' <SUP>76</SUP>
---------------------------------------------------------------------------
\74\ See Playboy Entertainment Group, Inc. v. United States, 945 F.
Supp. 772, 791 (D. Del. 1996).
\75\ Reno, 521 U.S. at 872-873 (emphasis added).
\76\ Id. The Reno Court found that the indecency standard is
inadequate even with respect to the one part of the Miller test that it
sought to incorporate. Id. at 846. The type of programming covered by
the indecency standard is not ``specifically defined by the applicable
. . . law'' since Section 1464 (like the CDA) includes no ``textual
embellishment.'' Id. at 871 & n.35.
---------------------------------------------------------------------------
1. The Indecency Standard Does Not Require Review of the Work as a
Whole
Unlike the Miller obscenity test, the indecency standard enforced
by the FCC has never required an examination of the work ``as a
whole,'' or that the material appeal to the prurient
interest.<SUP>77</SUP> Quite to the contrary, the Commission has
expressly rejected claims that it ``is required [to] take into account
the work as a whole.''<SUP>78</SUP> Accordingly, the FCC has found a
violation of the law where less than five percent of a program was
devoted to sexually-oriented material. The Commission concluded that it
could impose a fine ``[w]hether or not the context of the entire
[program] dwelt on sexual themes.'' <SUP>79</SUP> Similarly, if the FCC
reverses the staff Golden Globes Order, it will have decided that a
single word uttered in the course of a three-hour live telecast is
sufficient to render the program indecent.
---------------------------------------------------------------------------
\77\ Illinois Citizens Comm. for Broad. v. FCC, 515 F.2d 397, 406
(D.C. Cir. 1974).
\78\ Implementation of Section 10 of the Cable Consumer Protection
and Competition Act of 1992, 8 FCC Rcd. 998, 1004 (1993), aff'd,
Alliance for Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995),
rev'd in part and aff'd in part sub nom. Denver Area Educ. Telecomms.
Consortium, 518 U.S. 717.
\79\ WIOD (AM), 6 FCC Rcd. 3704, 3705 (1989).
---------------------------------------------------------------------------
The focus of indecency enforcement on selected passages and not the
work as a whole is a significant constitutional defect. Because of
this, the Supreme Court found that the indecency standard when applied
to the Internet ``unquestionably silences some speakers whose messages
would be entitled to constitutional protection.'' <SUP>80</SUP> The
Court held that the requirement that the isolated passages be
considered ``in context'' did not cure the problem. More recently, in
rejecting the application of the ``harmful to minors'' standard to
online communications, the United States Court of Appeals for the Third
Circuit explained that ``[t]he taken `as a whole' language is
crucial.'' <SUP>81</SUP> As the Supreme Court has emphasized, it is
``an essential First Amendment rule [that t]he artistic merit of a work
does not depend on the presence of a single explicit scene.''
<SUP>82</SUP> Accordingly, any standard that permits a decisionmaker to
penalize ``indecent'' or ``harmful to minors'' material in isolation
necessarily ``results in significant overinclusiveness.'' <SUP>83</SUP>
---------------------------------------------------------------------------
\80\ Reno, 521 U.S. at 874.
\81\ ACLU v. Ashcroft, 322 F.3d 240, 252 (3d Cir. 2003).
\82\ Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, 1401
(2002).
\83\ ACLU v. Ashcroft, 322 F.3d at 267.
---------------------------------------------------------------------------
2. The Indecency Standard Does Not Evaluate the Effect of Material on
the Average Person
The Miller test requires that the patent offensiveness of a work be
measured by its impact on the average member of the community, and not
its effect on the most ``vulnerable,'' but the indecency standard is
precisely the opposite. Like the discredited Hicklin rule, the focus of
indecency regulation is the effect of sexually-oriented material on
children.<SUP>84</SUP> This focus on minors was one of the principal
problems of obscenity law before the First Amendment was brought to
bear on this area of the law, yet the indecency standard replicates the
error.
---------------------------------------------------------------------------
\84\ Pacifica, 438 U.S. at 749-750; see Reno, 521 U.S. at 871 n.37.
---------------------------------------------------------------------------
Even if the indecency standard employed all three prongs of the
Miller test, its requirement that the Commission assess patent
offensiveness as to children makes the standard far less precise. As
the Third Circuit pointed out in ACLU v. Ashcroft, the term minor
``applies in a literal sense to an infant, a five-year-old, or a person
just shy of the age of seventeen'' and that speakers ``must guess at
the potential audience of minors and their ages'' in order to comply
with the law.<SUP>85</SUP> Such a requirement ``is not narrowly drawn
to achieve the statute's purpose . . . and does not lend itself to a
commonsense meaning.'' <SUP>86</SUP> The court concluded that ``[a]s a
result of this vagueness'' those affected by the law will be deterred
from engaging in a wide rage of constitutionally protected speech'' and
that ``[t]he chilling effect caused by this vagueness offends the
Constitution.'' <SUP>87</SUP>
---------------------------------------------------------------------------
\85\ ACLU v. Ashcroft, 322 F.3d at 254.
\86\ Id. at 255.
\87\ Id. at 269 n.37.
---------------------------------------------------------------------------
The Third Circuit in Ashcroft was ruling on the ``harmful to
minors'' standard, which is even more analytically rigorous than
indecency because it applies all three parts of the Miller test (as
modified for minors). The court's conclusions apply with even greater
force to the indecency standard, given its lack of definitional
embellishment. Moreover, the ``harmful to minors'' standard requires
the government to demonstrate that material is ``virtually obscene''
and even then cannot impose restrictions that limit access by
adults.<SUP>88</SUP> The indecency standard, by sharp contrast, does
not come close to providing this level of protection, thus magnifying
the constitutional problems of the FCC's rules.
---------------------------------------------------------------------------
\88\ American Booksellers Ass'n, 484 U.S. at 394; accord American
Booksellers v. Webb, 919 F.2d 1493, 1504-05 (11th Cir. 1990).
---------------------------------------------------------------------------
3. The Indecency Standard May Restrict Material That Has Serious
Literary, Artistic, Political or Scientific Value
Contrary to the Miller standard, the FCC has stated that the merit
of a work is not a complete defense to an indecency complaint, but is
only ``one of many variables that make up a work's `context.'
''<SUP>89</SUP> In this regard, Judge Patricia Wald has noted that ``
`[i]ndecency' is not confined merely to material that borders on
obscenity--`obscenity lite.' '' <SUP>90</SUP> Rather, the standard
casts a larger net encompassing other, less offensive protected speech
regardless of its merit. Thus, in many instances, ``the programming's
very merit will be inseparable from its seminal `offensiveness.' ''
<SUP>91</SUP> The FCC has even acknowledged that, because serious merit
does not save material from an indecency finding, there is a ``broad
range of sexually-oriented material that has been or could be
considered indecent'' that does ``not [include] obscene speech.''
<SUP>92</SUP> Thus, the Commission has expressly declined to hold that
``if a work has merit it is per se not indecent,'' and that material
may be found indecent for broadcast even where the information is
presented ``in the news'' and is presented ``in a serious, newsworthy
manner.'' <SUP>93</SUP> In this regard, it is sobering to realize that
in Gillett Communications v. Becker, a federal district court held that
the videotape Abortion in America: The Real Story, transmitted as part
of a political advertisement by a bona fide candidate for public
office, was indecent.<SUP>94</SUP>
---------------------------------------------------------------------------
\89\ Infinity Broadcasting Corp., 3 FCC Rcd. 930, 932 (1987), aff'd
in part and rev'd in part on other grounds sub nom. ACT I, 852 F.2d
1332.
\90\ Alliance for Community Media v. FCC, 56 F.3d at 130 (Wald, J.,
dissenting).
\91\ Id.
\92\ Enforcement of Prohibitions Against Broadcast Indecency in 18
U.S.C. 1464, 5 FCC Rcd. 5297, 5300 (1990), rev'd on other grounds sub
nom. ACT II, 932 F.2d 1504.
\93\ Letter to Merrill Hansen, 6 FCC Rcd. 3689, 3689 (1990)
(citation omitted). See also KLOL (FM), 8 FCC Rcd. 3228 (1993); WVIC-
FM, 6 FCC Rcd. 7484 (1991).
\94\ Gillett Communications v. Becker, 807 F. Supp. 757 (N.D. Ga.
1992), appeal dismissed mem., 5 F.3d 1500 (11th Cir. 1993).
---------------------------------------------------------------------------
In striking down the CDA's indecency standard as applied to the
Internet, the Reno Court found the absence of a ``societal value''
requirement ``particularly important.'' <SUP>95</SUP> It noted that
requiring the inclusion of a work's merit ``allows appellate courts to
impose some limitations and regularity on the definition by setting, as
a matter of law, a national floor for socially redeeming value.''
<SUP>96</SUP> No such requirement is contained in the indecency
standard.<SUP>97</SUP> As a result, the Court concluded that
application of the indecency standard threatened to restrict
``discussions of prison rape or safe sexual practices, artistic images
that include nude subjects, and arguably the card catalogue of the
Carnegie Library.'' <SUP>98</SUP> The district court in Reno similarly
had expressed concern that the indecency standard restricts ``a broad
range of material'' including ``contemporary films'' such as ``Leaving
Las Vegas.'' <SUP>99</SUP>
---------------------------------------------------------------------------
\95\ 521 U.S. at 873.
\96\ Id.
\97\ E.g., Pacifica Found. Inc., 2 FCC Rcd. 2698 (1987) (case
involving serious drama regarding homosexual relations in the post-AIDS
era). Significantly, in that case, the FCC disregarded the artistic
merit of the play, saying that its indecency finding was not affected
by the fact that the material presented ``was excerpted from a dramatic
performance that dealt with homosexual relations and Acquired Immune
Deficiency Syndrome (AIDS)'' or that the excerpts came from a
``critically acclaimed and long-running [play] in Los Angeles area
theatres.'' Infinity Broadcasting Corp. of Pennsylvania, 3 FCC Rcd. at
932; cf. ACLU v. Reno, 929 F. Supp. 824, 852-853 (E.D. Pa. 1996)
(Sloviter, J.) (discussing the chilling effect of indecency standard to
serious dramas such as the gay-themed play ``Angels in America'').
\98\ 521 U.S. at 878.
\99\ ACLU v. Reno, 929 F. Supp. 824, 855 (E.D. Pa. 1996) (Sloviter,
J.).
---------------------------------------------------------------------------
The FCC has been baffled by such questions, as evidenced by its
investigation for indecency of the BBC-produced, Peabody Award-winning
mini-series, The Singing Detective. The critically-acclaimed program
was aired by various public television stations between 1988 and 1990,
and a year-long FCC investigation ensued after the program appeared on
a KQED-TV in San Francisco in 1990. The Commission's review did not
consider the full seven hours of the program, but instead focused on
several short scenes that included brief glimpses of nudity and one
scene in which a child witnessed a sexual encounter. The FCC never
formally resolved the complaint, and simply let the matter fade away
after putting the TV station through the trouble and significant
expense of defending its actions for an extended period.<SUP>100</SUP>
But the Commission's actions ensured that The Singing Detective would
not be broadcast again in the United States. The episode demonstrates
that, just as under the Hicklin rule, a lax standard can censor
meritorious speech, and that a successful prosecution is not needed in
order to suppress the work.<SUP>101</SUP>
---------------------------------------------------------------------------
\100\ See Robert Corn-Revere, New Age Comstockery, 4 CommLaw
Conspectus 173, 181-182 (1996); Marjorie Heins, Not in Front of the
Children 119 (Hill & Wang: New York 2001).
\101\ Compare Pacifica, 438 U.S. at 741 n.16 (even if Lady
Chatterley's Lover, when taken as a whole, is not obscene, ``the
utterance of such words or the depiction of such sexual activity on
radio or TV would raise . . . public interest and section 1464
questions'') (quoting En Banc Programming Inquiry, 44 F.C.C. 2303, 2307
(1960)) with Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684,
688-689 (1959) (invalidating, on First Amendment grounds, licensing
restriction directed at film Lady Chatterley's Lover because it
``portrays a relationship which is contrary to the moral standards, the
religious precepts, and the legal code of [the] citizenry'').
---------------------------------------------------------------------------
4. The Indecency Standard Lacks Strong Procedural Safeguards
As a general matter, the First Amendment requires the government to
use ``sensitive tools'' to ``separate legitimate from illegitimate
speech.'' <SUP>102</SUP> Strict procedural requirements govern any
administrative procedure that has the effect of denying or delaying the
dissemination of speech to the public.<SUP>103</SUP> In particular, the
First Amendment commands that any delay be minimal, and that the
speaker have access to prompt judicial review.<SUP>104</SUP> Where
ongoing government regulation of speech is involved, the government's
obligation to provide due process is heightened.<SUP>105</SUP> In every
case where the government seeks to limit speech, the constitutional
presumption runs against the government, which must justify the
restriction.<SUP>106</SUP>
---------------------------------------------------------------------------
\102\ Speiser v. Randall, 357, U.S. 513, 525 (1958).
\103\ Freedman v. Maryland, 380 U.S. 51, 58-61 (1965).
\104\ United States v. Thirty-Seven Photographs, 402 U.S. 363
(1971).
\105\ City of Lakewood, 486 U.S. at 757; Houston v. Hill, 482 U.S.
451 (1987).
\106\ Playboy Entertainment Group, 529 U.S. at 816 (``When the
Government restricts speech, the Government bears the burden of proving
the constitutionality of its actions.''); Interactive Digital Software
Ass'n v. St. Louis County, 329 F.3d 954, 959 (8th Cir. 2003).
---------------------------------------------------------------------------
The FCC's regime of enforcing the indecency rules is inconsistent
with these basic principles. For example, the Commission has begun to
issue letters of inquiry that indicate ``a complaint has been filed''
and demand detailed responses from licensees but do not indicate the
identity of the complainants.<SUP>107</SUP> Indeed, the Commission does
not require its anonymous complainants to submit a tape or transcript
of allegedly offending broadcasts, and has indicated that when a
complaint is received it is the licensee's obligation to prove that the
transmission in question was not indecent. As the Chief of the FCC's
Enforcement Bureau said at a conference of the National Association of
Broadcasters' state leadership, ``[i]f the station can't refute
information in the complaint, we'll assume the complainant got it
right.'' <SUP>108</SUP> But such an approach ``raises serious
constitutional difficulties'' when the government seeks ``to impose on
[a speaker] the burden of proving his speech is not unlawful.''
<SUP>109</SUP>
---------------------------------------------------------------------------
\107\ The Commission's decision to act on anonymous complaints is
puzzling since current rules provide that informal complaints should be
routinely available to the public. See 47 C.F.R. 0.453(a)(2)(ii)(F),
0.453(a)(2)(ii)(H).
\108\ See Bill McConnell, New Rules for Risque Business,
Broadcasting & Cable, March 4, 2002.
\109\ Free Speech Coalition, 122 S. Ct. at 1404; ACLU v. Ashcroft,
322 F.3d at 260.
---------------------------------------------------------------------------
This problem is exacerbated by the erosion of the Commission's
requirement that complainants provide a tape or transcript of the
offending broadcast. As recently as 2001 the FCC stressed that it
needed ``as full a record as possible to evaluate allegations of
indecent programming'' because of ``the sensitive nature of these cases
and the critical role of context.'' <SUP>110</SUP> It explained that it
could take action only in response to ``documented complaints,'' and
that the Commission's historic practice was to require ``a full or
partial tape or transcript or significant excerpts of the program.''
<SUP>111</SUP> More recently, however, the FCC has moved away from this
requirement, and some Commissioners have suggested that it be dispensed
with entirely. In one case, the Enforcement Bureau acknowledged the
lack of ``a tape, transcript or significant excerpt'' but nevertheless
concluded that ``the excerpts referenced in complainant's letters . . .
were `significant enough' '' for it to consider ``the context of the
material.'' <SUP>112</SUP> This practice begs the question of how the
Commission can evaluate context in the absence of a tape or significant
excerpt, and it raises the more constitutionally troubling issue of
shifting the burden of proof. To ``cure'' this problem, the Commission
has begun to require broadcasters to supply tapes in response to
letters of inquiry (that were triggered by complaints). Some of the
complaints are years old and are unsubstantiated, but the Commission
has asked licensees to provide information in order to supply the
necessary context.<SUP>113</SUP> Some FCC Commissioners have even
suggested requiring licensees to submit tapes of their broadcasts in
response to any indecency complaint. But whether or not tapes are
required as a matter of routine or merely to bolster otherwise
deficient complaints, the Commission has ventured into dangerous
territory. The D.C. Circuit has held that requiring licensees to tape
programs to facilitate official oversight ``presents the risk of direct
governmental interference in program content'' and is constitutionally
infirm.<SUP>114</SUP>
---------------------------------------------------------------------------
\110\ Industry Guidance, 16 FCC Rcd. at 8015.
\111\ Id. at 8015. In addition to a tape or transcript, the
Commission requires complaints to specify the date and time of the
broadcast and the call sign of the station.
\112\ In the Matter of Emmis Radio License Corp., 17 FCC Rcd.
18,343, 18,344 (Enforcement Bureau 2002) (``[a]bsent any contrary
evidence from [the licensee], we determined that the record was
adequate enough for us to determine that the station willfully and
repeatedly aired indecent material''). See also Letter from Charles W.
Kelley, Chief, Investigations and Hearings Division, Enforcement Bureau
to Mindy Pierce, EB-01-IH-0331/GDJ (Feb. 12, 2002) (``even an inexact
transcript may be sufficient to meet procedural requirements'').
\113\ In some cases the Commission staff has asked for tapes that
include a ``buffer zone'' of up to an hour on each side of the program
that was the subject of the complaint. Such a request bears no
relationship to the context of a particular program and amounts to
nothing more than a fishing expedition.
\114\ Community-Service Broadcasting of Mid-America v. FCC, 593
F.2d 1102, 1110, 1116 (D.C. Cir. 1978) (en banc) (invalidating a
program taping requirement imposed on public broadcasters where the
purpose of the requirement was to increase government review of
controversial programming content).
---------------------------------------------------------------------------
Finally, once the Commission, in its sole discretion, decides that
a particular broadcast is indecent, the process to review that decision
is anything but prompt. For the licensee, challenging an indecency
determination generally requires refusing to pay a proposed forfeiture
and enduring an enforcement proceeding before it may raise a defense in
court, assuming the government initiates a collection
action.<SUP>115</SUP> During this time, the Commission may withhold its
approval of other matters the licensee has pending before the agency.
