- THE BROADCAST DECENCY ENFORCEMENT ACT OF 2004

[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]

THE BROADCAST DECENCY ENFORCEMENT ACT OF 2004

=======================================================================

HEARINGS

before the

SUBCOMMITTEE ON TELECOMMUNICATIONS AND THE INTERNET

of the

COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

H.R. 3717

__________

FEBRUARY 11 and 26, 2004

__________

Serial No. 108-68

__________

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

Hearings held:
February 11, 2004............................................ 1
February 26, 2004............................................ 179
Testimony of:
Abernathy, Hon. Kathleen Q., Commissioner, Federal
Communications Commission.................................. 93
Adelstein, Hon. Jonathan S., Commissioner, Federal
Communications Commission.................................. 97
Berman, Gail, President of Entertainment, Fox Broadcasting
Company.................................................... 200
Copps, Hon. Michael J., Commissioner, Federal Communications
Commission................................................. 101
Hogan, John, President and Chief Executive Officer, Clear
Channel Radio.............................................. 212
Karmazin, Mel, President and Chief Operating Officer, Viacom,
Inc........................................................ 37
Martin, Hon. Kevin J., Commissioner, Federal Communications
Commission................................................. 83
Pappas, Harry J., Chairman and Chief Executive Officer,
Pappas Telecasting Companies............................... 217
Paxson, Lowell W. ``Bud'', Chairman and CEO, Paxson
Communications Corporation................................. 210
Powell, Hon. Michael K., Chairman, Federal Communications
Commission................................................. 78
Tagliabue, Paul, Commissioner, National Football League...... 29
Wallau, Alex, President, ABC Television Network.............. 197
Wurtzel, Alan, President, Research and Media Development,
National Broadcasting Company.............................. 205
Material submitted for the record by:
Network Affiliated Stations Alliance, letter dated March 11,
2004, to Hon. Fred Upton and Hon. Edward J. Markey......... 252
Powell, Hon. Michael K., Chairman, Federal Communications
Commission, response for the record........................ 138
The Best of the Best, white paper entitled................... 140
Vaughn, Patrick J., General Counsel, American Family
Association, Inc., prepared statement of................... 170

(iii)

THE BROADCAST DECENCY ENFORCEMENT ACT OF 2004

----------

WEDNESDAY, FEBRUARY 11, 2004

Prepared Statement of Hon. Fred Upton, Chairman, Subcommittee on
Telecommunications and the Internet

Good morning. Today we will be examining a bill I that have
introduced, along with Mr. Markey, Mr. Tauzin and Mr. Dingell, to
greatly strengthen the FCC's enforcement of broadcast indecency laws.
Let me start by saying what--in my view--today's hearing IS about
and what it is NOT about.
Mainly, what today IS about is listening and responding to the
American people's concern and understandable clamor for decency. Well
before the Super Bowl episode, many Americans were fed up with the all
too frequent flouting of common decency over our public airwaves.
As a Member representing a Midwestern district that typifies the
heart and soul of this country, I have been swamped with letters from
folks downright desperate and frustrated that the government has not
adequately used its authority to reign in broadcast indecency.
In one letter, a frustrated mother wrote . . . ``I am a single mom
trying to raise a daughter, and I cannot believe that it is nearly
impossible for us to watch TV, even sporting events, or listen to most
radio stations either, without being exposed to indecent material.''
As I said at our hearing two weeks ago, I believe that some
television broadcasters are engaged in a ``race to the bottom,''
pushing the decency envelope in order to distinguish themselves in an
increasingly crowded entertainment field.
Today we will consider H.R. 3717 . . . a bill to increase the
penalties which the FCC can impose tenfold. This is a tough bill which,
if enacted, would help clean-up our airwaves.
Even the mere introduction of the bill is already forcing the
broadcasters to be more responsible. The marketplace is reacting to the
threat of increased fines and stepped-up FCC enforcement.
In the February 5th edition of the Washington Post, Academy Awards
Executive Director Bruce Davis stated, ``Part of what they're worried
about is that bill in Congress that would increase the financial
penalties [for broadcasting an `indecency'] tenfold; they're terrified
of this. I can imagine the kind of pressure the network is feeling and
it's all very well for us to take a noble First Amendment approach, but
if this bill is passed and run through by February 29''--the date of
the Oscars--``we might be exposing them to some horrendous amount of
money . . . we have to recognize that.''
In addition to the Academy Awards adopting a five second delay, the
Grammy Awards this week was broadcast with a five-minute delay. We have
seen similar changes in behavior with other broadcasters.
I believe increased fines will push the marketplace to impose live
broadcast delays and promote more exacting, corporate discussions about
what is inappropriate for television and radio. We will likely see
contracts between the broadcasters and on-air ``talent'' whereby the
``talent'' will be required to pay any fines which might be imposed on
the broadcaster as a result of the ``talent's'' indecency. I suspect
such contracts could make Janet Jackson and Justin Timberlake think
twice before rolling the dice and taking the hit in their wallets. The
same goes for the ``shock jocks'' who brought us such dubious hits as
sex in St. Patrick's Cathedral and depictions of daughters performing
oral sex on their fathers.
And while I believe H.R. 3717 is a strong bill which is already
having an effect, I am interested in working with Members on both sides
of the aisle to improve the bill in a responsible way. We need to look
at the level of the fines. We need to look at beefing up the license
renewal procedures to ensure that indecency violations are factored in
by the FCC. As I've suggested before, perhaps we are at a point where
we need to drop the hammer of three strikes and you're off the air.
Today's hearing is NOT about anything to do with television or
radio outside the scope of the public's airwaves. Our bill applies to
broadcast TV and radio. However, I would hope that all companies--cable
or otherwise--would adhere to a voluntary code of conduct for
programming during the hours that children are most likely to be
watching.
But as a parent, I would also add that we all need to continue to
actively monitor what our children are exposed to on television and
radio. This hearing is not about making a government entity the nanny
of America's children. I know that the ultimate responsibility for
instilling character, common sense and values in my children . . .
rests within the four walls of our home.
It's just that, regrettably, the current ``race to the bottom'' in
the entertainment industry has made it an all but impossible task for
parents. They should be able to rely on the fact that--at times when
their children are likely to be tuning in--broadcast television 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 this regard. We are here today to help ensure that
the Congress takes responsible and constitutionally sound steps in
doing our part to help the FCC make sure the public's airwaves are
cleaned-up through strengthening enforcement of the indecency laws
which have been on the books for decades.