For this reason, no licensee has been able to hold out long enough to
test the validity of an FCC indecency determination.<SUP>116</SUP> From
the perspective of the artist whose work may be effectively banned from
the air by an FCC decision (including a decision made on delegated
authority by a lower level official), the government's position is that
there is no right to seek judicial review at all.<SUP>117</SUP>
---------------------------------------------------------------------------
\115\ See Industry Guidance, 16 FCC Rcd. at 8016.
\116\ ACT IV, 59 F.3d at 1254.
\117\ Sarah Jones v. FCC, 30 Media L. Rep. 2534 (S.D.N.Y. Sept. 4,
2002), vacated as moot, Docket No. 02-6248 (S.D.N.Y. March 12,
2003)(not reported in F. Supp. 2d).
---------------------------------------------------------------------------
C. Judicial Scrutiny of the Indecency Standard in Other Contexts
Underscores its Constitutional Problems
Recent decisions of the Supreme Court and of lower courts confirm
that the indecency standard cannot survive rigorous constitutional
review. Although these decisions did not examine the indecency regime
in the context of broadcasting, their analysis undermines the key
premises of the same standard the FCC historically has used to enforce
its broadcast rules. These decisions are particularly instructive,
since no majority of the Supreme Court ever endorsed the broad
application of the Pacifica standard, and lower courts pointedly
refrained from analyzing the logic of the test. Yet when the Supreme
Court finally deconstructed the language of the indecency rule, it held
that it was unconstitutional for all of the reasons identified above.
Reno v. ACLU represents the first time the Supreme Court subjected
the indecency test to rigorous First Amendment review and in doing so
it found the standard to be seriously deficient. Writing for a near-
unanimous Court, Justice Stevens concluded that the indecency
restrictions of the Communications Decency Act (``CDA'') were invalid
because of vagueness and overbreadth.<SUP>118</SUP> This finding is
especially meaningful since Justice Stevens also wrote the Pacifica
decision, and he began his analysis by reaffirming the constitutional
baseline: that the governmental interest in protecting children from
harmful materials ``does not justify an unnecessarily broad suppression
of speech addressed to adults.'' <SUP>119</SUP> Reaffirming the Court's
earlier rulings in Butler, and Bolger, the Court emphasized that the
government may not reduce the adult population to only what is fit for
children.<SUP>120</SUP>
---------------------------------------------------------------------------
\118\ 521 U.S. at 875.
\119\ Id. at 870-874, 881-882. Justice O'Connor, joined by Chief
Justice Rehnquist, wrote an opinion concurring in part and dissenting
in part on other grounds, but the Court was unanimous in holding that
the CDA provisions requiring the screening of ``indecent'' displays
from minors ``cannot pass muster.'' Id. at 886.
\120\ Id. at 875 & n.40.
---------------------------------------------------------------------------
Since then, virtually every court that has ruled on similar laws
has held that they are unconstitutional.<SUP>121</SUP> These cases
related primarily to state attempts to regulate ``harmful to minors''
material. But as the Third Circuit found most recently in reviewing the
Child Online Protection Act, successor to the CDA, the focus on minors
(among other things) rendered the law ambiguous. ``The chilling effect
caused by this vagueness,'' the court concluded, ``offends the
Constitution.'' <SUP>122</SUP> These cases struck down or enjoined laws
that restricted online communications, not broadcasting, but the logic
of the decisions is not affected by the medium of transmission. A vague
standard does not become more precise--or more consistent with
constitutional requirements--because the law is applied to one
technology and not another. The question, then, is whether First
Amendment protections for broadcasting are so attenuated to permit the
government to apply a standard that the courts have now found to be
patently defective.<SUP>123</SUP> The primary rationale for such
different treatment, cited both by the Supreme Court and now touted by
the Commission, is that more intensive content regulation has been
permitted for broadcasting historically.<SUP>124</SUP> The Court in
Pacifica described the ``pervasive presence'' of broadcasting and
relied on the fact that broadcast licensees have been barred by federal
law from transmitting ``obscene, indecent or profane language'' ever
since the Radio Act of 1927.<SUP>125</SUP> The Commission continues to
point to ``special justifications'' for the different treatment,
including ``the history of extensive government regulation of the
broadcast medium,'' spectrum scarcity, and the ``invasive nature'' of
broadcasting. <SUP>126</SUP>
---------------------------------------------------------------------------
\121\ ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); Cyberspace
Communications, Inc. v. Engler, 238 F.3d 420 (6th Cir. 2000) (table);
ACLU v. Napolitano, Civ. 00-505 TUC ACM (D. Ariz. Feb. 21, 2002);
American Bookseller's Foundation for Free Expression v. Dean, 202 F.
Supp.2d 300 (D. Vt. 2002); Bookfriends, Inc. v. Taft, 223 F. Supp.2d
932 (S.D. Ohio 2002); PSINet v. Chapman, 167 F. Supp.2d 878 (W.D. Va.
2000), question certified, 317 F.3d 413 (4th Cir. 2003).
\122\ ACLU v. Ashcroft, 322 F.3d at 269 n.37.
\123\ See Pacifica, 438 U.S. at 759-760 (Powell, J., concurring)
(``This is not to say . . . that the Commission has an unrestricted
license to decide what speech, protected in other media, may be banned
from the airwaves in order to protect unwilling adults from momentary
exposure to it in their homes.'').
\124\ Reno, 521 U.S. at 867 (noting that the FCC ``had been
regulating radio stations for decades'').
\125\ Pacifica, 438 U.S. at 735-738.
\126\ See Industry Guidance, 16 FCC Rcd. at 8000 & n.9.
---------------------------------------------------------------------------
Given the changes in the media landscape most recently catalogued
by the FCC in various proceedings, the principal remaining ``special
justification'' is the history of content regulation by the FCC. But
this is a tenuous basis upon which to perpetuate a constitutionally
deficient standard. For the FCC to argue that it can regulate
broadcasting content more restrictively now because it did so in the
past does not distinguish broadcasting from other media. Indeed, as
noted earlier, the government restricted books under the Hicklin rule
in a way that is almost identical to the FCC's current regulation of
radio and television. Similarly, when the FCC was first chartered,
state and local governments subjected films to prior review and
censorship.<SUP>127</SUP> But the law changed, and the last such cinema
review board in the United States was finally dismantled a decade
ago.<SUP>128</SUP>
---------------------------------------------------------------------------
\127\ See, e.g., Times Film Corp. v. City of Chicago, 365 U.S. 43,
69-78 (1961) (Warren, C.J. dissenting) (providing detailed examples of
film censorship and noting the ``astonishing'' extent ``to which
censorship has recently been used in this country'').
\128\ Freedman 380 U.S. at 58-61; Elizabeth Kastor, It's a Wrap:
Dallas Kills Film Board, Washington Post, Aug. 13, 1993 p. D1.
---------------------------------------------------------------------------
Accordingly, it is difficult for the Commission to argue that it
may continue to rely on First Amendment law as it applied to
broadcasting in 1927 or 1934 because Congress authorized it to regulate
``indecent'' or ``profane'' broadcasts in those years. A brief look at
the Commission's actions during that period shows why this is so. In
late 1937, for example, hundreds of radio listeners complained about an
episode of NBC's ``Charlie McCarthy'' program in which the puppet
Charlie McCarthy and Mae West portrayed the title characters in a
sketch entitled ``Adam and Eve.'' The FCC investigated the matter and
found nothing in the script objectionable, but some of Mae West's
inflections during the broadcast were found to be ``suggestive.'' On
this basis the FCC admonished NBC and its affiliates that the program
was ``vulgar, immoral or of such other character as may be offensive to
the great mass of right-thinking, clean-minded American citizens.''
<SUP>129</SUP> In another early case, the Ninth Circuit upheld the
conviction of an individual for violating Section 29 of the Federal
Radio Act which prohibited the utterance of ``any obscene, indecent, or
profane language by means of radio communication.'' Although the court
agreed that the speaker did not make any statements that could be
considered obscene or indecent (even though it applied the Hicklin
rule), it nevertheless concluded that the broadcast was ``profane''
because the defendant ``referred to an individual as `damned,' '' that
he ``used the expression `By God' irreverently,'' and ``announced his
intention to call down the curse of God upon certain individuals.''
<SUP>130</SUP>
---------------------------------------------------------------------------
\129\ See FCC Issues Rebuke for Mae West Skit, Broadcasting, Jan.
15, 1938, p. 13.
\130\ Duncan v. United States, 48 F.2d 128, 134 (9th Cir.), cert.
denied, 283 U.S. 863 (1931). The FCC has relied on the Duncan case to
support its indecency policies as recently as 1970. See In re WUHY-FM,
24 F.C.C.2d 408, 412-413 (1970). In a 1962 case, the FCC found that a
D.J.'s banter that included nicknames for local towns (``Ann's
Drawers'' for Andrews; ``Bloomersville'' for Bloomville) and his use of
the expressions such as ``let it all hang out'' was ``obscene, coarse,
vulgar, and suggestive material susceptible of indecent double
meaning.'' Palmetto Broadcasting Co., 33 FCC 250, 251 (1962), aff'd on
other grounds, Robinson v. FCC, 334 F.2d 534 (D.C. Cir. 1964). For
additional examples, see Heins, supra note __ at 89-97.
---------------------------------------------------------------------------
Such decisions obviously are unsupportable today, yet they
represent ``the history of extensive government regulation of the
broadcast medium'' upon which the Commission relies as a ``special
justification'' supporting its indecency policies.<SUP>131</SUP> While
some may argue that the Commission's notion of what is ``patently
offensive'' or ``indecent'' has been updated since the 1930s, this does
not answer the question presented by the indecency standard's emphasis
on ``contemporary'' community standards. The standard was not frozen in
1978, when the Supreme Court decided Pacifica, and the Commission has a
constitutional obligation to determine what type of programming current
audiences have come to expect in 2004. In whatever fashion the
Commission chooses to address this issue, it is clear that the First
Amendment does not countenance the notion of individual Commissioners
using their personal preferences to define community
standards.<SUP>132</SUP>
---------------------------------------------------------------------------
\131\ See Industry Guidance, 16 FCC Rcd. at 8000 & n.9.
\132\ HBO, Inc. v. Wilkinson, 531 F. Supp. 987, 993 n.9 (D. Utah
1982) (striking down indecency standard for cable television because it
established ``a standard that permitted a judge to get out of the
formula any value judgment that he chose to put in''). See also Jones
v. Wilkinson, 800 F.2d 989 (10th Cir. 1986), aff'd mem. 480 U.S. 926
(1987).
---------------------------------------------------------------------------
FCC ENFORCEMENT EXPERIENCE CONFIRMS THE IMPRECISION OF THE INDECENCY
STANDARD
FCC decisions under the indecency standard provide scant guidance
either for those who must enforce or comply with the law. Since there
is no body of court decisions interpreting or applying the indecency
standard in particular cases, licensees must look to the Commission for
guidance. But the FCC's rulings provide no real assistance, because
most are unavailable, thus constituting a body of secret
law.<SUP>133</SUP> The vast majority of indecency decisions are
unpublished, informal letter rulings that are stored in individual
complaint files at the FCC. In this regard, the dismissals would be
most helpful to understanding the Commission's application of the
standard, but these decisions, with a few exceptions, are not made
public. Even where the Commission reaches the merits of an indecency
complaint, its decision typically consists of conclusory statements
regarding its determination that a particular broadcast is
indecent.<SUP>134</SUP>
---------------------------------------------------------------------------
\133\ As Commissioner Copps has noted, of the nearly 500 complaints
received by the Enforcement Bureau in 2002, ``83% were either dismissed
or denied, one company paid a fine, and the rest are pending or
otherwise in regulatory limbo.'' Remarks of Commissioner Michael J.
Copps to the NATPE 2003 Family Programming Forum (January 22, 2003).
\134\ After a comprehensive analysis of the FCC's indecency
rulings, Professor Lili Levy concluded that ``the Commission applies
its policy conclusorily, acontextually, and even inconsistently, in an
ambivalent practice suggesting that it simply knows indecency `when it
sees it.' '' Levy, supra note __ at p.175. See generally id. at pp.
101-112 (discussing cases).
---------------------------------------------------------------------------
Seeking to address this problem (and finally to respond to its
obligation in the Evergreen Media settlement agreement), the Commission
in April 2001 issued a Policy Statement purporting to clarify its
criteria governing enforcement of the indecency standard.<SUP>135</SUP>
It noted that there are two fundamental determinations that must be
made: (1) whether the material depicts or describes sexual or excretory
organs or activities, and (2) whether the material is ``patently
offensive'' as measured by a national standard for the broadcast
medium. The Policy Statement set forth a number of examples of
enforcement actions and sought to analyze their outcomes based on the
degree of explicitness, whether the material ``dwells'' on sexual
matters, and whether the material is ``pandering.'' <SUP>136</SUP>
However, the Commission pointed out that such ``contextual
determinations are necessarily highly fact-specific, making it
difficult to catalog comprehensively all of the possible contextual
factors that might exacerbate or mitigate the patent offensiveness of
particular material.'' In other words, because each case is decided
based on its individual facts, the Commission could not articulate
specifically what factors will distinguish one case from another.
---------------------------------------------------------------------------
\135\ Industry Guidance, 16 FCC Rcd. at 7999.
\136\ Id. at 8003.
---------------------------------------------------------------------------
The FCC's inability to describe how the factors it uses would apply
in a given case highlighted the absence of precision in the indecency
standard itself. The root problem, as the Reno Court recognized, is
with the lack of judicial rigor in the definitions of ``indecency'' and
``patent offensiveness.'' The indecency standard gives the FCC
excessive discretion because it is not limited by requirements that the
affected speech be specifically defined by law, or lack serious merit,
or be considered as a whole. <SUP>137</SUP> These problems were
graphically illustrated by two forfeiture orders that were issued
within weeks of the Industry Guidance.
---------------------------------------------------------------------------
\137\ Reno, 521 U.S. at 872-876.
---------------------------------------------------------------------------
In the first of these decisions, the Enforcement Bureau issued a
$7,000 Notice of Apparent Liability to noncommercial radio station
KBOO-FM for the broadcast of a rap song entitled ``Your Revolution.''
<SUP>138</SUP>-- The song, written and performed by award-winning poet
and performance artist Sarah Jones, is a loose reworking of Gil Scott-
Heron's classic poem, ``The Revolution Will Not Be Televised.''
According to Jones, `` `Your Revolution' was written as a response to
music on mainstream radio which often treats women as sex objects and
play things.'' The song has been performed for junior high and high
school students in educational programs coordinated through the New
York City Board of Education. Nevertheless, the Bureau concluded that
``Your Revolution'' is indecent because it contains ``unmistakably
patently offensive sexual references.''
---------------------------------------------------------------------------
\138\ In the Matter of The KBOO Foundation, 16 FCC Rcd. 10731
(Enforcement Bureau 2001) (issuing $7,000 forfeture for broadcast of
``Your Revolution'').
---------------------------------------------------------------------------
Although the policy statement described the context of a work as
``critically important,'' the Bureau dismissed KBOO's arguments that
the sexual references in ``Your Revolution'' must be evaluated as
contemporary social commentary. It pointed out that ``the Commission
has rejected an approach to indecency that would hold that material is
not per se indecent if the material has merit,'' and concluded that the
FCC ``previously has found similar material to be indecent, and we see
no basis for finding otherwise in this case.'' Despite this confident
assessment, the Enforcement Bureau reversed itself nearly eighteen
months later, in February 2003.<SUP>139</SUP> Describing the broadcast
as ``a very close case,'' the Bureau found that ``on balance and in
context, the sexual descriptions in the song are not sufficiently
graphic to warrant sanction.'' It noted that Sarah Jones has been asked
to perform ``Your Revolution''' at high school assemblies and concluded
that the song did not violate contemporary community standards for the
broadcast medium.
---------------------------------------------------------------------------
\139\ In the Matter of The KBOO Foundation, 18 FCC Rcd. 2472
(Enforcement Bureau, 2003).
---------------------------------------------------------------------------
Shortly after the initial KBOO forfeiture was released, the
Enforcement Bureau issued another $7,000 Notice of Apparent Liability
for the broadcast of a rap song.<SUP>140</SUP> This time, the notice
was issued to a Pueblo, Colorado commercial station for repeated
broadcasts of the ``radio edit'' of the Eminem song ``The Real Slim
Shady.'' Although the Bureau acknowledged that the station played a
version of the song ``that omitted certain offensive language through
the use of a muting device or overdubbed sound effect,'' it found that
``the licensee failed to purge a number of indecent references'' and
that even the edited version of the song ``contains unmistakable
offensive sexual references.'' <SUP>141</SUP>
---------------------------------------------------------------------------
\140\ In the Matter of Citadel Broadcasting Company, 16 FCC Rcd.
11,839 (Enforcement Bureau, 2001).
\141\ The decision brings to mind a recent parody of FCC
enforcement policies in The Onion:
Frustrated FCC Unable to Stop Use of Word ``Friggin''
Washington, DC--The government agency responsible for enforcing
broadcast-decency laws can do nothing to stop rampant use of the word
``friggin,'' Federal Communications Commission Chairman Michael K.
Powell said Monday. ``Everyone knows what it really means when someone
uses that word,'' Powell said. ``Still, we hear it all over the morning
radio shows, all the time. Oooh, it burns me up. Those DJs aren't
fooling anyone, certainly not us here at the FCC. But sadly, our hands
are tied.'' Powell suggested that users of the non-profanity just grow
up. Latest Headlines, The Onion, October 8, 2003.
---------------------------------------------------------------------------
On reconsideration, however, the Bureau found that it had been
mistaken about its previous ``unmistakable'' conclusions. It
characterized the sexual references in the radio edit of ``The Real
Slim Shady'' as ``oblique,'' and not ``expressed in terms sufficiently
explicit or graphic enough to be found patently offensive.'' As to the
context of the song, the Bureau concluded that the edited version did
``not appear to pander to, or to be used to titillate or shock its
audience.'' <SUP>142</SUP>
---------------------------------------------------------------------------
\142\ In the Matter of Citadel Broadcasting Company, 17 FCC Rcd.
483 (Enforcement Bureau, 2002).