Mr. Markey. Thank you, Mr. Chairman, very much, and I think
you for holding this hearing today. The legislation which you
and I introduced has now drawn obviously considerable attention
across the country and the co-sponsorship of so many of the
members on this committee obviously is having a real impact in
terms of the discussion which is taking place in the country.
This hearing is going to make it possible for us to gain
the testimony on the legislation which we have introduced and
it will also allow us to make some early determinations as to
just where the level of fine should be for all violations of
the law.
The public's 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 interest. There are those
licensees, however, who are not treating these licenses as a
public trust, but as a mere corporate commodity 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 its
stations do not air obscene, indecent or profane content in
violation of the law and the Commission rules. The enforcement
record of the Federal Communications Commission is not
encouraging. In 2002, there were 14,000 complaints about some
389 different programs, yet the Federal Communications
Commission issued only 7 notices of apparent liability that
year.
Last year, complaints skyrocketed to 240,000 for
allegations about 375 different programs, let last year, the
Commission issued only 3 notices of apparent liability.
And we heard testimony at our first hearing that thousands
of complaints are never addressed or languaged to the point
where essentially the statute of limitations has run out.
The Federal Communications Commission has many numerous
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 licensees, particularly in
the radio marketplace.
Many stations regard the prospect of a fine as merely a
potential slap on the wrist. Washing their mouths out with soap
would have a greater deterrent effect than the few and the
paltry fines that the Federal Communications Commission
currently levies. The FCC's utter unwillingness to revoke
licenses or to raise these issues during license renewal
essentially means there's no real deterrent effect left. This
is especially true of the multi-billion dollar media
conglomerates who control a multitude of stations. What
possible deterrent effect can $27,000 have on a company which
reaps in $27 billion in annual revenues?
We need to have a public discussion about the FCC's failure
to use its enforcement and deterrent tools effectively, even in
the most egregious cases and what the FCC plans to do about
this issue. Clearly, Congress will have to address these
shortcomings at the FCC.
Second, we need to do a better job in educating parents
about the tools they already may possess or can utilize to
address the myriad concerns they raise with us about what is on
TV and radio and need the assistance of the industry in this
area. Parents can use the TV ratings system and the V-chip
which stems from legislation that I authored 7 years ago.
Today, the several million families that use the V-chip
like it, yet the vast majority of parents will only use it if
they fully understand the ratings system and how it works in
conjunction with the chip and only if parents have bought a
recent TV that has the chip in it. The industry did a good job
with much fanfare after the TV ratings system was finalized in
doing public service announcements and other educational
messages regarding the ratings. Yet those efforts have waned
significantly in recent years. I believe that the industry
should renew such efforts and also consider a number of other
ideas. For instance, I believe that the icon that appears at
the beginning of a show such as TV-13 with a V, an S or an L
for violence, sex or language, should appear after each
commercial break. That way, channel surfers who land on that
show during commercials will get a warning as the show resumes.
I also believe the industry should consider adding a voice
over when the ratings appear. If dad or mom is in the kitchen,
out of the room or distracted reading a newspaper, they may not
see the icon when it appears. A voice over would help parents
hear the rating as the show begins and prompt them to change
the channel and protect their children from inappropriate
programming.
With respect to cable programming, we need to explore ways
in which we can educate parents and make more useful the
provisions of the Cable Act of 1992 that permit any cable
subscriber to request a blocking mechanism to block out any
cable channel parents find objectionable. If a family buys the
expanded tier of basic cable service, but does not want MTV in
their house, they can request equipment from their cable
operator that effectively blocks out MTV. This is an option
that many subscribers do not know they have and we have to
ensure that all avenues are explored to improve the
effectiveness of this provision so that the millions of parents
who may want cable in their house, but not some of these
offensive channels can, in fact, just disconnect those
offensive channels.
Clearly, many broadcasters needs to clean up their acts.
Parents are increasingly frustrated and have every right to be
angry at both certain licensees with a history of repeated
violations as well as with the Federal Communications
Commission itself.
I thank you, Mr. Chairman, for this timely hearing. I think
it really is an important discussion the American people want
us to have.
Mr. Upton. Thank you. I recognize the gentleman from
Florida, Mr. Bilirakis.
Mr. Bilirakis. Thank you, Mr. Chairman, and I too want to
commend you for holding this second of, as I understand it,
three hearings, at least on this subject. As a grandfather of
six, I am very concerned about the programming being broadcast
into our homes. Over the last several months I've heard from
many of my constituents that share these concerns and of
course, like many of my colleagues, I've received dozens of
complaints from constituents who are outraged by the content
included in the Super Bowl's halftime show. And I'm sure we're
going to talk more about that as time goes on.
And I also understand that the FCC received more than
200,000 complaints about it as well and I am pleased that the
FCC has acted quickly to initiate an investigation into the
broadcast. I do believe that additional action is necessary,
Mr. Chairman, and that's where H.R. 3717 comes in because it's
certainly one step in the right direction. As we've heard over
and over again at our last hearing, some companies consider the
current fines from the FCC as the price of doing business. This
is a clear indication that the current fine structure is not a
sufficient deterrent to bad behavior and your bill, the bill
that you and Mr. Markey wrote which I am very pleased to have
been co-sponsor, increases the penalties tenfold with a cap of
$3 million for continuing violations and as I've already said I
support that increase in forfeiture authority.
However, Mr. Chairman, as you know, I made it clear in the
last hearing, as we consider increasing the penalties that can
be imposed upon broadcasters, I am particularly concerned about
the ability, the ability of local television affiliates to
reject programming that they consider unsuitable for their
communities. Over the last several weeks, my staff and I have
spoken with a variety of individuals regarding the
relationships between the networks and their affiliate
stations. We received a wide range of perspectives on the
ability of local affiliates to pre-empt programming that they
find objectionable.
So as we move forward on this issue, Mr. Chairman, again, I
reiterate, I think it's imperative that we examine ways to
clarify an affiliate's ability to pre-empt programming that is
unsuitable for its local community. I am anxious to hear from
today's witnesses, especially the Commissioners, to get their
perspectives of this important issue and my questioning will go
into that particular area and I'll let the others go into the
fines and what not.
Thank you again, Mr. Chairman. I yield back.
Mr. Upton. Thank you. I recognize the gentleman from the
great State of Michigan, Mr. Dingell, for an opening statement.
Mr. Dingell. Mr. Chairman, I thank you, and I commend you
for holding this hearing. I look forward to joining you in
support of good legislation to address the concern we confront
here. I note that one of the functions of this hearing will be
to find out what is the law, what are the regulations, how are
they being enforced and what does it all mean?
I had the impression that public indecency on the airwaves
was subject to controls by the FCC. I see that apparently that
is not the case and apparently there is no enforcement of
regulations at the FCC.
I grieve to see my two friends, Mr. Tagliabue and Mr.
Karmazin, here with us this morning. And I tell them that
there's nothing personal in the questions that will be asked
today. I also note that others from the broadcast industry will
be called upon to come before this committee because this is an
industry-wide concern to the Congress and the behavior of the
FCC is a matter of very special concern to the Congress.
I note that we appear to be in a very unfortunate race to
the bottom where everyone in the broadcast industry is subject
to vast pressures to have more and more profitable and less and
less dignified and proper broadcasting.
Now I'm not one here to criticize this on moral or
theological grounds. I happen to think that there is a question
there that could be addressed, but I am here to raise questions
about whether the law is being carried out and whether the
public policy is proper.
So for these reasons, Mr. Chairman, I commend you for your
leadership on this issue. I think our committee's work has
gotten the attention of FCC Chairman Powell and the Bush
Administration. And I'm happy to see the FCC now being brought
to a state of apparent alert on these matters.
I welcome Chairman Powell's new found concern for the level
of sex and violence on television and in better enforcing the
Agency's indecency rules. I would observe there's a fine saying
on this, ``better late than never.''
Two weeks ago, members on both sides of the aisle expressed
outrage over the use of certain unacceptable language on
broadcasts by Fox and NBC. Some of us had hoped that the
onslaught of indecent broadcasts could be curbed by that
hearing and the potential for legislation to increase penalties
for indecent broadcasts. Unfortunately, we were apparently
quite wrong. A few days later, Americans were treated to a
halftime show at the Super Bowl which many, including myself,
found to be patently offensive. Others have noted that the CBS
network displayed remarkably poor judgment in airing violent
commercials during Super Bowl hours where they knew children
would be in this television audience. Even more disturbing is
the seeming indifference of the several network executives to
these concerns.
At our last hearing I noted we could accomplish little
unless the committee brought before it the executives of the
major television and radio networks. I think we need to hear
from them as well as from Mr. Karmazin and Mr. Tagliabue.
This problem of too much sex and violence in broadcasting
can only be addressed if the industry itself is willing to
examine its practices and find solutions. If they will not do
so, then it becomes the responsibility of the FCC acting under
the hopefully strong tutelage and guidance of this committee to
carry out its statutory responsibilities.
Unfortunately, many of the network and radio executives
have declined the Chairman's invitation to appear today. I can
only conclude that this is a prudent act on their part, one
which protects them from a certain uncomfortable appearance
before a congressional committee. I have to conclude, however,
that they are in good part insufficiently aware of the
seriousness of concern on both sides of the aisle on this
committee and on the streets and are indifferent to the
legislation before us. Perhaps then some legislative changes
will be necessary to attract their more full and complete
attention.
I'm not surprised that they are indifferent to the
legislation. I was pleased to co-sponsor your bill, to raise