---------------------------------------------------------------------------
These decisions show that the FCC is sometimes willing to correct
its mistakes--which is good--but they also show that the agency was
unable to apply its own standard even as it was attempting to provide
industry guidance. The initial rulings effectively banned the material
in question from the air, except for radio stations that might have
been willing to risk the transmission of material already branded by
the government as indecent. <SUP>143</SUP> Sarah Jones' ``Your
Revolution'' was kept off the air for almost two years, while the radio
edit of ``The Real Slim Shady'' was banned for over six months.
---------------------------------------------------------------------------
\143\ See KGB, Inc., 13 FCC Rcd. 16396 (1998) (``higher degree of
culpability for the subsequent broadcast of material previously
determined by the Commission to be indecent''); Industry Guidance, 16
FCC Rcd. at 8016 (same).
---------------------------------------------------------------------------
In cases such as this, the fault lies not so much in the agency as
in the standard it has been called upon to enforce. Indeed, the initial
indecency findings regarding Sarah Jones and Eminem were foreshadowed
by Justice Brennan's dissent in Pacifica where he criticized the
plurality for its ``depressing inability to appreciate that in our land
of cultural pluralism, there are many who think, act, and talk
differently from the Members of this Court, and who do not share their
fragile sensibilities.'' He added that ``[i]t is only an acute
ethnocentric myopia that enables the Court to approve the censorship of
communications solely because of the words they contain.''
<SUP>144</SUP> The FCC illustrates Justice Brennan's point only too
well, where five political appointees have been tasked with defining
``contemporary community standards for the broadcast medium.''
Experience shows that the Commission is ill-equipped to do
so.<SUP>145</SUP>
---------------------------------------------------------------------------
\144\ Pacifica, 438 U.S. at 775 (Brennan, J., dissenting).
\145\ See WUHY-FM, 24 F.C.C.2d at 423 (Dissenting statement of
Commissioner Johnson) (``What the Commission decides, after all, is
that the swear words of the lily-white middle class may be broadcast,
but that those of the young, the poor, or the blacks may not.''); Levy,
supra note 17 (indecency restrictions have led to ``class- and race-
based censorship''). See generally id. pp. 70-85.
---------------------------------------------------------------------------
Administrative procedures that the Commission believed would
mitigate the inherent uncertainty of the indecency standard have proven
to be an utter failure. The FCC in the past has asserted that, if
individual rulings fail to ``remove uncertainty'' in this ``complicated
area of law,'' it may use its power to issue declaratory rulings to
clarify the indecency standard. <SUP>146</SUP> In practice, however,
the Commission has never granted such a request.
---------------------------------------------------------------------------
\146\ See New Indecency Enforcement Standards, 2 FCC Rcd. at 2727.
---------------------------------------------------------------------------
When Pacifica Radio sought to broadcast its annual Bloomsday
reading from James Joyce's Ulysses, the Commission declined to issue a
declaratory ruling that the material was not indecent despite a 60-
year-old judicial precedent supporting the literary value of the book.
<SUP>147</SUP> The FCC's refusal to issue an opinion on the literary
merits of Ulysses (in the same year it promised to ``remove
uncertainty'' through declaratory rulings) is particularly telling. As
Judge Sloviter observed in holding that the CDA's indecency standard
was invalid, the government's promise that it will enforce the
indecency standard ``in a reasonable fashion . . . would require a
broad trust indeed from a generation of judges not far removed from the
attacks on James Joyce's Ulysses as obscene.'' <SUP>148</SUP>
---------------------------------------------------------------------------
\147\ William J. Byrnes, Esq., 63 R.R.2d 216 (Mass Media Bur.
1987). See United States v. One Book Entitled Ulysses, 72 F.2d 705 (2d
Cir. 1934).
\148\ ACLU v. Reno, 929 F.Supp. at 857.
---------------------------------------------------------------------------
The Commission has refused to clarify its indecency standard even
in the face of judicial requests for guidance. In Playboy, for example,
the district court asked whether there are ``any FCC letter or advisory
opinions that are available to assist this Court, the plaintiff, or
other channels . . . in construing the permissible scope of
regulation.'' <SUP>149</SUP> Notwithstanding the district court's
prompting, the FCC rejected Playboy's request for a declaratory ruling
to clarify the status of a safe sex documentary that was to premiere on
World AIDS Day in December 1997, anlong with several other programs. In
a one-page letter denying the request, issued long after World AIDS Day
came and went, the Chief of the Cable Services Bureau wrote that
``declaratory rulings related to programming issues must be dealt with
cautiously'' and ``have the potential to be viewed as prior
restraints.'' <SUP>150</SUP>
---------------------------------------------------------------------------
\149\ Playboy Entertainment Group, Inc. v. United States, Civil
Action No. 96-94-JJF (D. Del. Oct. 31, 1997), slip op. at n.6.
\150\ See Letter from Meredith J. Jones, Chief, Cable Services
Bureau to Robert Corn-Revere, Counsel for Playboy Entertainment Group,
Inc. (January 30, 1998).
---------------------------------------------------------------------------
Just as the declaratory ruling process was no help to Playboy, it
failed to provide any specific relief for Sarah Jones, whose work was
banned from the air for eighteen months by the Bureau's forfeiture
order. Jones initially filed a declaratory judgment action in federal
district court seeking a determination that the work is not indecent
and that the FCC's decision violated her rights under the First and
Fifth Amendments. However, the court dismissed the action, finding that
the Bureau decision was not ``final agency action'' and that any appeal
from a final action must be brought in the court of appeals. The court
suggested that Jones should ask the FCC to issue a declaratory ruling
if she was concerned about delay in obtaining a final
order.<SUP>151</SUP> On October 2, 2002, Jones filed such a declaratory
ruling request, but it was dismissed as moot when the Bureau reversed
its initial order in February 2003.
---------------------------------------------------------------------------
\151\ Sarah Jones v. FCC, 30 Media L. Rep. 2534 (S.D.N.Y. Sept. 4,
2002), vacated as moot, Docket No. 02-6248 (S.D.N.Y. March 12,
2003)(not reported in F. Supp. 2d).
---------------------------------------------------------------------------
Although Jones ultimately got the substantive ruling she sought as
a result of KBOO's reconsideration request, the FCC's declaratory
ruling procedures did nothing to expedite the process or clarify the
law. Even with the correct (albeit grossly delayed) resolution, the
Bureau's description of the matter as ``a very close case'' ensures
that artists and broadcasters will derive no meaningful guidance from
the reconsideration decision, other than in its application to the poem
``Your Revolution.'' <SUP>152</SUP> If the Commission still believes
that the Sarah Jones matter was ``close,'' then the only thing that is
clear about this area of law is the FCC's inability to evaluate
artistic merit.
---------------------------------------------------------------------------
\152\ KBOO Foundation, 18 FCC Rcd. 2472.
---------------------------------------------------------------------------
VI. THERE ARE NO QUICK FIXES THAT CAN CURE THE CONSTITUTIONAL DILEMMA
POSED BY THE INDECENCY STANDARD
Given the inherent imprecision of the indecency standard it is
superficially tempting to remove uncertainty simply by specifying which
words are forbidden on radio and television. The FCC followed this
approach between 1978 and 1987 by focusing enforcement on the seven
words contained in the George Carlin routine that led to
Pacifica.<SUP>153</SUP> However, the Commission concluded that the
approach was unsatisfactory, and in mid-1987 announced that it would
apply the indecency standard generically. Now, after 16 years of
experience with the generic standard, people both inside and outside
the FCC are advocating once again the adoption of specific
prohibitions. As noted earlier, Chairman Powell reportedly has called
for a per se ban on profanity between 6 a.m. and 10 p.m. (with a
possible exception for political speech),<SUP>154</SUP> and Congressman
Ose has introduced a new list of prohibited words.<SUP>155</SUP>
---------------------------------------------------------------------------
\153\ The seven words are ``sh*t, p*ss, f**k, c*nt, c**ksucker,
motherf**ker, and t*ts.'' Pacifica, 438 U.S. at 751 (Appendix to
opinion of the Court).
\154\ Ahrens, supra note 5.
\155\ H.R. 3687 would impose a categorical ban on the words ``
`sh*t', `pi*s', `f**k', `cu*t', `a**hole', and the phrases `` `c**k
sucker', `mother f**ker', and `a** hole.' '' It inexplicably drops the
word ``t*ts'' from the list set forth in Pacifica and adds the word
``a**hole'' twice.
---------------------------------------------------------------------------
Such a per se approach is unlikely to remove uncertainty in the way
its proponents hope, and would raise a host of new constitutional
questions. Currently, the indecency standard seeks to evaluate the
context in which words are used as a diluted proxy for the obscenity
test's ``serious merit'' prong. Removing this factor from the analysis
would mean that the listed words are considered indecent regardless of
the context, so long as they are broadcast between 6 a.m. and 10 p.m. A
per se approach would be easier to apply than the current indecency
standard (at least initially), but would impose significant penalties
on speech that unquestionably is protected by the First Amendment. For
example, such a rule would impose significant penalties on any
broadcaster who permitted readings from certain portions of the
Bible.<SUP>156</SUP>
---------------------------------------------------------------------------
\156\ See, e.g., I Samuel 25:22 (``So and more also do God unto the
enemies of David, if I leave of all that pertain to him by the morning
light any that p*sseth against the wall.''); II Kings 18:27 (``hath he
not sent me to the men which sit on the wall, that they may eat their
own dung, and drink their own p*ss with you?''); Isaiah 36:12 (same).
Holy Bible (King James Version) (emphasis in original).
---------------------------------------------------------------------------
It would also impose sanctions on broadcasters that transmitted one
of the forbidden words during a newscast, or in the presentation of
classic literature. The FCC has faced such questions in the past:
In 1991 the Commission dismissed an indecency complaint against
National Public Radio for a newscast which included an except
of a wiretap from the trial of mob boss John Gotti. The words
``f**k'' or ``f**king' were repeated ten times in a 30-second
segment. Nevertheless, the Commission found that the
``surrounding circumstances persuade us that the use of
expletives during the Gotti segment does not meet our
definition of broadcast indecency.'' <SUP>157</SUP>
---------------------------------------------------------------------------
\157\ Letter to Peter Branton, 6 FCC Rcd. 610, 611 (1991) petition
for rev. dismissed, 993 F.2d 906 (D.C. Cir. 1993).
---------------------------------------------------------------------------
When Pacifica radio sought a declaratory ruling permitting it to
broadcast annual Bloomsday reading from James Joyce's Ulysses,
the Commission declined to give ``official'' approval. But it
noted that ``the Commission specifically declined to define
indecency by referring to a list of particular words,'' and
stressed ``the fact that Pacifica's petition recited passages
containing some of the same words that were involved in the
1978 and 1987 Pacifica rulings is not necessarily
dispositive.'' <SUP>158</SUP>
---------------------------------------------------------------------------
\158\ William J. Byrnes, Esq., 63 R.R.2d 216. The Bureau noted that
Pacifica ``should be able to make an informed decision with respect to
the proposed broadcast, and helpfully cited the district court opinion
in United States v. One Book Entitled Ulysses, 5 F. Supp. 182 (S.D.N.Y.
1933): ``although [the book] contains . . . many words considered
dirty, I have not found anything that I consider to be dirt for dirt's
sake.''
---------------------------------------------------------------------------
A per se indecency rule would preclude the FCC from allowing this type
of editorial discretion in the future. Such an inflexible rule would
thus invite close judicial scrutiny for restricting too much
expression, including speech that has serious literary, artistic, or
scientific merit.
Perhaps for that reason, Chairman Powell reportedly has suggested a
possible exception to a per se rule for ``political'' speech. However,
from a constitutional standpoint, it is difficult to justify such a
carve-out without also including news, commentary, literature, or art.
Moreover, assuming such a technical limitation is possible, it is
difficult to predict how it would provide the type of limits that its
proponents presumably intend. For example, if U-2's Bono had made a
political statement during the Golden Globe presentation (e.g.,
``thanks for the trophy, and, by the way, f**k the war in Iraq''), the
Commission would face the same interpretive problem that currently
exists, given the weight of precedent in this area. <SUP>159</SUP> In
short, there are no easy answers in this area, whether one proposes a
straight per se indecency rule, or one with one or more exceptions.
Either way, Congress and the FCC will have the task of drawing and
defending a line between speech that is protected and expression that
can be punished.
---------------------------------------------------------------------------
\159\ E.g., Cohen v. California, 403 U.S. 15, 25 (1971) (political
slogan ``f**k the draft'' is protected under the First Amendment). This
was just one of a series of decisions in which the Supreme Court held
that the use of four-letter words in a variety of political contexts is
constitutionally protected. E.g., Papish v. Board of Curators of the
University of Missouri, 410 U.S. 667, 670 (1973) (university
newspaper); Kois v. Wisconsin, 408 U.S. 229, 231-232 (1972) (``sex
poem'' in underground newspaper); Cason v. City of Columbus, 409 U.S.
1053 (1972); Rosenfeld v. New Jersey, 408 U.S. 901 (1972) (school board
meeting); Lewis v. City of New Orleans, 408 U.S. 913 (1972)
(confrontation with police); Brown v. Oklahoma, 408 U.S. 914 (1972)
(political rally).
---------------------------------------------------------------------------
CONCLUSION
Congress and the FCC currently are considering an array of
proposals to increase the level of enforcement of the FCC's broadcast
indecency rules and to apply the standard more strictly. However, it
has been 25 years since the Supreme Court considered the First
Amendment implications of indecency enforcement in the context of
broadcasting, and much has changed during that time. Any move to
reaffirm the existing rules or to make them more stingent must be
accompanied by a comprehensive review of the rules' constitutionality.
The law of indecency is the direct descendent of the Hicklin rule--
a legal doctrine born during the reign of Queen Victoria. Imported to
America during the age of Anthony Comstock in the Nineteenth Century,
it governed obscenity law until the First Amendment was brought to bear
over half a century later. Under its lax standards, courts focused
primarily on the potential impact of books on children, with the
predictable result that literary classics were prosecuted and banned.
This doctrine is unknown in American jurisprudence today but for one
area: the FCC's broadcast indecency rules. Although courts and the
Commission routinely state that indecent speech--unlike obscenity--is
constitutionally protected, the standard the government employs permits
it to penalize speech without regard to the work as a whole, its
artistic merit, or its overall appeal to the average person.
Where the Victorian era obscenity standard was used to censor
Ulysses, An American Tragedy, and Tropic of Cancer, the indecency
standard has effectively suppressed works like the Peabody Award winner
The Singing Detective, critically-acclaimed plays, and political poetry
like ``Your Revolution.'' Because of its vagueness, the indecency test
can be used to restrict a wide range of constitutionally protected
speech including ``discussions of prison rape or safe sexual practices,
artistic images that include nude subjects, and arguably the card
catalogue of the Carnegie Library.'' <SUP>160</SUP> For that reason, a
full constitutional review of the FCC policy is essential.
---------------------------------------------------------------------------
\160\ Reno, 521 U.S. at 878.
Mr. Upton. Thank you.
Mr. Wertz.
STATEMENT OF WILLIAM J. WERTZ
Mr. Wertz. Thank you, Mr. Chairman and members of the
committee, for allowing me to share our convictions on the
issue of decency and community standards with you.
We are a long-time broadcast licensee, and we believe that
the broadcast license should be permitted to use the seven
words George Carlin says you can use on the air.
I understand first amendment considerations cause the FCC
to be reluctant to take a firm stand on obscenity and community
standards issues, and the root of this likely dates to when the
National Association of Broadcasters Code of Ethics was struck
down on antitrust issues over 20 years ago in a court case
brought by the Justice Department against the NAB. Since the
NAB settled that case and the Code of Ethics was eliminated,
there has been a steady decline of over-the-air decency
standards as some have pushed the envelope to the ripping point
and far exceeded what any reasonable person would find as
generally accepted community standards.
We aired announcements on WQLR and WKZO, two of our
stations, and would like to share some of them with you.
Although I do not consider myself a prude, I find the level
of obscenity on the air is not tolerable. Please fight for much
stricter guidelines and controls so our children do not have to
listen to the vulgar garbage that seems to be taking over.
From another E-mail: This is a sensitive subject,
especially when you are raising a 12-year-old son. Your
stations I believe do set the tone in this community. It is so
troubling to see what is really happening out there today, in
journalism, print, radio, and television. There just seems to
be almost no stopping as to where this is going.
And the third: For the love of our children, we should not
rob them of their innocence by perverting their minds and
exposing them to the vile hatred that we are witnessing in the
world today.
The National Association of Broadcasters issued a voluntary
statement of principles for radio and TV broadcasters in the
early 1990's, but it has no enforcement action.
I would suggest this hearing cover a majority of issues,
including, and I quote: Where significant child audience can be
expected, particular care should be exercised when addressing
sexual themes. Obscenity is not constitutionally protected
speech and is at all times unacceptable for broadcast.
In conclusion, our company has always strived to set the
bar for radio broadcasting in Kalamazoo, Michigan, and the
subject of this hearing is vitally important to our listeners,
to our community, and to us.
We are very concerned that we witness the steady decline of
over-the-air decency standards and at the same time lament the
determination in 1982 of the NAB Code of Ethics that held
stations to a higher standards. The voluntary NAB statement of
principles should be an excellent starting point for restoring
decency as defined by generally accepted community standards.
It is my hope the government would permit NAB to establish
voluntary guidelines and allow it to create a self-enforcement
division that would administer obscenity and decency on radio
and TV and also that NAB will accept this responsibility. I
will personally volunteer my time to NAB, if it is permitted,
to pursue this avenue. Many of us in radio have repeatedly
asked for clear guidelines and guidance from the FCC, but
perhaps it is best if these guidelines were developed by those
of us in the industry on this issue. It is my hope that this
hearing today will begin that process.
Thank you, Mr. Chairman.
[The prepared statement of William Wertz follows:]
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Mr. Upton. Thank you all for your testimony.
At this point, we will take questions from members of the
subcommittee and those who have got unanimous consent.
I would note Mr. Wynn gets 8 minutes since he deferred on
his statement when we get to his turn.
Mr. Solomon, you indicated--I am maybe going to put words
in your mouth, but it seemed to me in your testimony that you
welcomed Chairman Powell's statement that they were going to
reverse the decision of the enforcement decision with regard to
Bono's comment. Do you have an indication of when that may
occur?
Mr. Solomon. When?
Mr. Upton. I actually would have thought they would have
decided that before this hearing.
Mr. Solomon. Well, as a personal matter I would have
thought they would have put me out of my misery and decided
before today as well, but they are actively working on it and
it is under active consideration by the commissioners.
Mr. Upton. Oh, good. I am pleased to hear that.
I want to say off the Web I was able to get a whole list of
different broadcasters, obviously, mostly radio, and the fines
that had occurred over the last couple years and with that,
too, was able to get the transcript. We were able to get the
transcript, as to why they were fined. What concerns me as I
look through this list is that there are a number of
broadcasters in different parts of the country that are repeat
offenders.
And pretty bad stuff in my reading of what went on. And to
me, it clearly defines the reason of why we are pursuing H.R.
3717 and have such broad bipartisan support, and not only in
the Congress but certainly on the subcommittee and the full
committee.
And I would have to say, based on your experience as the
Enforcement Bureau Chief, do you believe that our bill, 3717,
which allows for the tenfold increase in the fine, will put a
serious damper if not an end to some of the repeat violations
that a number of the broadcasters are going through?
Mr. Solomon. I think it would very much have a significant
effect. Certainly my experience, not just in this area but in
other areas of enforcement, is that higher penalties, not just
when used as a punishment but also as a deterrent, do have an
effect. Whether it would eliminate it, I don't know. But I
think it would have a significant effect.
I think also this is also combined with the fact that the
Commission has made clear that in the kinds, for example, of
repeat cases that you are talking about, it is now looking
seriously at the potential for revocation. I think that any
sort of series of strong signals that the penalties are going
to be increased should have a deterrent effect.
Mr. Upton. I was going to ask you about revocation next.
You know, I indicated in my opening statement three--some
number--the three strikes and you are out legislation that the
Congress passed a number of years ago.
What is your sense of three times and you are off? I mean,
some of these occurrences, in essence, are three times or more,
just in the last couple of years. And, again, pretty serious
violations in terms of the content that I read.
Mr. Solomon. I agree that the kind of repeated offenses by
often the same licensees and even the same disk jockeys or
other people on the air is a cause for very serious concern.
And I think that is why we have made clear that we are
starting seriously to look at revocation as a potential remedy
during the period after the Commission had announced that as
its new approach.
Mr. Upton. As I think about the future of our bill in terms
of trying to move it quickly--it appears as though we are
likely to have another hearing before we get to the markup
stage--it might be instructive for us to have one of these
violators come and talk about the impact of the fine, perhaps
$7,000 or whatever, and what our bill would do to the type of
content that they aired.
Mr. Bozell, what is your sense on these two questions that
I asked Mr. Solomon?
Mr. Bozell. Well, I think it will make a tremendous
difference, simply because $27,000 is meaningless. It is one--
as one Member of Congress said, $270,000 will be meaningless as
well to a multibillion-dollar corporation. That is just a good
TV ad there.
If you slap a $3 million fine for continued violations, you
will get their attention. And if behind it comes the threat of
license revocation, you will get their attention. In the ruling
yesterday on that one radio show, I think it was commendable
that the FCC levied a $750,000 fine. But I believe in his
dissenting opinion that Commissioner Copps was also correct in
saying that what the FCC should have done is announced that it
was going to look to revoke the license of those stations,
because this was--they have been doing it since 1997, I
believe. They have been laughing in everyone's face.
Mr. Upton. I would just note in reading some of the
decisions, it seems like virtually every one of the
commissioners has said in their statement they wish the fine
could be more.
Mr. Bozell. That is correct. That will get their attention.
I mean if a station is receiving not just a higher fine, but,
as I believe you have proposed in your bill, which is extremely
important, a fine for every occurrence instead of just one
fine--if you put a fine for every time they used an obscenity
or an indecency and you totaled them up, then like the Senator
once said, sooner or later it will be serious money.
Mr. Upton. We might be able to balance the budget maybe.
Mr. Markey.
Mr. Markey. Thank you, Mr. Chairman, very much.
Mr. Bozell, your testimony makes reference to the fact that
the ownership of a broadcast property is a privilege.
Mr. Bozell. Yes, sir.
Mr. Markey. And, as you know, the broadcasters wish to own
even more broadcast properties, and that Chairman Michael
Powell of the Federal Communications Commission agrees with
that, and in fact, has been able to pass out of the Federal
Communications Commission a new regulation which is now in
court that would allow one company to own the biggest newspaper
in town, 3 TV stations in that town, 8 radio stations in that
town, the cable system for that town, and all of the Internet
Web sites related to all of those entities providing
information in that community. So that means that it would be
an even greater privilege for each of those companies in each
community.
Could you elaborate, Mr. Bozell, on this whole notion of
the privilege of owning a broadcast property, and what the
concomitant responsibilities are that attach to that?
Mr. Bozell. Yes, sir. The Supreme Court has said, in
effect, that they are called public airwaves for a reason. They
belong to the public. The late Steve Allen once told me a very
insightful insider's view of this. He said, Back in the 1950's
and through the early 1960's in the entertainment community,
you saw yourself as an invited guest in the family living room
where there were children assembled. As such, you performed for
the family because you were the guest of the family in the
living room.
As Senator Joe Lieberman says, today it is a situation
where families are trying to impart values at the kitchen
table, and then when the children go into the living room
afterwards, you have got an industry that tells them that they
can tell their parents to drop dead.
But these are the public airwaves. These do not belong to
the networks. Never have, never will. They belong to the
public, therefore, and the Supreme Court has stated such, that
they have a responsibility to abide by community standards.
And I would ask you, Congressman, and I applaud you for
cosponsoring this bill which I think is so important, I would
ask you, Can anyone name me a single community in the United
States of America that abides by these kind of standards where
they find this acceptable?
This is abhorrent to every community in America, even
90210. So the networks don't have a leg to stand on. And I
believe that what the Congress ought to have been doing with
this vote on ownership is to say to them that you have abused
that privilege, you have abused that right; rather than giving
you more stations, we are going to take some away.
Mr. Markey. Let me ask you this, Mr. Bozell. The standard
which Mr. Upton and I have built into this legislation would
increase the fines from $27,000 up to $270,000. But we are open
on this question, because it raises the question, when
individual companies have revenues for a year of $27 billion,
whether or not that is a sufficient deterrent.
Given the consolidation that is perhaps in the immediate
historical future, would it perhaps make some sense to tie the
fine to the number of stations that a company own, and have the
control over in broadcasting this information, or the revenues
of that company, rather than a $270,000 fine? Have you given
any thought to what would be the best-tailored punishment if
there is a violation of these standards?
Mr. Bozell. I think, Congressman, that it ought to be a
fine per occurrence, per station, airing that violation.
Because the stations are the ones making the decision to air
it.
Now, if you asked the affiliates what they think about
that, they will say, Now wait a minute. This, Congressman, is
the blame game that everyone plays. Everyone blames someone
else. Their answer will be, You can't blame us because the
networks don't let us see this programming before we air it.
And they, in fact, say to us or infer to us that if you give us
any trouble, we are not going to let you be part of the
network, and we are going to give your affiliation to someone
else. So we have to air this. No, we ought to make the
affiliates take responsibility for their actions. You air it,
you violate it, you get fined.
Mr. Markey. Under what scenarios, Mr. Bozell, should a
license be revoked? What would you establish as the test, if
there were a series of violations, that would then invoke the
revocation of the ownership of a television station?
Mr. Bozell. Congressman, I think it is intent that is at
the bottom line here.
Mr. Markey. What would be intent? The intent to do what and
how many offenses, over what period of time? What would you
establish as the standard?
Mr. Bozell. I don't know that I would establish a numerical
quotient on this, but I think I would look at what is the
history of this station, to what degree--when Clear Channel
puts out a statement yesterday saying it is not their intent to
be indecent, I believe that is preposterous. Of course it is.
That is what they have been trying to do with these shock
jocks.
I think that if the intent is to be indecent, and I think
if it is established that there is a history of this, that they
have been warned, they have been fined, and they continue doing
it again, I think there becomes a point when you can look at
that and say, You don't have any intention of abiding by the
law.
Mr. Markey. Mr. Bozell, thank you. And I thank all of you
for your participation here today. I think this is a very
important American discussion about the future of the
relationship of all families and the sights and the sounds
which are allowed to go into living rooms all across the
country. I don't think that there is a more important cultural
debate that we could be having.
Mr. Upton. Mr. Bilirakis.
Mr. Bilirakis. Thank you, Mr. Chairman. Mr. Solomon--well
named, by the way. Has the FCC ever tried to revoke a license
for indecency?
Mr. Solomon. It has not had any revocation hearings on
indecency. Last year the Commission announced for the first
time that it was going to start looking at revocation for
behavior that took place after that announcement. And I can
tell you we are doing that as we look at cases.
Mr. Bilirakis. So in other words, the Communications Act of
1934, as amended, did not give them that authority?
Mr. Solomon. It gave us the authority. The Commission in
general doesn't revoke very many licenses and tends to focus on
misrepresentation and abuse of process. So it was significant
that it announced that it was going to also look at indecency
cases as an area for possible revocation.
Mr. Bilirakis. That hasn't scared too many people,
apparently.
Mr. Corn-Revere, referring to that same act, the 1934, I
know you are a first amendment specialist and whatnot, but in
terms of the act as it exists, you know amended and whatnot, do
you have any problems with the act, the intent of the Congress
in the act?
Mr. Corn-Revere. No, not per se. But there are some
tensions in the act that have to be addressed. Not only did
Congress adopt what originally was section 27 of the Radio Act
that became part of the Criminal Code, but it also adopted
section 326, which says that it does not give the FCC the power
of censorship, either by direct rule or by condition.
So the difficulty has been, both from a matter of statutory
interpretation and constitutional analysis, how to resolve that
tension.
Mr. Bilirakis. All right. But you refer to the--giving the
FCC the power of censorship. The act, though, would give, as I
understand it, the right to preempt network programming as a
right granted to local licensees understood under that act. And
as I understand it again, the real world, is that increasingly
network affiliation agreements threaten affiliates with
termination of their network affiliation if there are more than
2 or 3 preemptions of network programming, I guess, depending
on the contracts, without the network's consent.
So I guess I would ask all of you that question. Doesn't
this undermine the rights of Congress specifically delegated to
broadcast licensees under the Communications Act to program
their stations in a manner that serves the public interest,
convenience, and necessity?
Should, Mr. Solomon et al, the rest of you, should the
networks have the right to use their power of negotiation, if
you will, in granting licenses to operators or whatnot? People
have invested, you know, their life savings, et cetera, et
cetera, and all of the money that they have had to borrow, to
start a broadcast station, they need the affiliation, they need
the programming and whatnot.
So what power do they have, in spite of the fact that
Congress has given them that right? At least the way that I
think it has been interpreted.
Mr. Solomon. Let me make two points. One is there is a
proceeding pending before the Commission involving the
affiliates and questions about the affiliate-network relation,
so I don't want to comment on that proceeding.
But certainly the premise of your question from a
perspective of how we do enforcement, if we find a TV program
to be indecent that was broadcast over a number of stations, we
would look to take enforcement action against each of those.
Mr. Bilirakis. But what I am saying is that the licensee
should have the right to determine--they are charged with the
responsibility. They are fined by the FCC when in fact this
indecent programming takes place on their station.
Should they then have a right to determine whether or not--
Congress gave them that right, as I understand it, to determine
whether or not they want that on their station, in that
particular locale, if you will--should they have that right?
Congress gave them that right. Do we disagree with that in
terms of interpreting what Congress' intent was back in 1934
and since then? Do we have a problem with that? We don't. So
what should Congress do, then, in order to abide by that intent
of Congress regarding licensees having the right that Congress
intended them to have?
Mr. Wertz. I would like to answer that.
Mr. Bilirakis. You are a radio station. That is the only
reason I didn't focus it on you.
Mr. Wertz. We are radio, but for this committee as well for
everybody, radio plays to the largest theater of all, the
theater of the mind, where television plays to 2-D. So, a
little aside.
The Communications Act: There are a few things that we
would like as long-term broadcasters to see brought back.
Ascertainment existed until I believe sometime in the mid- to
late 1970's. And ascertainment was a process where we as
licensees were required to go out into our community and find
out what made it work and what, more specifically, made it not
work. And we couldn't fix problems, but we could certainly
offer, you know, two sides the opportunity to discuss our needs
of our communities on the air.
As part of deregulation, that process has been eliminated.
I think that was a mistake. You know, third class operator
permits used to be required for on-air talents. That was from a
technical standpoint, because they were operating the
transmitters.
But I would like to see, from the talent side--and this is
as an owner--I would like to see talent be given permits again.
And as part of that, before we punish people, let's educate
them. Let's train them as to what they can and cannot say, and
then give them permits so that when they actually go on the air
they have some clear guidelines that we have not had any
direction from in over 20 years. You know, the education, I
think, is a very important part of this whole process.
Mr. Upton. Go ahead.
Mr. Bozell. Congressman, the law states that these networks
have to abide by community standards, local community
standards. How can they abide by community standards when they
don't allow the affiliates to have a say in community
standards?
Mr. Bilirakis. Amen. Correct. So that is really my whole
point. I wonder--we are talking about words here. And who was
it, Greg and others have brought up the point that--and Mr.
Corn-Revere referred to the Bible and whatnot. So I don't care
how many words we come up with in this legislation, there are
going to be other problems arising, other words, if you will,
other phrases, et cetera, other conduct, et cetera.
So shouldn't we be giving them the authority? Mr. Chairman,
forgive me for taking up so much time. Shouldn't we be giving
them the authority that is intended by Congress in the first
place to the licensees to make that determination, which is
what was intended?
Well, all right, I am not asking for an answer to that. We
have already taken up too much time. But that is something that
we ought to be focusing on. Thank you.
Mr. Upton. Thank you. Mr. Rush.
Mr. Rush. Thank you, Mr. Chairman.
Mr. Solomon, I am going to venture off into another area of
this discussion. In a column that appeared in one of my local
newspapers, the Chicago Sun-Times, dated January 23, 2004, a
column written by a former education reporter for the same
newspaper and also now currently a teacher in a public school
in the city of Chicago, she writes and I quote--I am just going
to amend this, just give you some of the highlights of this
column.
She writes: For at least a month, radio pirates have been
broadcasting profane, violent rap music on Chicago airwaves
using a frequency belonging to contemporary Christian station
WCFL.
I came upon this pirate station by accident, scanning the
dial while driving near the elementary school where I teach. I
nearly drove into oncoming traffic when I heard FM taken over
by MF. It was a riveting radio, especially if you are old
enough to remember when Shat was a bad dot, dot, dot, and the
second half of the compound word was shut your mouth.
Then she goes on to describe some of the words, not
describe some of the material. She said the material broadcast
by the pirates was so low that any thinking person who listened
would surely doubt his sanity. One song was about a drug dealer
who was seduced by a woman who was working for another drug
dealer, and while the first drug dealer was having sex with the
woman, he happened to roll over just in the nick of time to see
the woman's head get blown apart by a bullet shot through a
window intended for the first drug dealer. And the line about
her brains splattered all over the bed and the walls really
stuck with me.
That leads me into my question. She also indicates that she
did call the FCC and someone, who I don't want to put into the
public record, said there don't seem to be any complaints. She
said in response to a complaint, investigators with electronic
monitoring equipment hunt down the pirate signal.
Is there a problem that the FCC has been--has discovered?
Are you aware of a serious problem with pirates using the
airwaves and pirating the airwaves and using all kinds of
provocative and indecent language over the airwaves?
Mr. Solomon. There certainly is a problem with pirate
radio. We have made that a major priority. We have field
offices in 25 locations around the country. And pirate radio is
an important aspect of what they do. We do have, as you alluded
to, interference detection equipment that we can use to locate
the signals.
Last year we shut down something on the order of 300 pirate
radio stations around the country. We do it through a variety
of means. In the first instance, we often do it through
warnings. In extreme instances, we work with the Department of
Justice and seize the equipment with U.S. Marshals. In a few
cases we have also worked with U.S. Attorney's offices where
there have been injunctions or even criminal actions.
So pirate radio is a problem. It is something that we have
given high priority to. Our focus is really on shutting down
the pirates per se, more than focusing on what it is that they
are saying, because even if what they were saying was, ``good
stuff,'' they still shouldn't be on as unlicensed. It can
interfere with other broadcasters. In some cases it can
interfere with aviation frequencies. So it is a serious
problem.
Mr. Rush. Has there been a significant increase in the
number of pirate stations over the last, say, 3 to 5 years?
Mr. Solomon. I think it has probably been fairly steady. I
think--maybe this is overly optimistic--we are having some
inroads. There are some areas where it is still very serious,
but in some other areas I think we have made progress.
Mr. Rush. In order to initiate an FCC investigation, what
would be the process?
Mr. Solomon. They can call our field office, call me or e-
mail me. We have a division in Washington called the Spectrum
Enforcement Division. They can contact them, and we give the
information to the field and they do investigate it.
Mr. Rush. So one would just have to inform the FCC via e-
mail, letter, or phone call in order to initiate an
investigation?
Mr. Solomon. Right. In this area, yes.
Mr. Rush. Are there any kind of criminal proceedings or any
kind of financial fines or anything levied against those
individuals who are involved in it?
Mr. Solomon. Yes, we can take several actions. In many
cases we have issued fines. In some cases we have, working with
the U.S. Marshals, seized the illegal equipment. In other cases
there have been some injunctions or arrests in terms of
repeated or extreme offenses. So we have a series of tools, and
we use several of them.
Mr. Rush. So has any violator or pirate been jailed?
Mr. Solomon. I think there was one in Florida that had a
criminal conviction. That may have been an amateur. I know
there was also an injunction in Florida. The most serious
problems are in south Florida.
Mr. Rush. Thank you, Mr. Chairman. I yield back.
Mr. Upton. Thank you. Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. Again, I appreciate
this hearing. And in the opening statement, one thing I forgot
to mention, that of all of the problems and concerns that the
Nation is experiencing in this area, this is my No. 1 issue
that people have contacted me for.
I know Mr. Terry added on to what we were discussing; but
when I say it is the proverbial straw, it has really awakened a
great segment of my district. So I want to ask questions with
direction to the piece of legislation proposed and also the
concern of addressing intent.
Legislatively, there is always a problem when we pass laws.
And I think we know there are malicious actors out there that
are intent on trying to grab an insidious part of a market
share, and they are abusing the public airwaves. No one
disputes that. Those are the people that we want to go after.