the penalties, Mr. Chairman, for obscene and indecent
broadcasting from $27,000 to $275,000. It appears that the
absent executives consider these penalties to be nothing more
than lunch money or perhaps a small cost of doing business. And
why shouldn't they? Here's some revenue figures for the
trailing 12 months for the companies that own major networks:
General Electric, $134 billion; Disney, $27 billion; Viacom,
$26 billion; NewsCorp, $23 billion. I think it's worth noting
that Clear Channel, a frequent violator of FCC's indecency
rules had revenues of $9 billion.
Now let's look at these numbers to see what they mean in
terms of percent of revenue of these companies. General
Electric/NBC, 0.002 percent; Disney/ABC, Viacom/CBS and
NewsCorp/Fox, 0.001 percent; Clear Channel, 0.003 percent. Or
for a different perspective, even if the FCC were to fine CBS/
Viacom the maximum penalty allowable under the bill for the
shameless stunt during the halftime show, the executives of
that company will sleep most comfortably knowing that they have
made nearly 10 times that amount with each 30 second Super Bowl
ad.
I commend Mr. Karmazin from Viacom and Mr. Tagliabue for
coming here today to discuss these matters. Gentlemen, I thank
you for being here, but what should we do about those
executives who have declined your invitation?
Mr. Chairman, I think we need to hear from them. And I
suggest that there are some words that may help get their
attention. One, forfeiture. Perhaps the penalties in this
legislation need to be more closely tied to the advertising
revenues that an indecent broadcast generates. As long as the
revenues from such broadcasts far exceed the penalties this
behavior is going to continue.
Two, revocation. My experience in fighting the recent
battle over media ownership has taught me that the potential
loss of licenses is the best way to get the attention of the
network or the broadcaster who might be involved.
The airwaves belong to the public. The licensees are
licensed subject to rules. We must find out whether the FCC has
the intention of carrying out these rules and whether it has an
affinity for seeing to it that the law is properly carried out.
The FCC has rested most tranquilly by its responsibilities and
we will ask some useful questions about what they have done. If
the rules are repeatedly broken, license revocation should
clearly be considered.
Three, renewals. Certainly, any and all indecency
violations should be a major mark on a licensee's record when
the license comes up for renewal. The FCC should certainly be
required to afford such violations substantial weight when
determining whether a licensee should have it's broadcast
license renewed.
All three of these matters are worthy of consideration. I
understand the Congress has been a reluctant body when
legislating on the issue of speech. This is not an issue, I
note, of speech, but rather of carrying out the license which
is given and seeing to it that laws which are fair are, in
fact, applied fairly and evenly across the board to prevent a
race for the bottom in the broadcasting industry.
We find ourselves here then with an industry that has
failed to control itself, an Administration and FCC that is
unwilling to act to effectively enforce its rules. It looks
like we should inquire this morning then what would be a
suitable action by the Congress. Certainly, your excellent bill
is a beginning. Certainly more is required.
Once again, Mr. Chairman, I commend you for holding these
hearings. I appreciate your willingness to invite the missing
radio and television executives to a future hearing to consider
these issues. I'm sure their testimony will be helpful and I'm
sure they will be interested in talking to us about the three
points that I raised this morning.
Mr. Chairman, I thank you.
Mr. Upton. Thank you, Mr. Dingell.
You are recognized for an opening statement, Mr. Barton
from Texas.
Mr. Barton. Thank you, Mr. Chairman. I ask unanimous
consent to revise and extend my prepared statement Mr. Upton.
Without objection, all members' opening statement will be
entered as part of the record.
Mr. Barton. Mr. Chairman, there's a famous movie, I think
the name of it was Network, where the commentator comes on,
says we're mad as H-E-L-L and we're not going to take it any
more. I think that's where the country is. The halftime show at
the Super Bowl is the proverbial last straw and that's why
we're here. I do want to thank these two gentlemen for
appearing before our panel today.
Mr. Tagliabue, we appreciate the game. It was one of the
best Super Bowls.
And Mr. Karmazin, we at least appreciate the attempt at
halftime to provide entertainment, although I think it went a
little bit beyond the bounds.
The focus of today's hearing is on enforcement of the
existing sanctions, whether we need to increase the level of
those sanctions, whether we need to increase the type of
sanctions and whether we need to increase the eligibility of
who can be sanctioned.
I was very heartened by what Chairman Dingell said in his
remarks and what Congressman Markey said in his remarks.
There's obviously a bipartisan consensus that something needs
to be done and the question is what needs to be done?
The purpose of this hearing and the markup that's going to
be tomorrow is not to get into some of the more controversial
issues such as ownership requirements and things of that sort.
We have a consensus on the committee. We have consensus in the
country that something needs to be done to protect over-the-air
broadcasting standards and I think this subcommittee is going
to move in a very expeditious fashion tomorrow and then I think
the Full committee is going to move within the next month in a
very positive fashion and I look forward to being a part of
that process, Mr. Chairman.
With that, I would yield back the balance of my time.
Mr. Upton. Thank you. Ms. McCarthy.
Ms. McCarthy. Thank you very much, Mr. Chairman, for this
hearing, as well as for the legislation you've introduced. I'm
proud to be a co-sponsor with you. I really wish that this
hearing were not necessary, actually. I'm a civil libertarian
and proud of my defense of the first amendment, but I am really
concerned about the abdication of responsibility by the
broadcasting industry and what that has meant for viewers.
I'm hopeful that the witnesses here today and I'm very
grateful that they are here, will share with us what it is that
is keeping them from executing their responsibility. It seems
to me and I can reminisce, I'm old enough to remember being on
a drill team and performing at half times in high school and
half times historically, traditionally were about marching
bands on the field and flag wavers and pom pom throwers and so
forth. That's all changed and other organizations have
accommodated that change. It's been cited that the Grammy's
stood a 5-minute delay before airing their show.
Why aren't the broadcasters looking at alternatives for
half time presentations? Certainly, since it's no longer
marching bands from regional colleges or any of the traditional
half time we've been used it, it certainly could be taped way
in advance and shown. I'm told by friends who were fortunate
enough to be present at the game that you couldn't even see if
it you were in the stands anyway, so it wasn't for the people
at the Super Bowl. It was for the television viewers. If that's
the case and we all want to respect the first amendment, and
those rights, then why not have the industry tape it ahead of
time, review it and make such deletions or changes as are
appropriate for the viewers and make that quite clear.
I think there are solutions without trampling in our first
amendment rights. I'm here today to hear what ideas the
industry has to present to us about accepting their
responsibility, as well as to the regulators who clearly it has
been made note of that fines are not at all in sync with the
consequences. I'm not sure that it isn't just a cost of doing
business, but I'm anxious to hear from the regulators as well
on what, if any, additional tools that they need. But it is
time, Mr. Chairman, as you have proposed, to rethink this whole
activity and I'm very pleased that we're having these witnesses
and this hearing today.
Thank you.
Mr. Upton. Mr. Stearns.
Mr. Stearns. Thank you, Mr. Chairman, I'm an original co-
sponsor of your bill and I commend you for this hearing today.
In determining whether material is indecent, the Federal
Communications Commission applies a quote contemporary
community standards quote test. I think all of us in this room
will agree that this test has decreased in terms of indecent
material.
Now some will say and I think the Chairman here of Viacom
has indicated that indecent programming only represents a
handful, a handful of incidents, an infrequent amount in
proportion to the 8 billion minutes broadcast per year. But I
also submit that Commissioner Martin, in his testimony,
provides a sharp contrast to that by noting that consumer
complaints for indecent programming have gone from hundreds to
hundreds of thousands. In fact, in the year 2003, the number of
complaints jumped to 240,000. Five years ago, it was probably
in the hundreds. Some may think that incidents of indecency in
programming are infrequent, the outrage from parents and family
organizations, of course, is growing greater and greater.
The point I'm trying to make is that we're facing a much
larger problem here. Must See TV does not mean the public must
see certain parts of a person's anatomy during a live
broadcast, yet artists consistently attempt to increase the
shock value of their words or actions. Broadcasters know this
which is why at times they provide warnings to viewers
regarding language, violence or explicit scenes.
But Mr. Chairman, honestly, are we actually to the point in
our society that we must in the future place such viewer
warnings before and during the Super Bowl? Broadcasters can
employ audio and video delays, but that will not stop these
artists from pushing the envelope to gather as much publicity
as possible.
The FCC has the authority to fine individuals, but has
never brought forth a notice of apparent liability for these
individuals all during this time. Why? Because under the
Communications Act, the Commission can only do so if the
individual commits a subsequent act, so basically any artist
can go on any live TV, blurt out any phrase, display of vulgar
acts, then simply walk away, free of any accountability.
They're getting a Get Out of Jail Free card.
It's my understanding that the subsequent engagement
language is included because the individual may not have been
aware of the regulations regarding indecency. This brings to my
mind the old phrase ``ignorance is no excuse in the eyes of the
law.''
These performers are told prior to their appearance,
exactly what they can and cannot say. It is also basic common
sense to know if you drop the F word or bear a certain part of
your anatomy, people will be offended. If we intend to hit
licensees in the pocketbook as a deterrent to offensive
programming, we should do the same for the person that commits
the indecent act.
Thank you, Mr. Chairman.
Mr. Upton. Ms. Eshoo.
Ms. Eshoo. Good morning, Mr. Chairman, and I too, along
with all of our colleagues on the committee, thank you for your
leadership on this issue and for holding this, the second
hearing on it. And I welcome the witnesses that are here with
us today.
This is a problem that I think has been escalating for a
number of years and I think the straw that broke the camel's
back was what so many people saw on Super Bowl Sunday. And it
strikes me that despite the amazing growth of the internet and
other forms of communication, television and radio remain
extraordinarily powerful mediums for sharing ideas in our
country, for promoting viewpoints and frequently, for
instilling values. It's not headlined, instilling values, but
it's right there in the mix with everything that is viewed and
heard and what the content of that is.
I'm pleased, Mr. Chairman, to co-sponsor your legislation.
As has been stated before, I think that the penalties really
are not penalties unless they are severe. And with that people
will sit up and take notice. But I also think that in addition