Those are the people we want to shut down because they are
abusing the public airwaves.
Mr. Corn-Revere, you mentioned scripture, which brings us
to this issue of intent. Second Timothy 3:16 says: All
scripture is inspired by God and profitable for doctrine for
rebuke, for training and righteousness, but the man of God
might be equipped for every good deed.
So if we just had a radio show and quoted scripture and
then penalized the use of the word in scripture, the intent of
the language in the scripture is not to debase, but it is to
train, instruct, and it is--to train in righteousness. That is
the whole intent.
So I am going to throw out, how do we fashion legislative
language--and I am a cosponsor--to make sure that we go after
the bad actors, the people who are intending to defraud and
abuse and misuse the public airwaves, and not go after, you
know, as I said in the opening statement, slippage? And how do
you craft in the FCC a ruling body that can judge intent?
And I am going to stop. I am going to throw it open to you
all. But one of the things and one of the points addressed by
the committee was an issue of multiple utterances in a defined
monologue and speech over maybe the course of a show. I mean,
if you hear it two times in the same sentence, then you can
probably guess that wasn't a slip, it is part of a show. It is
part of the aura of that period of time. Where if it was just a
mistake, we all are sinful human beings, we all will make a
mistake, is that punishable? And how do we craft the language
of law to do that?
And let me just--Mr. Solomon, why don't you start and then
we'll let the panelists in order answer that question.
Mr. Solomon. Well, I think the kind of intent and other
factors that you are talking about are what we traditionally
look at in assessing penalties. Traditionally, the Commission
in this area and other areas looks at all of the facts and
circumstances, looks at intent, looks at the seriousness of the
violation.
Mr. Shimkus. You don't feel the language proposed, based
upon your ability, would not affect the--any change, you would
still judge intent and still--this would just give you more of
a penalty aspect?
Mr. Solomon. Right.
Mr. Bozell. Well, Congressman, three points. One was in the
Bono--in the now famous Bono situation. It was not accidental
in the sense that NBC, as I understand it, chose not to use the
bleeper button that night. Plus, once it came out, NBC not only
didn't apologize for it, they defended themselves vigorously
over a period of months saying they had the right to do that.
And I believe if they had simply said oops, we made a mistake,
and we forgot to turn it on, that would be fine.
Now, insofar as the wording is concerned, Congressman, you
are right. And I believe Mr. Corn-Revere is correct when he
says, you know, if you use the Ose bill on the seven dirty
words, the way it is crafted I don't think it will hold water
constitutionally on a per se basis.
On the other hand, I would invite you to look at the legal
definition of the word ``obscenity.'' It is four paragraphs
long. If you look at the Webster's definition of obscenity, it
is one line. If you look at the legal definition of obscenity,
you find that basically it has to have hard-core pornography
and penetration that is visual.
If you look at the Webster's definition, it is abhorrent to
morality or virtue; it has nothing to do with that. I think
sometimes the simple answer is the clear one.
Mr. Corn-Revere. Well, Mr. Bozell is absolutely correct.
And actually just for the record, this may be the only time
those words will be spoken, but he was absolutely correct when
he says that the Ose bill----
Mr. Shimkus. I apologize. I am glad for bringing everyone
together here.
Mr. Corn-Revere. The Ose bill has serious constitutional
problems because it would establish a per se rule. And as you
point out, that is where any use, including Biblical use of
language that appears in that bill, would be subject to an
automatic violation regardless of intent.
But your question goes to the heart of why this is such a
difficult constitutional problem. And that is, once you start
looking at other factors, whether it is intent, serious
literary, artistic, political, scientific merit, or any of the
other factors, then you have a host of variables that makes
this a more complicated puzzle.
That is why the FCC has had such a difficult time with
this. Mr. Bozell mentioned the test for obscenity. But it took
100 years for the courts to refine and develop what became a
three-part test in 1973 to define obscenity. It is not perfect.
But it comes a lot closer than had existed in the past.
The difficulty with the indecency standard is that it lacks
the same level of precision and leaves more to administrative
discretion and more to guesswork on whether or not something
fits within that definition.
Now, Mr. Bozell says that it is up to local community
standards. That is just plain wrong. The FCC has said on
numerous occasions that, unlike the test for obscenity, the
test for indecency is not based on a local community standard.
It is the community standard as defined by whatever five
commissioners happen to be filling those seats at any given
time. They decide what the community standard is for
broadcasting. And based on that, they could make a wide range
of decisions, because the definition is so very broad for what
could possibly be indecent.
Now, in that respect, Justice Kennedy at the Supreme Court
has written that self-assurance is the hallmark of the censor.
And in that case, Mr. Bozell seems to be very, very certain
about what programs we should not be watching on television or
listening to on radio. Just going by the Web site of the
Parents Television Council, for example, they list the top 10
and the worst 10 and the best 10 television shows.
The No. 1 show on the worst 10 is CSI, Crime Scene on CBS,
which just coincidentally is the top-rated show on television.
If the community standard for broadcasting has nothing to do
with people--with what people have chosen to watch, I am not
sure what the community standard may be.
There is also a part of the Web site for Parents Television
Council that calls on people to file complaints with the FCC
over the Victoria's Secret fashion show. Now, say what you will
about that show, you might like it, you might hate it, for
purposes of constitutional analysis it is really the same thing
as Baywatch, although with perhaps better acting.
And so, you know, there is no way in the world under the
current standard that that show can be considered indecent. And
yet if we are to judge community standards by the testimony we
have heard today, television would be a very different place,
contrary to the choices that most television viewers make.
Mr. Bozell. Since this attack came out of nowhere, can I
defend myself?
Mr. Upton. I will give you 30 seconds.
Mr. Bozell. Fine. First of all, we have never suggested
that nobody should watch CSI. That is preposterous, and you
know that.
Second, where Victoria's Secret is concerned, many
organizations complained, people complained from all over the
country. I thought that was our right, first amendment. Thank
you.
Mr. Upton. The gentleman from Maryland--oh, before I
recognize the gentleman from Maryland, I wanted to say, under
unanimous consent, that we will enter the newspaper story from
the Chicago Sun-Times that was referenced earlier.
[The information referred to follows:]
[Friday, January 23, 2004--Chicago Sun-Times, Inc.]
Gangstas Take Over Christian Radio, and No One Complains
By Leslie Baldacci
For at least a month, radio pirates have been broadcasting profane,
violent rap music on Chicago airwaves, using a frequency belonging to
``contemporary Christian'' station WCFL.
The bigger shock is that no one complained.
I came upon the pirate station by accident, scanning the dial while
driving near the elementary school where I teach in Chatham. I nearly
drove into oncoming traffic when I heard FM taken over by ``MF.''
``Someone at that station is going to be in big trouble,'' I
thought, waiting for the song to suddenly be yanked off the air. I was
dying to hear how the embarrassed DJ would talk himself out of such a
gaffe.
But on chugged the verses. And when that ``song'' was over, another
one came on, and then another.
It was riveting radio, especially if you're old enough to remember
when Shaft was ``a bad mother . . .'' and the second half of the
compound word was ``Shut your mouth!''
That first night, I listened from 83rd and Cottage Grove to 42nd
and Lake Park, all through Chatham (home of the former police
superintendent), Hyde Park and Kenwood. It was so crazy and other-
worldly to hear such language on the radio that I started to wonder
whether I was having some weird aural hallucination after a stressful
day at school. So I tuned in again on my way home from my book club,
and there it was! I listened until I lost the signal around 95th and
Halsted.
I listened the next morning, but the signal was weak. But on
Saturday night, driving to the North Side for a party, I caught it
clear as a bell and listened to 50 Cent, Jay-Z and Ludacris rhyme about
their sex lives in graphic detail all along the Dan Ryan Expy. from
87th Street to Cermak Road.
Which means that the thousands of people in other cars driving
through Chicago could have been listening, too. Nice welcome mat for
the folks driving in from the east! Way to set the table for our fair
city! Or a fair adieu for the folks driving out of town: Y'all come
back now, hear?
The material broadcast by the pirates was so raw that any thinking
person who listened would surely doubt his sanity. One (song) was about
a (drug dealer) who was seduced by a (woman) who was working for
another (drug dealer) and while the first (drug dealer) was (having sex
with) the (woman) he happened to roll over just in the nick of time to
see the (woman's) head get blown apart by a bullet shot through a
window, intended for the (first drug dealer). The line about her brains
splattered all over the bed and the walls really stuck with me.
Freddrenna M. Lyle, alderman of the 6th Ward, came upon it the same
way I did: ``scanning'' the dial.
``I couldn't believe it. It's X-rated,'' she said. ``I picked it up
with my 17-year-old niece when we were Christmas shopping. I said 'What
is that? They can't play that!' She said it was an underground station.
All of the kids knew about it.''
I asked my students, who are 10 and 11 years old, if they knew
about the station, if they'd heard it. They had.
``I heard it when I was driving with my mother. She switched the
station,'' said one of my fifth-graders.
I happened to catch the signal one night last week while idling at
a light with a 14-year-old.
``What is this?'' she shrieked.
Lyle said she received not a single complaint. She suspects the
only people who would know of the pirate station would be people like
us, who happened upon it. (And kids. C'mon, who are they going to tell?
Other kids!)
``There don't seem to be any complaints,'' said Suzanne Tetrault of
the FCC's enforcement office in Washington, D.C.
She said in response to a complaint, investigators with electronic
monitoring equipment hunt down the pirate signal. When they find it,
and the people responsible, they take action to shut them down.
Penalties include fines and even criminal prosecution.
Until then, the bombardment of negative, hateful, gangsta images
will likely continue on the South Side airwaves. I hate to think that
any of my students caught in the radio crossfire would take to heart
testimony of hate and genocide from artists operating under the banner
of truth and validation.
It must be doubly confusing when the pirate signal cuts in and out
with the Christian station's promises that ``Your children are safe
here.''
Mr. Upton. Mr. Wynn.
Mr. Wynn. Thank you, Mr. Chairman. Let me begin by saying
that I was pleased to cosponsor the bill that you and the
Ranking Member have put together. I think it does address the
issue.
I would like to ask my colleague, Mr. Rush, if he still
needs the time.
Mr. Rush. No, I don't. Thank you.
Mr. Wynn. Thank you.
Mr. Solomon, if the FCC in fact does reverse the Bureau,
are we now moving into the area of a per se rule with respect
to certain words as is referenced in Mr. Ose's bill?
Mr. Solomon. Well, I think at this point the commissioners
are looking at those issues and focusing on what they plan to
do and what the rationale will be. So it is hard for me to say
what they are going to decide.
Mr. Wynn. Didn't you just say that you anticipated that
they would in fact reverse the Bureau?
Mr. Solomon. The chairman has certainly proposed that.
Mr. Wynn. Let's assume that they did, and you said that
that would be a significant strengthening of the indecency
enforcement. Are you then recommending that we move toward a
per se rule with respect to certain words?
Mr. Solomon. I really can't speak to what rationale or what
rule the Commission is going to adopt in the case, because it
hasn't decided it yet. It is deciding----
Mr. Wynn. I am going to try one more time. Hypothetically,
if they do what you have suggested they ought to do, would that
be the adoption of a per se rule, and would that be the
beginning of a policy of per se rules with respect to indecency
enforcement?
Mr. Solomon. It could be; but it might not be. It would
depend on the theory of what the Commission uses in deciding
the case and what kind of explanation----
Mr. Wynn. Are there any other words that you believe--this
is to quote from your testimony--would represent a significant
strengthening of indecency enforcement?
Mr. Solomon. I guess what I would say at this point--and I
hope this doesn't sound too bureaucratic--but my job is to
follow Commission precedent. Right now the Commission has said
in its precedent that no word is, per se, indecent, and that
isolated use of a particular word is not indecent. To the
extent they overrule the Golden Globe decision and alter or
depart from the precedent that we based it on, I think it is
going to depend how they explain it.
Mr. Wynn. But you recommend overruling the Bureau?
Mr. Solomon. The chairman has recommended overruling it.
Mr. Wynn. Do you recommend overruling the Bureau?
Mr. Solomon. Well, there are rules----
Mr. Wynn. Your testimony seems to think it is a good idea.
Mr. Solomon. It certainly would be a significant
strengthening.
Mr. Wynn. That is fine.
Mr. Bozell made an interesting point, with which I actually
concur to some extent, because I am the father of a 9-year-old,
with regard to innuendo and the Saturday Night Live parody.
Is there a way to get to the innuendo--which kind of goes
to my colleague's question regarding intent--and how far we can
go if we really want to get to that? My personal opinion is
that this type of parody and innuendo is probably much more
dangerous than the use of the quote ``f'' word in a context
that has a nonsexual context. So, how are you proposing that we
get to that issue, Mr. Bozell?
Mr. Bozell. Well, let me make it even more confusing.
Mr. Wynn. I don't need to be more confused. I am trying to
make it clearer.
Mr. Bozell. It is difficult, Congressman. It is what is
worse? Saying the ``f'' word or bleeping the ``f'' word?
Someone who goes--and you know exactly what they are doing on
television.
Mr. Wynn. You mean like a football coach.
Mr. Bozell. Yeah. But when you are doing it at 8 p.m.,
deliberately in a script, and you bleep it, therefore now it is
okay; but every child saw you say the ``f'' word. I mean, is
there--is there intent to be--to do something indecent? I think
so. But it was bleeped.
So, Congressman, I don't know the answer. But I think, you
know, it is like the old definition of pornography: You know it
when you see it. When someone is talking about things that were
discussed in that transcript, you know what the intention was.
Mr. Wynn. I do sympathize with you, in sincerity. But I am
not sure we are moving forward in terms of getting to that
issue of the parody. I mean, quite frankly--and I thought I was
fairly knowledgeable and worldly on the matter--some of the
things that you have said, kids would know what it meant; I
didn't know what it meant.
So, again, is there anything that you are suggesting that
would enable us to get to issues of deliberate sexual and
inappropriate sexual innuendo without compromising the first
amendment?
Mr. Bozell. Senator Lieberman put it best. Would you use
this language at your dinner table with your children? If you
wouldn't, then it is probably going to be indecent.
Mr. Wynn. But the point is we have to make laws for
broadcasters and affiliates, and parodies are a quite common
issue.
And I am going to have to assume that you don't really have
an answer. That is not to find fault with you, but to say that
you acknowledge the difficulty in enforcing parodies.
Mr. Bozell. Absolutely, I do.
Mr. Wynn. That is fine. Would you advocate the censorship
of shock jocks?
Mr. Bozell. Well, you can't say what some shock jocks say,
you can't put that on your license plate on your car, it is
against the law. Why should they be allowed to say it? Why
should they be allowed to say it? Why should--if you had a
situation as you had here in----
Mr. Wynn. So you do advocate the censorship of shock jocks?
Mr. Bozell. I believe there are limits to free speech. And
I believe the Supreme Court has written so.
Mr. Wynn. So how would you propose that we approach that?
Mr. Bozell. Well, a shock jock isn't a shock jock until he
does something indecent.
Mr. Wynn. So we have to ban shock jocks?
Mr. Bozell. No. You fine the stations that have the shock
jocks and they will stop hiring shock jocks.
Mr. Wynn. So you basically want to----
Mr. Bozell. I think you ought to focus on the stations and
the networks as opposed to the individuals.
Mr. Wynn. To get rid of shock jocks. Do you draw any
distinction between the invasive nature of television and
radio?
Mr. Bozell. Not as much as I would a distinction between
television and movie theaters. I think you drive to the movie
theater, but the radio is in your car as well.
Mr. Wynn. Okay. But you do have a lot more latitude to turn
it off or change the channel, would you not agree?
Mr. Bozell. Congressman, the responsibility is--the onus
ought not to be on the owner of the airwaves to change the
channel, it ought to be on those who are borrowing those
channels to honor the wishes of the owners.
Mr. Wynn. What are we going do about that football coach?
This is humorous, obviously. But it also is serious. Because,
you know, Mr. Solomon has just moved us into the realm of per
se indecency, and one guy is Bono, the other guy is an NFL
coach, and they are basically saying the same thing. I think it
is a little problematic.
Mr. Bozell. I think, Congressman, as Congressman Terry said
before, you expect Bono to say what he said. Well, if we have
come to the point in our society where we expect football
coaches to do that, then we ought to have a bleep machine. That
is all you have to do.
Mr. Wynn. Are you in favor of mandatory bleeping?
Mr. Bozell. I think it ought to be a voluntary thing that
the networks do in good faith.
Mr. Wynn. Okay. All right. Thank you.
Mr. Upton. The gentlelady from New Mexico, Mrs. Wilson.
Mrs. Wilson. Thank you, Mr. Chairman, and thank you for
holding this hearing. I think like many others on this
committee, I have got a lot of e-mail and letters about your
indecency ruling, and I am glad that you appear to be pleased
by the FCC chairman's intention to overrule your technical
decision.
And I understand the situation that you are in. But the
nature of the mail I have been getting is frankly also the way
I feel: that it is really hard to rise G-rated kids in an R-
rated world. And while as parents we make choices about where
we take our kids, we don't get in the car and go to movies that
we don't want them to see, or to art exhibits that go beyond
Rodin, we have a technology that is pervasive in our
automobiles and in our homes.
And while we have practices at our home that may limit the
exposure of our children, why should we have to worry what is
on television at 7 o'clock at night on a Sunday? And I don't
think we should have to. I think we should be able as a family,
to be able to watch television and not have to use it as
teaching a lesson of what not to say, and explain why that is
not the thing that we say. And I know we all have first
amendment rights, but we also have responsibilities. And in
this case, because the broadcasters have licenses, there is the
ability to enforce that responsibility.
Mr. Corn-Revere, you talked a little bit about television
and community standards being set in a way--we talked about the
number of people that watch CSI and so forth. Now, we have an
interactive situation here a little bit. TV influences
standards in addition to being influenced by community
standards. And I don't think there is a way--I think we have to
acknowledge that--maybe it is a paradox. It is like standing in
a hall of mirrors where it goes--the light goes backwards and
forwards.
And I am very concerned about the coarsening influence of
television on society. And I also worry, Mr. Bozell, that
unfortunately there are some dinner tables where the language
you and I would not want to hear is used. And if that is the
standard, if we go to the lowest common denominator of don't
say anything--nothing is allowed on television that you
wouldn't say at your own dinner table, unfortunately there are
people who use that language at their dinner table. But I don't
want to have it in my living room. And I think there are a
large number of Americans who don't want to have that as well.
So I appreciate the testimony that we have had here this
morning. And I appreciate your time and attention to these
matters because I was very disappointed in the FCC ruling. And
you may have felt as an enforcement bureau, that somehow you
were constrained in what you could do, but the truth is, I
don't care if it is an adjective or a verb, we shouldn't be
getting--it is absurd to get to that level of splitting hairs
to decide what can be on or off television. And it is also
absurd to try to set up that standard for a station owner who
is trying to figure out what these rules really mean. So I
think this Congress is going to roll this back. I am a
cosponsor of a couple of the bills and resolutions to do so,
and I think the FCC is as well. And I say good on them.
Thank you, Mr. Chairman.
Mr. Upton. Mr. Gonzalez.
Mr. Gonzalez. Thank you very much, Mr. Chairman. My first
observation: My first day here, and this is so much more
interesting than anything in 5 years in Financial Services.
Mr. Upton. I will tell Mr. Oxley you said that.
Mr. Gonzalez. I probably will tell him myself. As you know,
he probably would have rather have been over here the whole
time.
Mr. Upton. Welcome to the big house.
Mr. Gonzalez. I agree with Mr. Dingell that we are probably
going to have to follow up where we have the chairman and
members of the Commission here. But I also wish to indicate
that I know where the chairman is today and some of the
commissioners. They are in my district and they are conducting
a hearing on localism. But I know that they would welcome the
opportunity to be here and testify, and I hope that we will
give them that opportunity soon.
My question really is, Do we have uniform standards? It
seems to me that it is kind of a moving target, case-by-case
evaluation and some criteria. And yet there are suggestions out
there that maybe get the industry involved along with other
representatives, as this Congress may choose, to form some sort
of a task force, come out with some sort of industrywide
standards. And that I think provides certain advantages.
The first one, if you have standards that are adopted that
reflect what the courts also like to see--and that is, what are
the morals and values that are supposed to be reflected in any
regulatory scheme--then it will probably pass constitutional
muster.
And second, in its application it will be fair to the
industry itself; because I do believe that you probably have a
certain application of any given time that may differ, and that
we should not do that in any type of regulatory scheme.
How is the best way to achieve a uniform standard? And that
is the question to all of the witnesses.
Mr. Solomon. I guess one thing I would say is that there is
a standard that the FCC has that has been affirmed by the
courts. I don't know the details of the Clear Channel proposal
from yesterday. I certainly think it is a good idea if
broadcasters work voluntarily to try to adopt and improve on
their own standards, regardless of what the legal standard is.
I also think it is important that we be careful that any
sort of private standard-setting body doesn't lead to or
doesn't start with the premise that the FCC's rules that have
been affirmed by the Court are too confusing and therefore
until broadcasters and others figure out what should replace
our standards, we can't enforce what we have.
I think it is important from our perspective that we have a
standard that. As Chairman Tauzin mentioned, there may be close
cases on the margin, but we have a standard that we have
applied that the courts have upheld.
And, I think, without deciding or prejudging particular
cases, it is hard, for example, in the Clear Channel, Notice of
Apparent Liability that we issued yesterday for a company to
come along and say, we had no clue that this kind of thing
might violate the FCC's rules.
So I think it is useful for companies to focus on voluntary
standards, the NAB Code kind of thing, but it shouldn't be used
as a way to say that the FCC can't enforce what is already
lawful.
Mr. Bozell. Congressman, I would say that the idea I think
is fanciful if it could happen. If it could work, it would be
wonderful. But I believe that pigs would fly and Bono would
stop using the ``f'' word before this happened. Look at the
history. The industry spent years and years talking about a
ratings system which one network, NBC, won't even put an age-
based disclaimer on there as everyone else does, and the
industry continues to violate their own standards that they
came up with, and nobody can do anything about it. Why? Because
they are the ones who regulate their standards.
So I am afraid that any kind of standards on decency
requirements really wouldn't amount to much at this point from
the industry. I would love to be wrong.
Mr. Corn-Revere. I would just say that the search for some
kind of uniform standard has been a difficult matter from the
beginning. And the FCC has been hampered by the fact that the
overall standard for indecency is so very general.
Mr. Solomon is correct that in certain cases you can look
at a particular broadcast and say--it is not plausible to say
that you didn't know that there was difficulty.
The problem comes up when you have those marginal cases,
and they are becoming more and more of them, where the FCC
makes a judgment on something where it perhaps in its first
review of the matter didn't have sufficient merit, literary
merit, artistic merit; and then on reflection, after 2 years,
says, Oh, we were wrong, you can go ahead and broadcast that.
It is a very difficult thing, coming up with a standard
that can survive that kind of scrutiny. And you veer between
the per se approach, which has serious flaws, and then
something that leaves judgment to the level--to the matter of
administrators. There has to be something better than the I-
know-what-you-are-thinking standard that Mr. Bozell mentioned
earlier.
Also, I think it is very dangerous when we start talk about
matters like having a full-time office of the speech police in
the FCC to monitor what goes on over the air. That is not the
system we have. It is not the system envisioned by the first
amendment. And I think that would raise serious problems too.
Mr. Wertz. I concur. The only other concern I might address
would be whatever this committee does, will it stand up to a
court challenge, which unfortunately is likely to be
forthcoming, and hopefully it will.
Again, as a broadcaster, all we are looking for is a return
to clear understanding of what you would like us to do. And by
the way, I believe most of us already are doing just that.
And as for licensees, I would just like to extend one more
thing. XM and Sirius are both satellite broadcasters now,
licensees by the FCC. Now, I would submit from our perspective
that they be held to the same standard. I am not certain under
the current rules they are.
Mr. Gonzalez. Thank you very much.
Mr. Upton. Thank you, Mr. Gonzalez. I have just a couple
more questions. And if members have a couple more, we will
continue. The House is back in session. We don't expect a vote
for a little while.
Mr. Wertz, I am curious to know your sense of our
legislation, H.R. 3717. Do you think that if we are able to
pass this, like we are going to try and do--and I am very
grateful for the Members that have cosponsored this
legislation, the Dear Colleague just hit Members' offices this
morning.
Already, Members yesterday, our first day of votes, were
coming up to me, and we added a number last night. I am told
that I am going to be adding a number of Members today.Chairman
Tauzin has told me that he would like to put this on the fast
track. So we are going to try and move it quickly.
But do you think that if our legislation passes and we are
able to get it to the President's desk--and the administration
has indicated their support for the legislation in a letter
this morning--that in fact it will put a damper and lay a
little better framework and signal to the broadcasters of what
is allowable and what is not, based on what--particularly what
may or may not come from the commissioners as they review the
Enforcement Division's decisions from a couple of months ago?
Mr. Wertz. Absolutely. I believe it will be very
beneficial. I support it. I am not in favor of fines, but then
I am not in favor of the actions that been going on over the
past few years either.
At the same time, I would hope that we would be able to, as
broadcasters, as a couple of Members brought this up, that we
would be able to go back to our suppliers and be able to
negotiate with them on content as well. Because sometimes we
can't change what they provide to us, or they will take it away
and give it to somebody else.
But yes, I am in full support of the bill.
Mr. Upton. Mr. Solomon, in listening to Mr. Bozell's
testimony, he indicated his frustration that the FCC until
yesterday had not gone after--with an enforcement action on a
TV broadcaster. Indicated you all didn't have the personnel to
look into that.
I would like to know what your response is to what he said
in his testimony.
Mr. Solomon. Sure. We have probably about 20 to 25 people
who work a substantial portion of their time in indecency. And
I can't say off the top of my head whether any of them work 100
percent, as opposed to 90 or 95 percent, but there is a
significant staff that spends a lot of time on indecency,
including myself. I am responsible for all enforcement at the
FCC, or virtually all enforcement. And I probably spend, it
varies, but 25 percent of my time, overall, on indecency. So it
is a very high priority for our staff.
In terms of TV, I think there has been an evolution in the
kinds of complaints that we are getting. In 2003, for example,
we received about 250,000 complaints. This is the first year
where a majority of the complaints are about television
programs as opposed to radio. So I think there is a shift.
Traditionally our enforcement focused on radio, because
that is where the complaints were. To give you an example from
just a couple of years ago, in 2000, we had about 111
complaints. About 85 of them were about radio. That has
changed. Now we have many more programs from TV that are
challenged.
So I think you probably will be more likely to see more
attention to TV in the future.
Mr. Upton. What would you say to his statement in his
testimony--and I believe Mr. Shimkus might have referenced it
in his question as well--with regard to e-mails that may have
been automatically blocked from going to the FCC? Is that
accurate or not?
Mr. Solomon. I don't really know the details. I know that
sometimes when there are thousands coming in at once, there are
questions about--and I am going beyond my expertise--the
interoperability of the Web site that is sending them, et
cetera. But I am sure that the people, particularly in our
Consumer and Governmental Affairs Bureau that receive the e-
mails, would be happy to work with his organization to make
sure there aren't technical problems causing their complaints
not to come through to us.
Mr. Upton. Mr. Corn-Revere, as I began to prepare for this
hearing--and staff provided a very good book to look through a
number of the situations. The title here that they Scotch-taped
is ``Broadcast Indecency Briefing Materials.''
I went through the entire book as I came back from Michigan
yesterday, which is a long experience. Mr. Wertz and I actually
left early in the morning and were fortunate to get here
yesterday. I would say in fact when we landed, I thought we had
gone back to Detroit because of the snow and the ice that was
at the runway.
And I finished the book, and I put it into the airline
seat, into the pocket in front of me. And as I grabbed my coat
to run to my car in the parking lot, I neglected to take it
with me. And I didn't discover that I didn't have it until I
got to my car. And I knew that I could not go back through
security to get the book. And when I called Northwest--that is
my airline that I flew--to see how I could retrieve this book,
they sort of laughed, because they in fact had found the book
and were a little embarrassed. I don't know if they actually
read some of the transcripts that were in there on the
violations, but it was pretty serious stuff.
And I know as we talk about community standards, you know,
I am sure that you have looked at some of their material, too,
in terms of preparing for today, whether it was the Opie and
Anthony Show or the Elliot in the Morning Show and some of the
things that are in here.
I don't know of anyone that would disagree with the FCC's
enforcement decision. Maybe they would complain about the fine
because it was too small; but I think anyone would say yes,
this is more than some of the things that were discussed here.
I mean the--I mean, as you looked at it, I think you would
agree that this stuff is not appropriate for over-the-air
broadcast by TV or radio with the sound effects and other
things; is that not true? And I know you are a first amendment
scholar. But I can't imagine that anyone would disagree with
that.
Mr. Corn-Revere. Well, I am also the father of four
children, and I deal with these issues on a daily basis at home
in a whole another capacity. So I take your point exactly.
Mr. Upton. But you looked at it?
Mr. Corn-Revere. Sure. Sure I have. And I think you read
some of that stuff and you wonder what in the world was going
on in the minds of the people who chose to broadcast this
stuff. The point that I am trying to make is that it is
dangerous to try and define a policy and legal standard by the
worst examples you can find.
Because if you draft a poor standard, then you also catch
up in that net examples that should never have been sanctioned
by the government. And there are a growing number of examples
of the FCC enforcement policy that fall in that category
because of the imprecision of the legal test.
And there is one just technical point----
Mr. Upton. You would not disagree with some of the stuff
here, that the FCC didn't--you are not saying----
Mr. Corn-Revere. I am not trying to endorse any particular
broadcast at all.
Mr. Upton. You have read it. Would you disagree that they
were wrong in announcing a fine on the Opie and Anthony Show or
the Elliot in the Morning? Did you look at the Elliot in the
Morning transcript?
Mr. Corn-Revere. I do not recall that example from just
your describing it. I would have to go back.
Mr. Upton. I can remember when we had hearings in this
subcommittee, last year or the year before, and we had the
recording industry here, and I guess it was in the last
Congress because it was Mr. Largent, Steve Largent, Barbara
Cubin, and they asked Hillary Rosen, then the Director of the
Recording Industry Association, and they asked her if she could
read some of the lyrics that had not been marked for parents,
and she could not read them, and, you know, I could not, you
know, possibly read some of this stuff that was in this in any
type of public forum. You know, it was difficult to get through
it yesterday as I tried to screen it from the fellow that was
sitting next to me on the plane coming back.
Mr. Corn-Revere. And you may have noticed, Mr. Chairman, in
drafting my testimony I was careful to avoid using language and
examples from cases that are constitutionally protected because
those words do appear in those cases.
The technical point I wanted to reach was Mr. Bozell's
point made earlier that the FCC in his words had never, never
fined a television station. It was a point we had discussed
before and in fact I corrected him on the Senate side. In fact,
the FCC had acted in the case of complaints against the
television stations in the past.
In 1988, it did so in a station, KZKC, in Kansas City. In
1997 it fined a station in Roanoke, Virginia, but this gets
back to the point that you were addressing about using those
worst examples to define the field, because it has gone after
television and has investigated a number of types of programs
in the early 1990's and also investigated a public broadcast
station for the transmission of a miniseries called The Singing
Detective, which, incidentally, had won a Peabody Award.
There were a few brief scenes which caused difficulty to
the Commission. I know because I was a staff member at the time
and was looking at this particular example.
I think if you look at this under a rational first
amendment test you could not possibly find that the program was
indecent, that it lacked sufficient merit to be broadcast, and
yet because of the investigation this program has never
appeared on public television again or commercial television
for that matter in the decades of investigation. So the
standards you use and the power you bring to bear from the FCC
is really an awesome power and limited under the first
amendment.
Even when you can point to examples that you think are
absolutely clear, the standard is what is important?
Mr. Upton. Well, that is exactly why so many Members have
co-sponsored this legislation, because they have seen some of
the stuff that has been fined and said: You know, it is still
not stopping it.
Again, some of these examples that are in here are multiple
occurrences on different days from the same station, and
sometimes they have received the maximum fine and yet they come
at it again, and that is what we are trying to stop.
Mr. Bilirakis has additional questions.
Mr. Bilirakis. Mr. Corn-Revere, I cannot help, as you were
telling us, that you have four children.
Do you oftentimes or do you sometimes find yourself turning
off the television or basically disallowing them from watching
a particular station?
Mr. Corn-Revere. Oh, sure, I do, as a parent. I just do not
want Mr. Bozell as my parent.
Mr. Bilirakis. Do they use the defense of the first
amendment when you do that?
Mr. Corn-Revere. No, because they know I am the dictator in
the household.
Mr. Bilirakis. You know, maybe I am a little hard-headed
and I support the legislation and it is going to do some good,
and yet, Mr. Corn-Revere, there is certainly the power, the FCC
is there, and it is preventing a lot of these bad things from
taking place, not all of them but some of them.
We know there is going to be all sorts of outpouring, words
and phrases additional, that are coming into the picture, all
that sort of thing, and I keep wondering if maybe we should not
place more authority in the hands of the local licensee to
determine, because they are closer to the public; you know, if
I contact my local broadcaster, if you will, they are more
likely to listen to me than trying to contact the FCC, which I
guess is already evidence that they seem to be ignoring the
inputs there and what not.
Mr. Corn-Revere. I do not mean for any of my comments to
address or to diminish the level of editorial discretion that
the local licensee should have.
Mr. Bilirakis. Well, apparently, it is diminished and from
a real world standpoint, but the policy says clearly: Broadcast
licensees must assume responsibility for all material which is
broadcast from their facilities. So they are being fined. Some
of them are being fined, right, Mr. Solomon, the local people?
Mr. Solomon. If you look at the statement.
Mr. Bilirakis. How many of those cases do they come in with
a defense, explanation, rationale, whatever you want to call
it, to the effect that, well, my, the network has forced me to
put this on the air, even though I do not want to do it?
Mr. Solomon. I do not recall any such instances in our
cases.
Mr. Bilirakis. Anybody know anything different, different
in that regard?
I am told by some of these licensees, these broadcasters,
that that is a big problem.
Mr. Solomon. I do know there is a broader proceeding going
on that the Commission is addressing, and I am answering it
from my perspective in enforcement cases.
Mr. Bilirakis. Yes, I realize your responsibility is
enforcement.
Yes, and I realize your responsibility is enforcement.
Before I go on, Mr. Bozell, yes?
Mr. Bozell. There is an example, but there are others, and
we have heard them anecdotally, but there is a written example
I would be happy to give you.
Last year on Fox there was a program, Keen Eddie, which
features a prostitute having sex with a horse.
Mr. Bilirakis. Oh, yes, sir.
Mr. Bozell. And that was over the airwaves.
Or attempting to have sex, I should say. The Fox affiliate
in Kansas city said he was forced to run that and that was not
his responsibility.
Mr. Bilirakis. Yes, if you could share that with us, I
would appreciate that.
With unanimous consent, I would ask it be made part of the
record.
Mr. Upton. Without objection.
[The information referred to follows:]
FOX 4
WDAF-TV, Kansas City, MO
July 25, 2003
Mr. Tim Maupin
Chapter Director, Kansas City Metro Chapter
Parents Television Council
P.O. Box 22641
Kansas City, MO 64113
Dear Mr. Maupin,
We received your letter dated June 30, 2003 regarding the content
of the Keen Eddie show that aired on June 10, 2003, at 8pm.
We forwarded your letter to the FOX Network. The Network, not WDAF
TV4, decides what shows go on the air for the FOX Owned and Operated
Television stations.
Sincerely,
Cheryl McDonald
Vice President/General Manager
WDAF-TV/FOX 4
Mr. Bilirakis. Yes, sir.
Well, I guess I am the only one. It may not be a good idea,
I do not know. Nobody has really followed up on what my
emphasis has been here.
Are they not taking away or belittling what the chairman
and Mr. Markey and what the most of the rest of us who have co-
sponsored legislation want to do; but I think we are also
coming to a consensus that there are going to continue to be
problems, because that in itself is not going to cover
everything that may come out of the woodwork.
Mr. Bozell. Congressman, may I make a good point here?
Mr. Bilirakis. Yeah.
Mr. Bozell. You do not want to come in with this with a
rifle and do it so fine-tuned that you lose the spirit of what
you are trying to do. According to the letter of the law, not a
single thing we discussed today is obscene, when everyone in
this room knows that everything we have been discussing is
having to do with obscenities. Yet the way the law is written
none of it is obscene.
Mr. Bilirakis. If the local licensee were not forced,
basically, in order to stay in business, to go along with the
contracts by the networks, which would basically place them in
the fear of maybe losing their, you know, affiliation, if they
did not go along with it, could that take care of some of the
problem?