to passing new laws and raising the penalties for inappropriate
broadcasts, we need to do much better as a society in fostering
a higher level of discourse and in setting a better standard
for young people and for ourselves. For this, I don't believe
there is legislation. That's why I think the discussion and the
conversation here in the Congress is such an important one,
that people across the country and those that may be listening
in different parts of the world will understand that we do have
a set of values in our country and that the standards really
should be high and that as we send things out around the world,
that we export the best of ourselves. I think that whomever is
involved in this, even though you have a bottom line, and I
appreciate that, that you set very high standards for
yourselves, that you raise the bar for yourselves and that if
there's something or someone that doesn't meet that standard,
that you be the first to recognize that.
I think as a community we're responsible for what goes out
over our public airwaves. The operational word is public.
They're not private. They're public airwaves and that I think
that there's a collective sense that we've kind of had it with
some of the things that pass for entertainment today.
Parents, of course, and I'm one, even though my two are
very grown, they have to play an active role in this. I also
think along with Congressman Markey, that the Congress can take
some steps to assist parents, but they're the ultimate arbiters
in this in terms of what's appropriate for their children, what
they see and what they hear. But even the most attentive
parents can't possibly contend with the barrage of either
coarseness or profane content that comes across their TV
screen.
The FCC has a primary role in deterring and setting up
standards and then sticking to them. We can all jump on the
FCC, most frankly, with some legitimacy. I think that they
really have failed to do what they should do and I think we're
getting their attention now and hopefully between this
committee and what we do and the FCC that will enter into a new
chapter relative to the public airwaves.
So I thank you, Mr. Chairman, for holding the hearing
today. I look forward to the testimony of our witnesses and to
Mr. Tagliabue, I have enormous respect for you and I think that
you do have high standards and it shows in so much of what you
do, but we need you to help us with this. I'm sure that what
the committee sets down, what the Congress sees fit to do that
you will be a willing and important partner in it. So thank you
again, Mr. Chairman, and I yield back the balance of my time.
Mr. Upton. Mr. Cox.
Mr. Cox. Thank you, Chairman Upton, for your leadership on
this issue and for holding this important hearing. Welcome, Mr.
Tagliabue, Mr. Karmazin.
As I think you can infer from many of these opening
statements, this is not about the Super Bowl halftime show.
It's about a problem that's been festering for a lot longer.
We don't need to achieve consensus on exactly which words
and images are appropriate for public display because so much
of what's now broadcast on the public airwaves is so far over
the line. And that line which separates artistic expression and
quality entertainment on the one hand from nihilist garbage
should be tested by free people using their own money and not
on the taxpayers' subsidized public airwaves.
TV and radio broadcasters receive a multi-billion dollar
subsidy from the American public in the form of free bandwidth.
As a result, they owe something in return to the community.
While others in telecommunications pay for their share of the
airwaves, the broadcasting industry has been given multi-
billion dollar slices of the public airwaves for free.
In the 1990's, every other industry that uses the airwaves
such as wireless phone companies, paid for their pieces of the
airwaves in government auctions that generated billions of
dollars for taxpayers. The broadcast industry, on the other
hand, gave the taxpayers nothing for their continued free use
of this valuable public asset and on top of that, every TV
station owner was recently given more free bandwidth to convert
to digital TV. That taxpayer largesse shouldn't be rewarded
with what we're getting. Consumers should see more from this
than simply an opportunity to receive the same objectionable
programming in digital form.
This latest gift from the taxpayers, by the way, of
broadcast spectrum, is worth perhaps $100 billion. That's a
payment from every man, woman and child in America of about
$350. Our witnesses today will acknowledge that the Super Bowl
audience of 140 million Americans weren't exactly enthusiastic
about the way a major broadcaster is using their $350.
Mr. Chairman, I would ask as we consider higher penalties
for broadcast indecency, that we also consider why American
taxpayers should continue subsidizing this industry. I would
hope that this committee could agree at a minimum that it's
time to set a hard date at the end of 2006 or sooner, for the
return of taxpayer property and the immediate auction of the
loaned broadcast spectrum.
As for the television content providers, it's not that you
don't have the right to produce nihilist garbage. It's that
there ought to be some place, some time during the day where
Americans who watch TV and listen to radio can escape it. We
have hundreds of channels these days and there's something for
everyone on pay commercial TV. But free public airwaves, so
easily accessible to children, and for which every taxpayer is
footing the bill, should be free of junk. I will defend to my
last breath your right to cuss and use foul language and run
around naked with forest animals if that's what suits you, but
don't impose it on people who don't want it or on our kids who
may want it, but who deserve far better.
Thank you, Mr. Chairman.
Mr. Upton. 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 Commissioners and other
witnesses for participating today. As my colleagues have
mentioned, this subcommittee will mark up a bill that will
significantly increase the fines on indecent content in
television and radio broadcasts. This bill is far from perfect
and I believe it's only a small part in addressing this
problem.
First, I think we need to address enforcement. A number of
complaints have surged in recent years, yet the FCC rarely
investigated, and when the Commission did issue fines, it took
them one to 3 years to do it. I liken this to a school police
officer looking the other way when kids are fighting or selling
drugs at school.
I read Bubba the Love Sponge transcripts and it was obvious
that this dialog had no business being on public airwaves at
any time of the day much less when our kids are most likely to
listen. Why did it take 3 years to determine that material was
clearly indecent? Why aren't repeated indecency violations
considered during license renewal? And how often does the
Commission actually follow-up to make sure these violators are
paying up?
Second, we need to take another hard look at the new media
consolidation rules the Commission issued last year. It seems
the Commission Chairman's priority in the last year was making
it easier to form media monopolies without consideration on how
that would impact our children and what they see on TV.
Indecent and obscene programming on radio and television are
becoming the norm rather than the exception and local
communities and local broadcasters are losing their power to
tell the big media conglomerates no.
Was the impact of consolidation on indecency ever
considered by the FCC before it issued its rules and before the
Administration forced greater consolidation on the American
people?
Third, if we increased the fines on indecency, then I think
we also need to consider what else falls under the indecency
definition, specifically, excessive, graphic violence.
Indecency should not be limited to sexual content. Excessive
and graphic television violence has surged as networks compete
for young viewers, all in the name of higher advertising
profits.
Multiple studies have found that this kind of television
violence has a harmful impact on children. I hope we learn
today how the FCC plans to address this issue. Again, if
indecency rules and higher fines are intended to protect our
kids, why isn't violence included under the indecency
definition?
And finally, Mr. Chairman, if we're going to hold hearings
on indecency in the media, then as I said at the last hearing,
we need to hold a hearing on first amendment issues such as
censorship in the media. The same company that ran Super bowl
halftime show is the same company that refused to broadcast the
drama documentary on the Reagans and refused to allow a
nonviolent, nonsexual moveon.org ad that addressed a $1
trillion deficit and who's going to pay for it. This is nothing
more than censorship.
Mr. Chairman, I ask again, let's have a full hearing on
first amendment violations over our public airwaves.
Thank you, Mr. Chairman, I yield back any balance of time I
may have.
Mr. Upton. Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. Opening statements
are beneficial to the public and to people in the industry to
relate that Members of Congress have gotten the message from
our constituents. And so now the question is as we move forward
is basically how hard are we going to come down, how fast and
how are we going to craft legislation that will actually move
because in the midst of statements there will be positioning of
whether we can move legislation that will be signed versus will
be bog down in the political rhetoric and the fights that will
unfold?
So I'm not going to pile on on the issue of penalties
because we'll have a chance to address that. We're going to
have another hearing. We're going to have a subcommittee
markup. We're going to have a full committee markup and the
process is just moving forward.
Many people know in this hearing room and my colleagues, we
were very successful in addressing legislation to help protect
kids on the internet, .kids.us. And I would challenge the NFL
and I would challenge Viacom to get on board with the .kids.us
site, provide children appropriate material, information-based
on this website. It's a statement that you want your industries
to meet and educate children in an appropriate manner on the
internet. So we want to continue to--I use every opportunity I
can to talk about the .kids.us site because it addresses the
similar things that we've had.
Now we've got many problems with pornography and smut and
indecency issues, whether it's peer to peer systems,
downloading on the network or free over the air. Free over the
air is something we can get our hand on real quickly which is
what we're going to do.
So I will continue to concur and support my colleagues as
we move this legislation forward, but I would make my appeal to
our corporate members at the hearing table to have their
companies look at the .kids.us website and get engaged in a
process that's positive, proactive information for kids under
the age of 13 that can't be abused by those who would promote
smut and indecency to our kids.
With that, I'll yield back my time, Mr. Chairman. Thank
you.
Mr. Upton. Thank you. Mr. Green.
Mr. Green. Thank you, Mr. Chairman, for calling the hearing
on H.R. 3717 and I'm proud to be a co-sponsor of it, along with
you and our Ranking Member Markey and our Chairman Tauzin and
Ranking Member Dingell. I'd like to welcome Commissioner
Tagliabue and Mr. Karmazin to our hearing. Like a lot of folks,
I have a District in Houston and you know, I was disappointed
in the results of what we saw because it was the second time
Houston has hosted a Super Bowl. We had one of the best
football games I've seen, very competitive and down to the last
few seconds. And the halftime show seemed like it overshadowed
all the other success that was there from that Super Bowl. And
even the success of the first time of having the University of
Houston and Texas Southern University bands perform at halftime
together, two major, state, urban universities, one
predominantly African-American, the other one very multi-
racial, perform together. So I was proud of that in watching
the Super Bowl halftime.
It was frustrating and I think this committee was already
working on this legislation but to see that happen, it just
added icing, I guess, to the cake.
Our committee sometimes is known for its bipartisan
cooperation and sometimes not, but I'm real impressed with our
bipartisan cooperation on this particular issue. By all
account, indecency on the airwaves has dramatically increased
over the past few years. And personally, I don't think
Americans' public taste has gotten worse, but for some reason
some of the industry felt like they had a green light.
Now this comes at such a high profile, again, including my
home town of Houston and created enough outrage the FCC is
shifting gears at a furious pace. Like many Americans, I was
deeply dismayed to see our moral boundaries on television and
radio being pushed to the extreme by both the established and
emerging television networks.
The problem goes beyond four letter words during awards
ceremonies or a brief nudity during the halftime at the
National Football League. The large concern is the overall
programming that is, I consider, going down the tubes. On
Temptation Island, you can watch couples cheat on each other
and on Who Wants to Marry a Multi-Millionaire, marriage is
equal to greed, all during the so-called Family Hour of
broadcast TV.
It's hard for some parents to watch broadcast of the
National Football League with children, not just because of the
halftime, but because of the raunchy and violent advertisements
after every punt, touchdown or turnover. I don't think we need
promises to be fair and balanced. It's that Americans would
settle for little more than decency and respect.
In 2002, the FCC received almost 140,000 complaints about
389 different programs, yet issued on 7 notices of apparent
liability for fines. In 2003, the FCC received 240,000
complaints about 375 programs and issued only 3 orders. Where
has the referee been during this downward spiral in the last
few years? Maybe the Commission has awoke and we can raise the
FCC's penalties. I just hope we're successful.
If we are successful, we need to make sure that the meaning
of the FCC's rules are clear and that people who break the
rules are the ones who are punished.
To address the first issue, I support a collaborative
industry effort to bring American media companies together
either to agree on what our current standards mean or if they
need to be scrapped to create new standards. Commissioner Copps
has been calling for this for years and Chairman Powell is now
proposing something along those lines today. I call on the
entire media industry to participate in a meaningful way.
To address the second issue, Congressman Bart Gordon and I
are preparing an amendment to H.R. 3717 that we will present in
markup tomorrow. The amendment will shift the majority of the
burden of the entire fine away from local affiliates with
little or no control over the network broadcasting content and
place the bulk of the responsibility on networks that produce
the programming. And I look forward to discussing these ideas
further and in particular, I look forward to these panelists
today.
Again, thank you, Mr. Chairman, for holding this hearing.
Mr. Upton. Ms. Wilson?
Ms. Wilson. Thank you, Mr. Chairman, and thank you for
continuing to pursue this issue and for your leadership on this
issue.
On Super Bowl weekend, I was out of town visiting my mom
and I called home a few minutes before halftime and in our
house we're real restrictive about television watching, but we
have a sports fanatic fourth grader who asked for special
permission to watch the game. So my husband and my kids
together watched the Super Bowl. And even before halftime I
heard about the farting horses which I guess proves what we've
all suspected that Madison Avenue really does pitch its
advertising to the average fourth grader's sense of humor.
When I called the next day my son without any prompting
said to me, ``mom, did you see the halftime show at the Super
Bowl?'' and I told him that I had. And I asked him what he
thought of it. And he said, ``I thought it was nasty.'' The
disrobing was apparently the talk of the playground in our
neighborhood for the whole following day and the kids on the
playground seemed to know that the television station might get
sued which is really not a bad fourth grade description of an
FCC fine. My son seemed to think that they should sue Janet
Jackson and Justin Timberlake because they were the ones who
did it and it was really nasty. If the fourth grade boys at a
public elementary school in Albuquerque, New Mexico can tell
right from wrong, we need to ask ourselves where you corporate
CEOs lost your way?
I should not have to use an NFL halftime show as a negative
example to teach my children. And there are a lot of other
parents who feel the same way.
As a lawmaker, I want to know how something like this made
on to the show, in a very scripted, rehearsed for weeks
performance. And all of these ``well, we never knew about it''
sounds a little like the Homer Simpson defense.
The playground at our elementary school should have been
abuzz with talk of the Patriots and their great moves on the
field, not the moves of some disrobing rock star. The FCC plays
an important role in protecting Americans and our children from
indecent programming. The FCC has a statutory mandate to
prohibit indecency on broadcasts, but the government alone is
not the answer.
While some argue that television and radio reflect social
values, you also influence social values and in the same way
that Enron highlighted unacceptable corporate behavior from a
financial point of view and ethics in our corporate board
rooms, Viacom's support of shock jocks and allowing tasteless
Super Bowl programming is a nationwide entertainment industry
standard. You knew what you were doing. You knew what kind of
entertainment you're selling and you wanted us all to be abuzz
here in this room and ont eh playground of my kid's school
because it improves your ratings, it improves your market share
and it lines your pockets.
It's time for a change and unless we see change in the
corporate board rooms and a return to responsibility, this bill
is only going to be the first step in changing American
broadcasting.
Thank you, Mr. Chair.
Mr. Upton. Mr. Davis.
Mr. Davis. Thank you, Mr. Chairman. I, too, am the parent
of two small children and I have witnessed this very disturbing
trend, particularly in my own backyard, the Tampa Bay area. I
expect the FCC and these companies to help me make informed and
wise judgments about the access of my children to this type of
material.
I am a co-sponsor of the bill. I think it's a good first
step. I'm also very cognizant of the responsibilities and
limitations imposed upon us by the United States Constitution
with respect to protection of political speech and to a lesser
extent, commercial speech.
As we begin the testimony in a few minutes, I hope that
each of the witnesses will speak to us not just as leaders of
their respective organizations, but also as parents and
grandparents and citizens. I presume you, too, have had
discussions with members of your own family about what occurred
and please tell us how you feel about this as a human being,
not just as a business executive.
I think it's very important that this hearing try to
establish exactly what the policy of the FCC is in terms of
enforcement. It's critical they have the tools they need to do
their job and that they be adequate and used. I am very
concerned about the delay associated with many of the actions
the FCC has taken. There has to be a quicker way to get this
done. Ultimately, the goal is trying to develop a standard of
the FCC that is both constitutionally enforceable and
sufficiently certain so we can focus on preventing these types
of broadcasts rather than simply focus on punishing them.
Thank you, Mr. Chairman.
Mr. Upton. Mr. Walden?
Mr. Walden. Mr. Chairman, I'm going to forego an opening
statement to have more time during the Q and A.
Mr. Upton. Mr. Terry.
Mr. Terry. Thank you, Mr. Chairman. I'm proud to be a
sponsor with you on this bill. I just want to start by saying
that we have an impressive first panel here and they're going
to be asked a lot of questions about how the Janet Jackson
incident could have escaped you and how this could have
happened, but really the reason why we're here today and this
bill was drafted even before Janet Jackson's exposure.
The discussion is much greater than one breast or an F bomb
dropped by Bono. It's about the acceptance by the FCC and maybe
of society, of the spiraling nature of our culture or is it
spiraling downward? Is there a race to indecency? Well, there
is, I believe, at least on radio talk shows and TV shows, but
I'm not yet convinced that society has accepted it or
participates in it more than it just feels like it has no say
so any more and maybe our second panel with the FCC actually is
going to have more effect on TV and radio in the future.
In that respect, just look at the type of programming that
we see on television on network programming. And I read an
article in USA Today on the plane out here yesterday about NYPD
Blue, how they're editing out a 15 second sex scene and the
producer is just outraged at this censorship. And I thought,
you know, that speaks more of the problem than why you two
gentlemen are sitting here today. Because there's a feeling in
the producing and directing and the Hollywood center that
that's what people want in America. Well, I'll tell you what, I
had more complaints in my office about the Super Bowl halftime
show than the number of people that Ti'VOed it and replayed it
back, I'll guarantee you that.
And so I think it's about time that Americans are heard
that the Congress and the FCC stands up and starts enforcing
our indecency standards. NYPD Blue is a great TV show. I enjoy
it, but let's all recognize it will be a great show and I will
enjoy it without a 15 second sex scene that's really frivolous.
And that's where we need to go and encourage the FCC.
So thank you, gentlemen, for being here today.
Mr. Upton. Mr. Doyle.
Mr. Doyle. Thank you, Mr. Chairman. I want to thank you for
convening this hearing today and bringing together this
distinguished panel of witnesses. I look forward to hearing
their testimony and I'm hopeful that it will help us reach a
better understanding of these complex and troubling issues.
I also want to recognize a good friend and someone who is
held in high respect in Pittsburgh, Mr. Dan Rooney, owner of
the Pittsburgh Steelers who is here with us also.
Mr. Chairman, I think it's important that we recognize and
not underestimate the fact that these issues are complex and
not necessarily addressed by any quick or easy solution. In
addition, when it comes to considering the programming being
broadcast on both television and radio these days, the concerns
that we have here on this committee are not partisan ones. I
think all of us, Democrat and Republican, share a sincere
interest in seeing that this broadcast material meets a level
of decency and appropriateness that we, as parents, can live
with and our children can grow with.
One thing that seems to be clear is that the current system
we have to monitor, police and ultimately enforce standards of
indecency does not seem to be working. What's even more
troubling is that the breakdown of the system does not seem to
be a problem with statutory authority as much as it seems to be
an enforcement issue. Let's take the year 2002, for example. In
that year, the FCC received almost 14,000 complaints about 389
different programs, yet only issued 7 notices of apparent
liability for fines. Last year in 2003, the FCC received over
240,000 complaints, about 375 programs, but issued only 3
orders. To me, that seems to be a questionable track record.
And it's not as though we're attempting to impose a rigidly
puritan ethic that doesn't allow for free expression and
creativity and obviously, it is important that we continue to
maintain vigilantly our first amendment freedoms, but it is
also important that we achieve at least a modicum of decency
and even this minimum standard at times seems to be glaringly
absent.
Frankly, I'm not so sure that simply raising the amount of