Mr. Bozell. I think, yes, because at that point you have
got a community standard.
Mr. Bilirakis. Right.
Mr. Bozell. You have got the community which would be able
to voice itself with the station and the station could in turn
react. I think it would be a positive influence.
Mr. Bilirakis. Mr. Corn-Revere.
Mr. Corn-Revere. Certainly, anything that increases
licensees' editorial discretion.
Mr. Bilirakis. Mr. Wertz, I think you have already
indicated you would like to be able to have that type of
freedom, if you will.
Mr. Wertz. We actually had a case that addresses directly
what you are talking about. We were affiliated with the
network. A sports show was on an afternoon drive of one of our
stations, and this was the Super Bowl in San Diego. The talent
had a prostitute on, talked about all the different people that
she had had at San Diego and not specific acts per se but
pretty close, and we ended our relationship with the network
over it because they refused to back down, and we wound up with
what some people could consider--and I among them--a lesser
network at that moment, but we did it based on our principles,
that that just did not play in Kalamazoo.
Mr. Bilirakis. Well, I certainly commend you for that.
All right, thank you very much.
Thanks, Mr. Chairman.
Mr. Upton. Mr. Wertz, I want you to know that Mr. Bilirakis
is also a Cubs fan.
Mr. Wertz. Yes, they were very good for us this past fall.
Mr. Upton. So is Mr. Engel when he does not have to root
for the Mets or the Yankees, and I would just acknowledge for
those members who were not able to be present today I would ask
unanimous consent that all members of the subcommittee have an
opportunity to submit an opening statement and in their
absence, Mr. Engel, I address you.
Mr. Engel. I am not going to ask any questions, Mr.
Chairman. I just want to ask unanimous consent to put in the
record, but I want to say I admire Bono for the good work he
has done to highlight poverty, hunger and AIDS in Africa, he is
a very talented musician, he has shown himself to be bright and
capable, but he should know better than to use curse words on
national television, and I also just want to say that I am very
encouraged to learn that the broadcast networks are adopting
the 7-second delay or longer when showing a live program. I
think that is a good step, and I understand members of the
industry are calling for an industrywide effort to design and
adopt indecency guidelines for all broadcasters, and I think
that is good too.
I have read the testimony. I found it fascinating that Mr.
Wertz pointed out that in the 1950's the cast of I love Lucy
could never use the word ``pregnant'' but only words such as
expectant. I am dating myself, that is my all time favorite
program, but I commend you, Mr. Chairman, for holding this
hearing and I know that we on this committee take this very,
very seriously and are going to be doing everything we can to
come out with an acceptable way of dealing with this problem,
and again I ask unanimous consent for my testimony, and I yield
back my time.
[The prepared statement of Hon. Eliot Engel follows:]
Prepared Statement of Hon. Eliot Engel, a Representative in Congress
from the State of New York
Thank you Mr. Chairman:
When my staff told me about this hearing and the reasons behind it,
I really started to think. I thought about the impact that popular
figures can have on our children. I thought about the fact that what
popular figures say and do can sometimes have an extraordinary impact
on our children. Now, there are moments when I delude myself into
believing that I am the biggest influence on my children. And, I know
that in fact I certainly am an important influence. But, between the
media and peer pressure, it isn't being a kid today. It's not easy
being a parent either.
I, for one, admire Bono for the good work he has done to highlight
poverty, hunger and AIDS in Africa. He is also a very talented
musician. He's shown himself to be a bright and capable man. So he
should know better than to use curse words on national television.
I am encouraged to learn that the broadcast networks are adopting a
7 second delay or longer when showing live programming. I also
understand that members in the industry are calling for an industry
wide effort to design and adopt indecency guidelines for all
broadcasters--radio and television. These are two strong steps that
industry should and can take.
I also want to point out that I believe that the violence on
television seems to get a greater ``pass'' than sexual content. We seem
to tolerate violence more than we do sexual content. This really
disturbs me.
I am very aware that we must tread lightly. The First Amendment's
guarantee of freedom of speech is vital to our democracy. People are
going to have differing views on many issues. For example, as I said, I
object to the violence on televison. And I know that Parents Television
Council objects too. I appreciate that PTC has done research to show
the rate of violence our children are exposed to.
However, Mr. Bozell's other organization, the Media Research
Center, has also consistently campaigned against what he says is the
media's ``attempt to legitimize homosexuality.'' I disagree 100
percent. I have gay friends. They visit my home and eat at my table
with my children. I want my children to know that being gay is ok, if
that is what you are. I want them to know that gay and lesbian people
hold jobs, pay taxes, and have families too.
So I am conscious that there will always be disagreements as to
what is appropriate. As is pointed out in Mr. Wertz's testimony--that
in the 1950's, the cast of ``I Love Lucy'' could not use the word
pregnant--but only words like expecting. I can't imagine there is a
person in this room who finds the word pregnant offensive. This just
goes to show that our standards--our ``contemporary community
standards''--are always changing and we should be loathe to try and set
standards for 2040 in 2004.
Who knows? In 2040--calling someone a Luddite could be considered
very offensive!
Mr. Chairman, the guarantee of freedom of speech is a powerful tool
for us to use to insure that all views have an opportunity to be
expressed. But, it can also mean that people will hear and see things
they don't like or agree with or like.
It isn't an easy balance.
But, then again, Democracy should not be easy.
I yield back.
Mr. Upton. Without objection, I recognize the gentleman
from Texas for questions, Mr. Green.
Mr. Green. Mr. Chairman, I understand that a lot of the
questions I was going to ask concern about I think we do need
to have some guidelines and I think most of us philosophically
would like the industry to put it together if we could, and I
think, as Congress, maybe to satisfy the Justice Department, we
might need to be more active in it; ultimately some type of
statute, but again I am glad that that is what the testimony
has shown, and again, from what I understand, the questions
from both my Republican and Democratic colleagues, so I look
forward to moving along and seeing how we can deal with some of
the issues not only on this legislation but also on the major
issue of obscenity on the airwaves.
Thank you.
Mr. Upton. Thank you.
I want to reiterate my thanks to you as well for being a
cosponsor of the legislation, so with that our time is
concluded. I appreciate very much the testimony by all four of
you. We look forward to your further input for sure as we look
at this legislative process.
God bless.
[Whereupon, at 1:27 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows:]
Prepared Statement of Frank Wright, President, National Religious
Broadcasters
My name is Frank Wright and I serve as president of the National
Religious Broadcasters, the largest association of Christian
communicators in the world. My written testimony is supplied on behalf
of our more than 1500 member organizations to encourage Congress to
affirmatively address the rampant and growing problem of indecent
speech on the airwaves.
At the outset let me be clear that as the head of an association
representing broadcasters, I am keenly aware of the concerns relating
to censorship. Since the heart of our members' mission is to share the
life-changing Gospel of Jesus Christ, we know that the censorship sword
cuts both ways. When any one interest group can determine what is
appropriate for the populace at large, the very essence of democracy
and freedom in our nation is at risk.
Having said that, it is important to note that our First Amendment
rights to free speech have never been absolute. One cannot, for
example, shout ``Fire!'' in a crowded theater because of the potential
risk of injury or loss of life from an ensuing panic. One cannot commit
treason by communicating important national security information to
hostile nations and afterward claim First Amendment freedoms. Neither
can one commit libel or slander and justify such damaging
communications by claiming constitutional protection.
Regarding matters of indecency, the United States Supreme Court has
also carved out an exception to First Amendment concerns because of the
very real threat to the welfare of our nation's children. For this
reason, while we must tread very lightly on this subject, there are
certain standards respecting what children should not have to hear that
we as an entire people hold in common, and which the United States
Supreme Court has affirmed as constitutional. It is in this light that
I submit my testimony to the subcommittee.
I. BACKGROUND: INDECENCY DEFINED.
Congress gave the FCC the authority to police the airwaves and
uphold community standards. According to Title 18, Section 1464, of the
United States Code, ``any obscene, indecent or profane language'' is
prohibited for mass communication via radio.<SUP>1</SUP> Also, Title
47, Section 73.3999, of the Code of Federal Regulations states, ``no
licensee of a radio or television broadcast station shall broadcast on
any day between 6 a.m. and 10 p.m. any material which is indecent.''
<SUP>2</SUP>
---------------------------------------------------------------------------
\1\ 18 U.S.C. 1464.
\2\ 47 C.F.R. 73.3999.
---------------------------------------------------------------------------
In 1975, the FCC found that ``obnoxious, gutter language . . .
[has] no place on radio when children are in the audience.''
<SUP>3</SUP> The Commission went on to define indecency as
---------------------------------------------------------------------------
\3\ In the Matter of a Citizen's Complaint against Pacifica
Foundation, 32 RR 2d 1331, 1336, 11 (1975).
---------------------------------------------------------------------------
``. . . intimately connected with the exposure of children to
language that describes [or depicts], in terms patently
offensive [sic] as measured by contemporary community standards
for the broadcast medium, sexual or excretory activities and
organs, at times of the day when there is a reasonable risk
that children may be in the audience.'' <SUP>4</SUP>
---------------------------------------------------------------------------
\4\ In the Matter of Pacifica Foundation, 32 RR 2d at 1336, 11.
---------------------------------------------------------------------------
Unfortunately, after establishing an important and helpful standard
and making a commitment to protect the welfare of innocent children,
the FCC almost immediately began to back away from its own standard. In
1976, one year later, the Commission began backpedaling from its own
standard to cater to broadcasters, stating it would be ``inequitable
for us to hold a licensee responsible for indecent language'' during
live broadcasts.<SUP>5</SUP>
---------------------------------------------------------------------------
\5\ Memorandum Opinion and Order, In the Matter of a Petition for
Clarification or Reconsideration of Pacifica Foundation, 36 RR 2d 1008
(1976).
---------------------------------------------------------------------------
Since that time, the FCC has eroded its own standard by adding yet
more criteria to test whether broadcasts cross the threshold of
indecency:
``(1) the explicitness or graphic nature of the description or
depiction of sexual or excretory organs or activities; (2)
whether the material dwells on or repeats at length
descriptions of sexual or excretory organs or activities; (3)
whether the material appears to pander or is used to titillate,
or whether the material appears to have been presented for its
shock value.'' (emphasis in original) <SUP>6</SUP>
---------------------------------------------------------------------------
\6\ See Policy Statement, In the Matter of Industry Guidance on the
Commission's Case Law Interpreting 1465 and Enforcement Policies
Regarding Broadcast Indecency, 16 FCC Rcd 7999 (2001).
---------------------------------------------------------------------------
By making the definition of indecency sound more like obscenity,
the Commission has set the indecency bar unnecessarily high, making
infractions more difficult to prove and thus more difficult to punish.
II. INDECENCY COARSENS SOCIETY AND TEACHES CHILDREN THAT MORALITY IS
IRRELEVANT TO WHAT THEY SAY.
Indecency standards are worth enforcing because publicly
broadcasting such words when there are children likely in the audience
dramatically coarsens our society. Permitting indecent speech on the
airwaves teaches children that there are no limits on improper speech.
It desensitizes the culture to what is detrimental and unacceptable. As
a result, we have confused children, told they cannot say certain words
at school and other places, only to hear them repeated on the radio or
television.
When families cannot sit down to watch a program together during
the so-called ``Family Hour'' without hearing indecencies, we know
there is a problem with our broadcasting standards. If the FCC were
serious about enforcing those standards, then we wouldn't have such a
problem. Some have even suggested that the continual drone of profanity
on our airwaves can also lead to a reduction of civility in society,
leading to violence and the loss of moral values.<SUP>7</SUP> As
newspapers daily document our culture's violent crimes and lack of
morality, we can see that there is at least a correlation between
indecent speech and incivility.
---------------------------------------------------------------------------
\7\ Parents Television Council, ``The Blue Tube: Foul Language on
Prime Time Network TV,'' (September 15, 2003), http://
www.parentstv.org/PTC/publications/reports/stateindustrylanguage/
main.asp.
---------------------------------------------------------------------------
C.S. Lewis, the Christian philosopher, stated that profanity is
degrading to us as people because it describes our actions in
animalistic terms. Our culture's ideals should be encapsulated in our
art (e.g., film, radio, TV, Internet, etc.); our art ought not reduce
us to less than we are.
Part of childrearing involves teaching children what is acceptable
and what is not. If we cannot consistently teach them what they should
or should not say, then how will we teach them what they should or
should not do?
III. THE FCC ALREADY HAS A CONSTITUTIONAL STANDARD FOR DETERMINING
INDECENT SPEECH.
On October 30, 1973, a New York radio station owned by Pacifica
Foundation broadcast comedian George Carlin's previously recorded
monologue ``Filthy Words'' at approximately 2:00 p.m. A father and his
young son heard the broadcast and filed a complaint. On February 21,
1975, the FCC ruled administrative sanctions could be imposed on
Pacifica. On July 3, 1978, the United States Supreme Court upheld the
FCC, in part, because of the nature of the medium involved.
First, the Court found in FCC v. Pacifica Foundation that
broadcasting has ``a uniquely pervasive presence'' in modern-day life.
Since it found Americans have a right to privacy within their own
homes, the content of the broadcast medium ought to be controlled, in
spite of the potential for First Amendment concerns. If someone were to
miss content warnings at the beginning of a program, he or she could
unwittingly tune in and hear something they would ordinarily not have
willingly brought into their home.<SUP>8</SUP>
---------------------------------------------------------------------------
\8\ FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
---------------------------------------------------------------------------
Second, the Court determined that broadcast medium is ``uniquely
accessible to children, even those too young to read.'' Since children
might easily hear indecency on the airwaves during the afternoon (and a
young boy did in the instance of the Pacifica case), the Court took
special notice.<SUP>9</SUP>
---------------------------------------------------------------------------
\9\ Ibid.
---------------------------------------------------------------------------
Since the FCC's 1975 policy was declared constitutional, the
Commission ought to state emphatically in its rulings that Americans
have a right to be free from indecency in their homes, when children
may be in the audience.
IV. THE FCC'S RETREAT FROM ITS OWN STANDARD TELLS BROADCASTERS THAT
THEY CAN SAY ANYTHING ON THE AIR.
Since the FCC has not consistently followed its own policy,
broadcasters will continue to push the envelope to boost ratings. This
has prompted FCC Commissioner Michael Copps to frequently describe
broadcasters' actions as a ``race to the bottom.'' <SUP>10</SUP>
---------------------------------------------------------------------------
\10\ See Separate Statement of Michael J. Copps, Dissenting, In the
Matter of Infinity Broadcasting Operations Inc., Licensee of Station
WKRK-FM, Detroit, Michigan, Notice of Apparent Liability for
Forfeiture, File No. EB-02-IH-0109, (December 8, 2003), http://
hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-302A5.html. See
Separate Statement of Michael J. Copps, Dissenting, In the Matter of
Infinity Broadcasting Operations, Inc.; Infinity Radio Operations,
Inc.; Infinity Radio Subsidiary Operations, Inc.; Infinity Broadcasting
Corporation of Dallas; Infinity Broadcasting Corporation of Washington,
D.C.; Infinity Holdings Corporation of Orlando; Hemisphere Broadcasting
Corporation, Notice of Apparent Violation for Forfeiture, EB-02-IH-
0685, (October 2, 2003), http://www.fcc.gov/eb/Orders/2003/FCC-03-
234A1.html.
---------------------------------------------------------------------------
In just four years, from 1998 to 2002, profanity increased on
nearly all television networks during essentially all of the prime time
viewing hours. During the Family Hour, incidents of indecent and
obscene speech rose by 94.8%, and in the 9:00 p.m. time slot by 109.1%.
Interestingly, the 10:00 p.m. hour, when small children would be least
likely to watch, reported the smallest increase in foul
language,<SUP>11</SUP> possibly because that timeslot's standards had
already fallen so low.
---------------------------------------------------------------------------
\11\ Parents Television Council, ``The Blue Tube.''
---------------------------------------------------------------------------
Within the past two years, the New York radio program ``Opie &
Anthony'' broadcasted reports describing sexual acts performed in or
near St. Patrick's Cathedral. In January 2003, NBC affiliates broadcast
the f-word unbleeped during the Family Hour. Then just in December, the
f-word aired again during a live prime time awards broadcast.
Unless the FCC resolutely pursues indecency and levies punishments
to discourage it, broadcasters will feel emboldened to slide even
further into the gutter. The current fine structure, levied by the FCC,
is treated simply as a cost of doing business. The fines are not viewed
as punitive actions, but merely as indecency-licensing fees.
FCC Commissioner Copps has frequently dissented from FCC
disciplinary rulings involving monetary forfeitures by saying that they
do not go far enough. He has recommended holding hearings on revoking
licenses from broadcasters for consistent and egregious
violations.<SUP>12</SUP>
---------------------------------------------------------------------------
\12\ See Copps Dissenting Statement, Re: Infinity Broadcasting
Operations, Inc., Notice of Apparent Liability for Forfeiture, File No.
EB-02-IH-0109, (December 8, 2003), http://hraunfoss.fcc.gov/
edocs_public/attachmatch/FCC-03-302A5.html.
---------------------------------------------------------------------------
There is no standing still. The current level of indecency on the
airwaves will not stay the same but will increase, absent consistent
enforcement by the FCC.
V. THE FCC MUST RETURN TO TOUGHER STANDARDS AND ASSERT ITS ROLE AS
DEFENDER OF THE PUBLIC INTEREST.
In order to prevent the downward slide in what is acceptable over
the airwaves, the FCC must return to the standard it established--the
Pacifica standard. By so doing, it can take its rightful place as the
defender of the public interest.
Commissioner Copps has repeatedly lamented that the agency has done
little to counteract indecency on radio and television.<SUP>13</SUP> I
am encouraged that numerous Members of Congress over the past few
months have condemned the FCC's ruling on last year's NBC Family Hour
broadcast of the Golden Globe Awards program, in which musician Bono
used the f-word twice on national television.<SUP>14</SUP> Last
December, NRB worked with the other chamber to write language for S.
Res. 283, which was adopted by the full Senate on December 9th. That
Sense of the Senate Resolution called on the FCC to ``return to
vigorously and expeditiously enforcing its own United States Supreme
Court-approved standard for indecency in broadcast media.''
---------------------------------------------------------------------------
\13\ Ibid.