potential monetary fines, as the bill before us today does, is
all that's required. While it does seem like a necessary first
step, I wonder if we shouldn't do so by allowing for a more
flexible scale that ties the dollar amount of a fine to a
percentage of profit or perhaps a reflection of the share of
rating points for a particular broadcast.
And I further wonder why we can't establish a more
effective and timely method of reviewing complaints and handing
out fines when necessary. You know, when a driver runs a red
light or parks in the wrong spot, their fine is swiftly
established, yet when indecent material is broadcast to
millions of people, our current process can take years to
conclude. Unfortunately, that seems to both allow for and
almost invite further abuse.
I'm also troubled by the fact that there seems to be little
or no attention paid by the FCC to the preponderance of extreme
violence filling our TV screens. One can argue just how harmful
a particular obscenity or swear word may really be, but there
has been numerous studies that have concluded that graphic
violence is extremely harmful, especially to our young children
who are far more impressionable.
For these reasons and others, I'm glad we're holding this
series of hearings and I hope we can utilize the information we
glean to craft legislation that will address these issues in an
even more comprehensive way than H.R. 3717 does.
Mr. Chairman, thank you very much. I yield back my time.
Mr. Upton. Mr. Whitfield.
Mr. Whitfield. Thank you, Mr. Chairman, and I also want to
thank you for holding this hearing and working so diligently to
quickly bring this bill before the subcommittee. Those of us
who have the privilege of serving in Congress represent
approximately 650,000 people, each one of us and I can't think
of any issue in the last three or 4 years that has created more
e-mails into our office than this whole subject matter of the
programming on our broadcasting networks.
And there's been a lot of snickering about some of these
issues and some people view it really as sort of an
insignificant issue, but to the millions of people who have
sent e-mails in on their concern about the programming that
their families see, it's a serious issue and that's why they're
writing. And it has to do with more than the Bono decision or
the Janet Jackson Super Bowl show because there is a lot of
public frustration with the low quality and standards of
television and radio programming and that has been brewing for
some time. From radio shock jocks to popular prime time
sitcoms, our airwaves have been inundated with foul words,
filthy content and suggestive actions.
I disagree with some in the industry who say that these
incidents are so fleeting, or are so insignificant that they
don't really have an impact. Any time a flagrantly
inappropriate word or scene is broadcast into tens of millions
of homes across the nation, in my opinion, that incident ceases
to be isolated or rare.
So Mr. Chairman, I'm pleased that we are proposing to
address this problem through a sharp increase in the fines that
companies pay when they air such material. The American
families are frustrated and many of them feel powerless to do
anything at all about the quality of the programming offered by
the media. And they're ready for someone to take a stand on
their behalf. It is the responsibility of the Congress to take
a stand and I think it is time for broadcasters to literally
put their money where their mouths are.
And so I look forward to working with the subcommittee to
craft a bill that will hopefully address this significant issue
and I yield back the balance of my time.
Mr. Upton. I like those last couple of words. Mr. Rush.
Mr. Rush. Thank you, Mr. Chairman. Mr. Chairman, I also
want to commend you for your leadership on this particular
subject matter and I do intend to work with you very, very
closely as we mark up H.R. 3717.
Like many Americans, I can dismayed and disappointed by the
broadcast of the halftime show of the Super Bowl. It occurred
less than a week from our first hearing on indecent standards
and it seems that the concerns we expressed to the broadcasters
fell on deaf ears. Apparently, we failed to remind the
broadcasters that their licenses are a public privilege and
what is given can be taken away.
Broadcasters have a responsibility to serve the public
interest. That responsibility encompasses protecting children
from indecency from 6 a.m. until 10 p.m. Unfortunately, this
responsibility was breached during the Super Bowl.
As we prepared for a second hearing on this issue, several
thoughts come to mind. Chief among them is the prevalence is
the violence on TV. It's an issue that we haven't heard a lot
about this morning, but it's an issue that is really a priority
of mine and also of my constituents. It seems like the level of
violence and profanity on television has increased year after
year. Standards have been lowered. Statistics show that by the
time the average child who watches 2 to 4 hours of television
per day, by the time that child is 12, that child has observed
8,000 murders and 100,000 other acts of violence all on the
broadcast waves. These statistics are alarming and must be
addressed by the Congress.
For many years, indecent programming and obscenity has
primarily been based on nudity and sexual acts, while violent
programming has been overlooked. Regulating violent
programming, I believe, is in the public interest. We have a
responsibility to protect the psychological and emotional well-
being of minor viewers by reducing the amount of violence they
see on television.
Mr. Chairman, last, I have another issue. We, as a
committee, are all in agreement that something must be done and
something will be done to address the flagrant violations as
occurred not only on the Super Bowl, but in other instances
also. However, I must take issue with one aspect of what I see
and what I hear that is going on. My friend from Nebraska, Mr.
Terry, and others have made comments calling the incident at
the Super Bowl the Janet Jackson incident. Well, where is
Justin Timberlake? I am utterly astonished that Mr. Timberlake
has been given, in my estimation, a proverbial slap on the
wrist while Janet Jackson has been substantially punished. This
seems to me continues a pattern of the double standards that I
fought against most of my life.
I am concerned, Mr. Chairman, and other members of this
committee that both individuals who were party to this act,
that both be singled out and both be dealt with in a way that
will be fair and equitable to all.
Let me just say that historically and I must remind the
members of the committee and inform some who might not know,
that this is indeed--February is annually considered Black
History Month. And with that in mind, I have to tell you that
when I saw this occurrence at the Super Bowl, the kind of
innately reminding me of the kind of atrocities that have been
visited upon not only African Americans, in general, but
African American women, in particular. I know that that's kind
of something we might not have focused on. It's something we
might not want to hear, but I tell you, it reminded me of that.
And this is the kind of the discussions that are being held at
barbershops and beauty shops and in community organizational
meetings in my District.
Thank you, and I yield back the balance of my time.
Mr. Upton. Mr. Pickering.
Mr. Pickering. Mr. Chairman, thank you for this hearing. I
do look forward to hearing from the panel. I appreciate Mr.
Tagliabue and Mr. Karmazin for coming today.
In my work, there are times where I go home at night and
I'm not too proud to be a part of this institution when the
political culture or the political leadership fails its
responsibility or we do not live up to the standards that
people expect. Sometimes I wonder what can be done. But I am a
part of this process and this institution and I have a
responsibility to try to make it better. And in the same way,
you are in very critical influential positions for our country,
for the example that we set, the power and the influence of the
entertainment industry and I hope that this serves as a wake up
call for all of us.
The country does not want what we saw at the Super Bowl. We
want to be a better nation and abetter people, with better
standards. We don't want to be indecent and crass and crude and
profane. You know, my other difficult job is a father of five
sons, ages 14 to 5. And I look at all of the messages that they
get from the media and I wonder and just like Ms. Wilson, how
do we teach our children good values?
I think what you're hearing in this hearing from the
people's representatives is that America really wants to be
better and they want you to do better. It wasn't only Janet
Jackson and Justin Timberlake, but the commercial for two and a
half men hasn't really been mentioned here, but a woman comes
through the kitchen. There's I guess a 7 or 8 year old boy at
the kitchen table. A woman just has a t-shirt on. She reaches
up into the cabinet and exposes her entire back end to an 8
year old boy. That's a prime time, supposed to be Family Hour
sit down. An 8-year old turns to Charlie Sheen and says wow. I
mean is this really--is this something that you're proud of? Is
that something that you want to a part of? Don't you want to do
better?
And I think what we're trying to do is to say to the FCC
enforcement and actions and standards that we're going to make
sure that we do better. And I think it's time for the industry,
both cable and broadcast, to come together and to adopt
voluntary standards of what will be allowed and not allowed. We
will move this legislation and we'll make sure that it has
teeth.
Mr. Chairman, I look forward to working with you on the
possible inclusion of three strikes and you're off. I think
more important than the fees is to know that if you don't live
up to your responsibilities, that you can be replaced and I
think that type of approach is necessary and warranted.
I think for the cable industry, it's time to look at family
friendly unbundled packages of programming so that we don't
have to purchase programs and shows that we don't think are
healthy or good for our families or our children, that it can
be educational and news and sports and family, but it doesn't
have to be the adult or the profane or the crude.
I think that it is time that we move on a very
comprehensive approach to make sure that the FCC can enforce
the standards. It's very important that I think that as a
corporate leader that you voluntarily stand up and do what is
right. And not only to say we will not show what is indecent,
but I think it's also important that in this hearing and from
this point forward that you also set an example of honesty. For
Justin Timberlake say it's a wardrobe malfunction offends
everyone. That's dishonest. We don't want dishonesty or
indecency. We don't want to hear ``we didn't know, we weren't
aware.'' Take responsibility, become decent, be honest. Those
are the virtues and the values and the example of what we
expect in the political culture and the entertainment culture
and in the corporate culture.
And I hope by the end of the day we can say we were part of
doing something that made it better.
Mr. Upton. Mr. Towns.
Mr. Towns. Let me begin by thanking you, Mr. Chairman, for
holding this second hearing on indecency, an issue which has
rushed to the forefront following the incident at the Super
Bowl.
I think it is important to note, Subcommittee Chairman
Upton and Chairman Tauzin and Ranking Member Dingell introduced
H.R. 3717 before the recent controversy. So this is an issue
this committee has been considering for a long time.
Like virtually every one in America, I was disappointed by
the now infamous incident at the conclusion of the halftime
show and to some extent the overall production of the show as
well. It was inappropriate for children and not suitable for a
program that was watched by millions of people of all ages.
While the outrage for this incident was understandable, what
really concerns me is the lack of similar outrage for
gratuitous violence on broadcast television that occurs on a
daily basis.
I strongly believe that such violence has a more harmful
effect on children than the brief exposure provided by Ms.
Jackson could ever have. But we do not have the same outrage
and that really bothers me. I have worked hard to reduce
violence. This has included talking with parents and working
with community leaders to reduce violence in our schools and in
our neighborhoods and supporting foundations that address these
kinds of concerns. I've introduced a bill in Congress to outlay
the sale of realistic toy guns because all they do is whet a
kid's appetite to get a real gun in later years.
Therefore, I strongly believe that violence on television
only has negative consequences. In fact, hundreds of studies of
the effects of TV violence on children and teenagers have found
that children may become immune to the horror of violence,
accept violence as a way of life and the way you solve problems
and exhibit aggressiveness or even imitate the violence they
observe on television. So I ask where is the outrage?
I appreciate the testimony of our witnesses today and I'm
especially interested in whether the FCC has the authority to
address violence under its current indecency standards and
whether it can regulate such harmful images on the pubic
airwaves under the first amendment.
I look forward to answers to all of these questions and to
say to you that while we look at the incident that happened at
the Super Bowl, let us not forget to look at the violence that
we see on our televisions every day and every night that now
have our young people confused about what reality is. They
think if they shoot somebody, they'll be able to appear in the
next episode. On that note, I yield back.
Mr. Upton. Ms. Bono?
Ms. Bono. Thank you, Mr. Chairman. I'd like to thank our
panelists for being here this long. I look forward to your
testimony. I was not going to make an opening statement because
I believe we're all in unison here in speaking with the
outrage.
I believe we are outraged and I believe my constituents are
entirely outraged, but as I sit here I have so many questions
and I definitely have to identify myself with the comments that
were made by Congressman Dingell and that is that the penalties
have to be a deterrent to what you're seeing and what has
happened. Hollywood has long been about, and the success of
Hollywood has long been about us pushing ourselves and pushing
the envelope or pushing the limit. I was married to an
entertainer and I have a family, an extended family that is
still in this business and we know that this is about pushing
the envelope. The American people have finally said enough.
You've pushed it too far. And the truth is the bottom line
corporate profit is what this is about at the end of the day.
Janet Jackson, as I understand, came out with a new album. Wow,
surprise, surprise. And here we are in Congress talking about
this stupid stunt that she pulled which appalls me even further
it plays right into what she was doing.
But it goes down to the great song by--and Mr. Markey can
sing it for me--by the group Traffic. ``The man in the suit has
just bought a new car off the profit he's made off of your
dreams.'' And that's what this is about. There are thousands of
talented, qualified artists who could have been out there and
you all knew, as I understand, MTV was promoting something
spectacular would happen at halftime. And I look forward to
delving into this a little bit further during the question and
answer period. But that's the truth. And the truth is there is
outrage and Congress is going to stand up. We've been here in
unison today and said enough is enough.
Mr. Chairman, I applaud you for your timely legislation and
the way in which you're moving it and I look forward to working
with you and I yield back the balance of my time.
Thank you.
Mr. Upton. Mr. Wynn.
Mr. Wynn. Thank you, Mr. Chairman, and in the interest of
hearing from our witnesses, I'm going to defer at this time.
Mr. Upton. Ms. Cubin.
Ms. Cubin. Thank you, Mr. Chairman. Well, in the words of
our esteemed 40th President of the United States, Ronald
Reagan, ``here we go again.'' It was just 2 weeks ago that we
heard testimony about the indecency standard, the utterance of
the F word and how the bill before the subcommittee would
affect the increasing cases of indecent broadcasts. Just later
an event occurred that upped the ante in the debate on what
should and should not be broadcast over the public airwaves.
The exposure of Janet Jackson's breast during the Super
Bowl halftime show smacked of shameless self-promotion as my
colleague from California just stated. I also agree with my
colleague, Mr. Rush, that Justin Timberlake deserves more than
just a slap on the hand. I think it takes two to tango and I
think only a sleazy person, a sleazy man would allow Janet
Jackson to take the full blame.
However, as Mary said, no one was talking about Ms.
Jackson's upcoming CD a week before the Super Bowl and now
she's all over the news and her new disk could end up be a
chart topper. Are we the suckers in all of this? I think so.
Should we continue to adhere to the status quo which is
dangerously close to adopting the F word as an allowable
adjective or is enough enough?
Judging by the response that I've gotten from my
constituents, the decency line has been pushed too far for
Americans to stomach. Now as a Member of this body, I have
taken an oath to uphold the Constitution which is the most
important protector of our right to speak freely. I'm also
aware that there are limitations on a citizen's right to free
speech. For example, you can't shout ``fire'' in a crowded
theater. These matters are difficult to reconcile, but I think
Chairman Upton's bill is narrowly tailored enough to be
effective in curbing or stopping indecency without having the
government in the business of censoring programs.
By just discussing the increase in penalties that can be
applied for the indecent broadcast, we are seeing a wave of
market base corrections to the heretofore status quo and that's
a good thing. With networks scrambling to adhere to some common
sense protections like implementing delays on live broadcasts,
we see there is a will to address this public outcry and I am
glad of that.
I am just sorry it's taken this committee's action and an
incident that happened at the halftime of the Super Bowl to
spur that positive change.
Thank you, Mr. Chairman, and I yield back the balance of my
time.
Mr. Upton. Mr. Engel.
Mr. Engel. Thank you, Mr. Chairman. We've heard a lot of
talk from Members of Congress this morning and when this
happens I think of the adage which declares that all that needs
to be said has been said, just not everyone has said it. So I'm
going to cut my remarks. I want to thank you for holding the
hearing so we can hear what the witnesses have to say. I thank
you, gentlemen, for having the guts to testify and I look
forward to your testimony and you can see the most difficult
part is not your testifying, it's having to listen to all
before you can actually get to testify.
Obviously, this is a serious matter. I don't think Congress
should grandstand what happened at the Super Bowl. It was
obviously offensive, but all indications are that Janet Jackson
and Justin Timberlake did this without anybody's prior
knowledge and they certainly ought to be ashamed, but I don't
know that anybody frankly at CBS could have known or should
have known of what would have happened.
My solution to this, to ensure that things would never
happen again would be a 7 second delay. We've talked a lot
about it and I'd be interested in hearing what the panelists
would think about that.
Obviously, we want to work with the industry to find ways
that broadcast television can continue to flourish, but at the
same time find that balance that allows families to comfortably
watch TV at night. Some of my colleagues have said we have to
address violence and we do, as well as some of the sexually
explicit material. Obviously, we have first amendment rights. I
always struggle with this. New York, where I'm from, the
community standards are different from those of Omaha, Nebraska
where my colleague, Mr. Terry, is from. I know that some of the
shows to which I may object are highly rated and watched by
millions of Americans. So I think that Congress ultimately has
to sit down with the industry and come up with standards.
Again, I don't think grandstanding is the way to go. I think we
all need to put our heads together. There is a solution to this
and I look forward to hearing the gentlemen's testimony to hear
what they might have to say.
I yield back, Mr. Chairman.
Mr. Upton. Mr. Deal.
Mr. Deal. I pass.
Mr. Upton. Mr. Gonzalez.
Mr. Gonzalez. I waive opening, thank you, Mr. Chairman.
Mr. Upton. Ms. Solis.
Ms. Solis. Thank you, Mr. Chairman. I want to also thank
you for the opportunity to be able to sit here and listen to
statements made by you and my colleagues.
While I don't sit on this subcommittee, this is a subject,
obviously, that affects all of us. I come from a small District
out in Los Angeles and we have varying degrees of different
programming much of which I've questioned for many years,
particularly on Spanish language television where we see
oftentimes indecent exposure on many occasions and it's somehow
allowed to go on. But the real issue here for us, I think, is
to hear what we can do to change behavior and hopefully rectify
this and work with the different bodies here that I think have
heard very loud and clear that there needs to be some changes
made.
So I would just respectfully submit my statement for the
record, and thank you, Mr. Chairman, for allowing me the
opportunity to be heard.
Mr. Upton. Thank you. Again, I would remind all members
that their opening statements will be included as part of the
unanimous consent request.
We are now finished with opening statements, in case
anybody comes in that door.
[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 to examine
H.R. 3717 with respect to the FCC's enforcement role in preventing
broadcast indecency.
As the frequency of indecency invading our radio and television
airwaves continues to increase, my constituents in the Fifth District
of Ohio have sounded out with great disdain. I have received over 500
emails regarding the use of the expletives on television and several
hundred more emails regarding the Super Bowl halftime show performance.
Many of these messages detail the stories of young people exposed to
the shocking actions of a few performers. I am confident that their
accounts will be echoed by my colleagues as examples of the damage this
type of programming can cause.
The Super Bowl performance, combined with the offensive language
used at awards shows in the past year, have resulted in bringing the
very important issue of broadcast indecency to a focal point in
American society. The deplorable actions displayed during the exploits
of Janet Jackson and Justin Timberlake were the culmination of a
sexually revealing and embarrassing halftime show complete with
inappropriate groping and self-gratification.
I would like to thank the Chairman of the Federal Communications
Commission (FCC), Michael Powell, for his swift condemnation of the
Super Bowl XXXVIII Halftime Show festivities as well as his commitment
to raising the penalties for broadcast indecency. I look forward to
examining the disregard by performers and programmers to deliver the
decent and quality broadcasting that consumers demand and deserve.
I commend my colleagues on their quick legislative action. In
particular, I thank Chairman Upton and Ranking Member Markey's efforts
and am proud to be an original cosponsor of HR 3717, the Broadcast
Decency Enforcement Act of 2004. The effort to increase FCC penalties
ten-fold for obscene, indecent, or profane broadcasts is consistent
with the will of the citizens of Ohio's Fifth District. I am also
anxious to debate the possibility of making this measure even stronger.
I look forward to hearing from the well-balanced panel of witnesses
regarding standards of decency at future live television performances.
In addition, I look forward to examining the scope of the pending
legislation as well as proposals for furthering the penalties available
to the FCC. Again, I thank the Chairman and yield back the remainder of
my time.