\14\ Larry Wheeler, ``Congressman joins attack on agency's f-word
ruling,'' Gannett News Service, November 27, 2003; Associated Press,
``Bill would ban some swear words from radio, TV,'' December 16, 2003.
---------------------------------------------------------------------------
Last week, it appears that FCC Chairman Michael Powell bowed to
congressional pressure, and public outcry, when he abruptly changed
course and recommended that the FCC commissioners reverse the agency's
Enforcement Bureau's Golden Globe decision.<SUP>15</SUP> He also called
on Congress to increase fines tenfold for future indecency
violations.<SUP>16</SUP> In quick response, the Chairman of this
subcommittee, Representative Fred Upton, introduced H.R. 3717, the
Broadcast Decency Enforcement Act of 2004, to codify that increase.
---------------------------------------------------------------------------
\15\ Jonathan D. Salant, ``FCC Chairman wants to overturn decision
on expletive aired in NBC broadcast,'' Associated Press, January 14,
2004.
\16\ Jonathan D. Salant, ``FCC head wants bigger fines for
profanity,'' Associated Press, January 15, 2004.
---------------------------------------------------------------------------
Increasing fines is a critical first step. Yet we also submit that
the airwaves will not ultimately be transformed until the FCC changes
the way it thinks about enforcement. The Commission should increase
fines and return to the Pacifica standard if the airwaves are to meet a
higher content standard and protect our children. In 1975 when the
Commission took the stand, it didn't know for certain that the Court
would uphold Pacifica. When it did, the high court gave the FCC a firm
place to stand. Since then, by the FCC's own admission, ``The federal
courts consistently have upheld Congress' authority to regulate the
broadcast of indecent speech, as well as the Commission's
interpretation and implementation of the governing statute.''
<SUP>17</SUP> So let us do both.
---------------------------------------------------------------------------
\17\ In the Matter of Complaints Against Various Licensees
Regarding Their Airing of the ``Golden Globe Awards'' Program, EB-03-
IH-0110, (October 3, 2003), http://www.fcc.gov/eb/Orders/2003/DA-03-
3045A1.html.
---------------------------------------------------------------------------
The FCC appears reluctant to assert their authority, not wanting to
take any action until prompted by Congress. If that is what it takes,
then so be it. In the words of Commissioner Copps,``[t]he time has come
for us to send a message that we are serious about enforcing the
indecency laws of our country and that we will be especially vigilant
about the actions of repeat offenders.'' <SUP>18</SUP> What is needed
here more than any other single thing is bold leadership. That is why
we applaud Representative Upton for the important first-step of
introducing legislation to increase fines, and for holding this hearing
to draw attention to this critical issue. We also applaud the actions
of other subcommittee members, like Representative Pickering, who has
introduced a House resolution that is very similar to the one passed by
the Senate.
---------------------------------------------------------------------------
\18\ See Copps Dissenting Statement Re: Infinity Broadcasting
Operations, Inc.; Infinity Radio Operations, Inc; Infinity Radio
Subsidiary Operations, Inc.; Infinity Broadcasting Corporation of
Dallas; Infinity Broadcasting Corporation of Washington, D.C.; Infinity
Holdings Corporation of Orlando; Hemisphere Broadcasting Corporation,
Notice of Apparent Violation for Forfeiture, EB-02-IH-0685 (October 2,
2003), http://www.fcc.gov/eb/Orders/2003/FCC-03-234A1.html.
---------------------------------------------------------------------------
Overall, there is a sense of agreement in both houses on this
issue: indecency on the airwaves is unacceptable. The time is right to
hold the FCC to a higher standard of enforcement. The over 1500
organizations represented by the National Religious Broadcasters thank
Representative Upton for holding this hearing, and we encourage the
subcommittee to look into this matter further and exert the kind of
bold leadership needed at this critical juncture. If the FCC will not
willingly enforce their own constitutionally-approved indecency
standard, then perhaps Congress needs to statutorily require them to do
so.
______
U.S. House of Representatives
Committee on Energy and Commerce
January 27, 2004
Mr. Alex Wallau
President
ABC Television Network
47 West 66th Street
New York, New York 10023
Dear Mr. Wallau: As you may be aware, during recent live broadcasts
on the NBC and FOX television networks, use of language that most
Americans would consider indecent, profane, or both was broadcast
unedited to millions of American homes. I am referring to NBC's live
broadcast of the Golden Globe Awards on January 19, 2003, and to FOX's
live broadcast of the 2003 Billboard Music Awards on December 10, 2003.
Both of these broadcasts occurred during a viewing period in which the
Federal Communications Commission (FCC) has determined that children
are likely to be watching television.
Since that time, the FCC has been asked to determine whether the
NBC and FOX broadcasts were indecent, as a matter of law. In the case
of the Golden Globe Awards, the FCC has determined that the broadcast
was not indecent, and the agency is still investigating complaints
related to the FOX broadcast. However, in my mind, whether the remarks
in question fall within the FCC's narrow reading of the definition of
indecency is not the core issue. No matter how the FCC rules on the
pending complaints, a more important question is how the FOX and NBC
television networks permitted such objectionable language to be
broadcast to millions of American homes.
Though neither of these broadcasts involved the ABC network, I
would still appreciate answers to the following questions in order to
better inform the Congress as to industry practices:
1. Does the ABC Television Network believe that it is acceptable to
transmit programming--live or otherwise--that contains the ``f
word'' or similarly objectionable language? Does the network
believe that it has a responsibility to its viewers to prevent
such broadcasts?
2. What preventive mechanisms and procedures does ABC presently have in
place to ensure that obscene, indecent, or otherwise
objectionable language is not transmitted to ABC broadcast
stations?
3. Legislation has been introduced in the House, H.R. 3717, which would
increase by ten-fold the monetary penalty that the FCC can
impose upon licensees that broadcast programming which contains
obscene, indecent, or profane content. Do you support such
legislation? If so, why? If not, why not?
4. The FCC has recently indicated that it may begin to impose monetary
penalties per utterance rather than per broadcast program upon
licensees that broadcast obscene, indecent, or profane content.
Do you support such a change in the agency's enforcement
policy? If so, why? If not, why not?
5. The FCC has also recently indicated that, for certain licensees that
repeatedly violate its indecency rules, it may begin to seek
the revocation of the repeat offenders licenses rather than
simply continue to impose fines. Do you support such a change
in enforcement policy? If so, why? If not, why not?
As you may be aware, the Subcommittee on Telecommunications and the
Internet plans to conduct a hearing on the subject of broadcast
indecency tomorrow, January 28, 2004. I would appreciate if you could
respond to this letter on or before Tuesday, February 3, 2004, and I
will ask that your answers be included in the hearing record. If you
have any questions, please contact me, or have your staff contact Gregg
Rothschild, Minority Counsel, at 202-226-3400.
Sincerely,
John D. Dingell
Ranking Member
cc: The Honorable W.J. ``Billy'' Tauzin, Chairman
Committee on Energy and Commerce
February 3, 2004
The Honorable John D. Dingell
Ranking Member
Committee on Energy and Commerce
U.S. House of Representatives
Washington, D.C. 20515-6115
Dear Mr. Dingell: This letter is in response to your letter asking
ABC to answer several questions regarding broadcast indecency.
At the outset, we want to emphasize that ABC takes very seriously
its responsibility to its audience. As discussed in more detail below,
ABC considers and reviews very carefully the content of its
programming.
In response to your first question, ABC believes that the ``f-
word'' is not appropriate for network programming in almost any
circumstance. We note, however, that the ``f-word'' was included in
ABC's network broadcast of the Academy-Award Winning film ``Saving
Private Ryan,'' in which the word was uttered a number of times as a
profanity by soldiers at war. Because of the special nature and quality
of the film, ABC decided to retain this language in its airing of
``Saving Private Ryan,'' but proceeded the broadcast with an extensive
advisory and parental warning about language and violence and repeated
the warning at several points within the broadcast.
Your second question asks about ABC's preventative mechanisms and
procedures. ABC's preventative mechanisms are extensive. Specifically,
ABC has a Broadcast Standards and Practices Department, headed by a
Senior Vice President with twenty years of television experience and
composed of 24 professionals who are responsible for the review and
acceptance of all ABC primetime entertainment programming. ABC's
Broadcast Standards staff works with creative personnel throughout the
entire prime-time program development process, from inception all the
way through to the on-air broadcast of entertainment programming.
Broadcast Standards editors are assigned to specific ABC scripted
entertainment programs and, in this role, they read, review and issue
notes of each draft of the script for each episode. A Broadcast
Standards editor also is on set or location during the live or taped
production of comedy, reality, specials and awards shows.
Rough cuts of taped prime-time entertainment programming are
reviewed and, when necessary, revised prior to broadcast. Acquired
theatrical films are reviewed and where necessary revised prior to
broadcast. Live prime-time entertainment programming is subject to a
delay mechanism staffed by experienced Broadcast Standards editors.
With respect to your last three questions, we want to assure you
that ABC is committed to complying with all indecency rules adopted and
articulated by Congress and the Federal Communications Commission,
regardless of the magnitude of the available sanctions.
Sincerely,
Alex Wallau, President
ABC Television Network
cc: The Honorable W.J. ``Billy'' Tauzin, Chairman
Committee on Energy and Commerce
______
Prepared Statement of Mr. Patrick J. Vaughn, General Counsel, American
Family Association, Inc.
Much of the raunchy material on television and radio today is the
fruit of the FCC's lax enforcement policy concerning broadcast
indecency.
The Federal Communications Commission (FCC) is charged with
enforcement of the law banning broadcasts of obscenity, indecency, and
profanity. 18 U.S.C. 1464, (``[W]hoever utters any obscene, indecent,
or profane language by means of radio communication shall be fined not
more than $10,000 or imprisoned not more than two years, or both.'')
The FCC has not adopted regulations to implement this statute. Instead,
the Commission has adopted a Policy Statement that sets forth an
extremely narrow definition of indecency, completely ignores profanity,
and places such a high documentation burden on anyone attempting to
file an indecency complaint that most are rejected by the FCC without
the station becoming aware that a complaint has been filed. Policy
Statement, In the Matter of Industry Guidance On the Commission's Case
Law Interpreting 18 U.S.C. 1464 and Enforcement Policies Regarding
Broadcast Indecency, FCC 01-90, 2001.
The American Family Association, Inc. (AFA) recommends that
Congress instruct the FCC to (1) Adopt a more comprehensive definition
of broadcast indecency; (2) Enforce the statutory ban on broadcast
profanity; (3) Reform its enforcement practices so that indecency and
profanity complaints receive the same level of investigation as other
types of complaints.
1. The law protecting minors from the broadcast of obscenity,
indecency, and profanity is constitutional.
Of all forms of communication, broadcast speech is entitled to the
most limited First Amendment protection. FCC v. Pacifica Foundation,
438 U.S. 726, 748 (1978). The Supreme Court has stated a variety of
reasons that justify broadcasting's lower level of constitutional
protection, including the fact that the broadcasting media confront
citizens in ``the privacy of the home, where the individual's right to
be left alone plainly outweighs the First Amendment rights of an
intruder,'' and that ``because the broadcast audience is constantly
tuning in and out, prior warnings cannot completely protect the
listener or viewer form unexpected program content.'' Ginsberg v. New
York, 390 U.S. 629 (1968). Therefore, the FCC can appropriately
regulate offensive broadcasts, even when they do not sink to the level
of criminal obscenity. FCC v. Pacifica Foundation, at 750-751 (``when
the Commission finds that a pig has entered the parlor, the exercise of
its regulatory power does not depend on proof that the pig is
obscene.'').
The courts have found a compelling Government interest in
restricting offensive broadcasts to (1) support parental supervision of
children, and to (2) protect children's physical and emotional well-
being, as well as their ethical and moral development. ACT III, at 661,
662 (citing, Ginsberg at 641). The DC Circuit Court of Appeals has
reaffirmed that ``the `channeling' of indecent broadcasts to the hours
between midnight and 6:00 a.m. would not unduly burden the First
Amendment.'' Action for Children's Television III, 58 F. 3d 654, 656
(1995).
Given this statutory mandate, which falls with constitutional
authority, how has the FCC gone about enforcing the prohibition against
the broadcast of obscenity, indecency, and profanity?
2. The FCC's current definition of indecency misses a lot of material
that is bad for kids.
Addressing the last point first, FCC policy totally ignores the
statutory ban on the broadcast of profanity. To define broadcast
indecency, the FCC uses a two prong test: (1) ``the material must
describe or depict sexual or excretory organs or activities''; and (2)
``the broadcast must be patently offensive as measured by contemporary
community standards for the broadcast medium.'' Policy Statement, at
7, 8. Applying this test, David H. Solomon, the Chief of the FCC
Enforcement Bureau, found that broadcast of the word ``f*cking'' during
the broadcast of the 2003 Golden Globe Awards did not fit the
definition. Solomon ruled:
As a threshold matter, the material aired during the ``Golden
Globe Awards'' program does not describe or depict sexual and
excretory activities and organs . . . Indeed, in similar
circumstances we have found that offensive language used as an
insult rather than as a description of sexual or excretory
activity or organs is not within the scope of the Commission's
prohibition of indecent program content.
Moreover, we have previously found that fleeting and isolated
remarks of this nature do not warrant Commission action. Thus,
because the complained-of material does not fall within the
scope of the Commission's indecency prohibition, we reject the
claims that this program content is indecent, and we need not
reach the second element of the indecency analysis.
Complaints Against Various Broadcast Licensees Regarding Their Airing
of the ``Golden Glove Awards'' Program, FCC File No. EB-03-IH-0110 at
5, 6 (2003).
This ruling highlights the excessive narrowness of the FCC's
definition of indecency. It becomes apparent that the FCC has failed to
enforce the law when you measure its ``Golden Globe'' decision against
the Government's compelling interest in restricting offensive
broadcasts to (1) support parental supervision of children, and to (2)
protect children's physical and emotional well-being, as well as their
ethical and moral development. See ACT III, at 661, 662.
Although the FCC has adopted an extremely narrow range of subject
matter that it will evaluate for indecency, even within that narrow
range, broadcasts to children of the depiction of sexual or excretory
organs or activities may be acceptable to the FCC in many cases. The
Commission defines the patently offensive standard to refer to the
standards of an average national broadcast viewer. Id. Although the
FCC's use of a national standard for what is patently offensive,
imposes the morals of New York City or Los Angeles on every community,
the FCC's standard of what is offensively indecent has a far worse
flaw. The FCC's ``average broadcast viewer'' standard applies an adult
standard to law that is designed to protect children. The Commission
has lost sight of the fact the constitutional justification of the
broadcast indecency prohibition is to protect children from material
that would be harmful to their physical and emotional well-being, as
well as their ethical and moral development. See ACT III, at 661, 662.
Further, the Commission has plunged its indecency regulations into
a relativistic quagmire by stating:
[T]he full context in which the material appeared is
critically important . . . Moreover, contextual determinations
are necessarily highly fact-specific, making it difficult to
catalog comprehensively all of the possible contextual factors
that might exacerbate or mitigate the patent offensiveness of
particular material.
Id. at 9. First, the FCC's fuzzy policy regarding ``full context''
ensures that there are no bright-line rules. Undoubtedly, material that
is indecent in a teen sitcom might appropriately be covered in an
educational broadcast of an anatomy class or on a National Geographic
special. However, the vagaries of the FCC's full context doctrine
encourages broadcasters who want to pander to young audiences by being
``edgy'' to include more and more indecent or profane material, but
``in context.''
Second, the full context doctrine overlooks the fact that one of
the constitutional justifications for the regulation of broadcast
speech is ``because the broadcast audience is constantly tuning in and
out, prior warnings cannot completely protect the listener or viewer
from unexpected program content.'' Ginsberg v. New York, 390 U.S. 629
(1968). Full context does not rescue a channel surfer.
Finally, the FCC has used its ``full context'' doctrine to impose
insurmountable burdens on anyone attempting to file an indecency
complaint.
3. The FCC's foot dragging regarding broadcast indecency is most
apparent in the way it has handled complaints filed by the
public.
Many complaints are returned unprocessed. It is the FCC's current
practice to refuse to process a citizen's complaint about broadcast
indecency unless the complainant happens to have, ``a full or partial
tape or transcript or significant excerpts of the program.'' Policy
Statement, at 24. A dad driving his kids to school, who is shocked by
indecency while tuning across the radio dial cannot provide such
documentation. Few people startled by an offensive incident in a
television program have a tape or transcript of the program. The courts
have cited the fact that broadcast indecency normally catches the
audience unawares as a basic justification for Government regulation in
this area. See Ginsberg v. New York, 390 U.S. 629 (1968). In contexts
other than indecency, the FCC employs standard investigatory
procedures. The complainant reports what they saw or heard and the FCC
requires the broadcaster to state under oath whether or not it had
aired the material that was the subject of the complaint. By placing an
insurmountable burden for documentation on indecency complaints, (1)
the FCC has discouraged the public from filing broadcast indecency
complaints, and (2) the FCC has shielded broadcasters from indecency
complaints.
To illustrate the tools at the FCC's disposal to investigate a
complaint regarding something broadcast, I have attached as Exhibit 1 a
copy of an investigatory letter that AFA recently received after one of
its noncommercial stations aired a wrongly worded underwriting
acknowledgment. Mea culpa. Letter from William D. Freedman, Deputy
Chief, Investigations & Hearings Division, Enforcement Bureau, Federal
Communications Commission, to American Family Association, Licensee
Station WAEF(FM), EB-03-IH-0427, December 1, 2003. In this case the FCC
required AFA to state under oath whether or not they had broadcast the
material, or something similar, required AFA to provide a transcript
and a tape, required AFA to state what was broadcast before and after
the underwriting spot. The FCC's enforcement of the advertising ban on
noncommercial stations is altogether appropriate, and believe me, we
take pains to avoid errors such as the cited above. The Commission
should apply no less zeal and use no weaker enforcement tools when the
public complains about the broadcast of indecency or profanity.
4. Conclusion.
Congress should reprimand the FCC for dereliction of its duty to
protect children from broadcasts of material that is harmful to their
physical and emotional well-being, as well as their ethical and moral
development. Congress should instruct the Commission to (1) Adopt a
more comprehensive definition of broadcast indecency; (2) Enforce the
statutory ban on broadcast profanity; (3) Reform its enforcement
practices so that indecency and profanity complaints receive the same
level of investigation as other types of complaints.
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