______

Prepared Statement of Hon. W.J. ``Billy'' Tauzin, Chairmrn, Committee
on Energy and Commerce

Thank you, Chairman Upton, for holding another excellent hearing on
the issue of broadcast indecency. In light of everything that we've
seen and heard on the airwaves recently, this hearing is perfectly
timed.
It seems Americans have received the proverbial one-two punch from
broadcasters recently. First, viewers were bombarded with some
descriptive expletives rarely heard on television during some live
award shows. Second, and even more egregious, was the now infamous
``wardrobe malfunction'' during the Super Bowl halftime show that was
broadcast to 100 million people. Certainly, the Super Bowl, ``America's
game,'' watched and loved by children and families across the country,
was not the most family-friendly viewing of the evening. And that's
saying a lot when the ``Lingerie Bowl'' was a viewing alternative.
Understandably, parents were outraged. They were outraged because
nudity was not what parents expected with they tuned in to watch the
Super Bowl--they rightly predicted a football game with some age
appropriate entertainment during halftime. But clearly that's not what
parents got. So it should come as no surprise that families are
increasingly concerned with the rapid decline in language and material
being broadcast on television and radio.
Broadcasters are trustees of a public resource worth billions of
dollars, which they get for free, in return for a pledge to act as a
responsible steward of the airwaves. Unfortunately, many Americans feel
that pledge is not being honored. So we are getting to a point, between
Super Bowl halftime shows and live awards programs, where constituents
and Members of Congress will be calling not just for increased
financial penalties, but for more drastic remedies, such as license
revocation. That is the fate of the broadcaster if the industry does
not do a better job policing itself.
I am hopeful that H.R. 3717, the ``Broadcast Decency Enforcement
Act'' will help take the industry in the right direction. I am
heartened that this bill is already doing what it was intended to do--
change the way the industry is doing business. Since this bill has been
introduced, all of the networks have opted to use delays on their live
award show broadcasts. The Grammy Awards, recently broadcast on CBS,
had a full 5-minute delay. As shown with a recent episode of ``ER'',
affiliates are also taking a close look at the content of the shows
being broadcast into their local communities.
H.R. 3717 is a strong first step. The bill is consistent with the
goals of strengthening the FCC's hand at combating indecent material on
broadcast television and radio, and upholding the rights of
broadcasters under the First Amendment. But I ask that as we move
toward subcommittee markup of H.R. 3717, that we continue to be mindful
of the delicate balancing act required under the First Amendment.
I want to applaud Chairman Upton for the excellent lineup of
witnesses we have before us today. I want to welcome National Football
League Commissioner, Paul Tagliabue, and President and CEO of Viacom,
Mel Karmazin. In addition, we are pleased to have all five FCC
Commissioners here to testify. I hope we hear today from the FCC is
that it plans to more aggressively use its current enforcement
authority on behalf of American families. With the addition of H.R.
3717 to your current bag of enforcement authority, I am convinced we
can make a difference in what our children see and hear over the
broadcast airwaves.
Thank you, Mr. Chairman. I yield back my time.

______

Prepared Statement of Hon. Bart Gordon, a Representative in Congress
from the State of Tennessee

Mr. Chairman, As a parent of a small child, I am increasingly
concerned by the raunchy language, sex and extreme violence I am seeing
on TV and radio. The super bowl stunt with Justin Timberlake and Janet
Jackson is just the tip of the iceberg. I have heard from hundreds of
constituents in the past few months who share my concerns. They feel
frustrated and angry that their complaints are not being heard by the
broadcasters or the FCC.
We don't have to accept that there is nothing we can do about this
situation. A free public broadcast licence is a privilege and it comes
with an obligation to serve the public interest. And we have
longstanding laws on the books regulating obscenity, indecency and
profanity over the public airways that have passed constitutional
muster. I see no reason for Congress or the American people to have
accept the amount of objectionable content that is being broadcast over
the public airways and into the privacy of our homes, particularly
during the hours children are watching. I see the problem as two-fold.
First, the current indecency fines are drop in the bucket for
multimillion dollar corporations. I support increasing the fines so
that they are meaningful deterrents, not merely a slap on the hand. I
am working with my colleague Rep. Gene Green (D-TX) on an amendment to
ensure that these fines go to the entities responsible for the content,
and not the local TV affiliate who has no ability to alter the network
programming.
Second, while I am encouraged by the Commission's new found
interest in levying fines, the fact is it does not have a good record
responding to the public's growing concern about indecency over the
public airways. According the FCC's own numbers, 240,000 complaints
concerning 375 different programs were made to the agency in 2003. But
only three notices of violations were issued. And in 2002, only two
fines were levied. The FCC moves so slow that it is not uncommon for
the statute of limitations to expire before the FCC gets to complaints.
And when fines are issued, they frequently go unpaid.
I look forward to hearing from today's witnesses. In particular, I
would like to know what the Commission intends to do to step up its
indecency enforcement efforts and make the process more responsive to
the public. I63

Prepared Statement of Hon. Peter Deutsch, a Representative in Congress
from the State of Florida

Thank you, Mr. Chairman, for holding this hearing.
Mr. Chairman, today is really a continuation of this subcommittee's
work surrounding the issue of broadcast indecency. Since our last
hearing, however, this issue has been not only debated by Members of
Congress, policy wonks and lobbyists, but by most of the 100 million
people who viewed CBS's broadcast of the National Football Leagues's
Super Bowl XXXVIII half time show.
Under the Communications Act of 1996, Congress empowered the FCC to
fine any licensee who broadcasts ``obscene, indecent or profane
language.'' Regretfully, procedural barriers and a reluctance by the
Commission to exercise its authority prove frustrating in the effort to
protect our children from harmful and indecent material.
As a cosponsor of the Upton/Markey legislation which this
subcommittee will mark up tomorrow, I fully support this initiative
which increases the forfeiture penalties the FCC may levy for obscene,
indecent or profane broadcasts. Additionally, I feel this committee
should expand on its efforts to define the FCC's role regarding
indecency by debating the merits of the FCC actively monitoring the
networks and imposing automatic triggers for licensing revocation
hearings. Common sense, it seems, has finally intervened as most of us
here today agree that voluntary efforts are not the answer. I look
forward to the testimony we will hear today.

Mr. Upton. We are very grateful to have our first panel
testify this afternoon. We are joined by Mr. Paul Tagliabue,
Commissioner of the National Football League and Mr. Mel
Karmazin, President and CEO of Viacom. I appreciate your
testimony in advance. Many of us were able to read it last
night. I would note that your testimony is part of the record
in its entirety. We'd like you, if you can, to limit your
remarks to about 5 minutes.
Mr. Tagliabue, we'll begin with you, welcome. You need to
hit that mic.

STATEMENTS OF PAUL TAGLIABUE, COMMISSIONER, NATIONAL FOOTBALL
LEAGUE; AND MEL KARMAZIN, PRESIDENT AND CHIEF OPERATING
OFFICER, VIACOM, INC

Mr. Tagliabue. Thank you very much, Mr. Chairman and
members of the subcommittee. I want to introduce Mr. Jerry
Richardson and Mr. Dan Rooney who are behind me. Mr.
Richardson's family owns the Carolina Panthers team which was
in the Super Bowl game and Mr. Rooney's family owns the
Pittsburgh Steelers team which had the distinction of winning,
I think, four Super Bowls at one point. And he's anxious to be
back there.
We have all spent, all three of us, have spent most of our
adult lives trying to make the National Football League a
powerful and positive influence in American life, especially
for young people. Mr. Rooney has been involved with the
Steelers for 50 years, I think. He doesn't look that old. His
family has owned the team for 70 years. Mr. Richardson is
unique in our League in that he's the only owner who played in
a championship game as a player for the Baltimore Colts in 1959
and 2 weeks ago had his team, the Carolina Panthers, in the
Super Bowl game. So we're all parents and we're all
grandparents.
I can say for them and for myself and for the other 30
owners that we are deeply embarrassed by what happened at the
Super Bowl halftime and we more importantly are determined to
make certain it does not happen again. When we step back and
look at what went on the air, it's the most perverse outcome
that we could imagine because due to my own ineptitude and the
ineptitude of others the super performances of our athletes,
Tom Brady, Jake Delhomme and others and maybe the most
thrilling Super Bowl game we've ever had have been totally lost
in the wilderness of Hollywood and musical entertainment. I can
assure you that's not what we were trying to accomplish and
certainly not what CBS Sports was trying to accomplish with our
Super Bowl telecast.
So let me turn to sort of a summary of my prepared
statement, Mr. Chairman, and as you suggested, I'll try to get
through it within the time constraints that the committee has.
Needless to say, I'm very pleased to be here today. We've
always taken pride as a League in the quality and popularity of
our television programming and in the way that the National
Football League brings families and communities together. We
have a 30-year plus tradition with the United Way and many
other traditions at the team level, we think demonstrate what
we're about.
We're aware of the special character and place of our sport
for many millions of Americans and the unique character of the
Super Bowl game itself which for better or worse has become an
unofficial midwinter national holiday.
Super Bowl XXXVIII which was played on February 1 in
Houston, represented the finest football entertainment that our
League and our teams offer. It also featured a halftime show
that departed sharply from our views and I believe CBS's views
of what constitutes high quality and acceptable entertainment
for the NFL and CBS Sports which have a 40-year tradition of
working together and having worked together quite remarkably, I
think.
The 12 minutes of the halftime properly resulted in
significant criticism of all who were involved with the
halftime show and we take our share of the responsibility and
the blame. At the outset, I would note that while MTV produced
the halftime show, it did so under a contract with the National
Football League. As I say, we accept our responsibility for
having entered into the contract and for what resulted from it.
When we agreed to have MTV produce the halftime show, based
on our prior, positive experience with MTV 3 years ago with the
Super Bowl, we expected a show that would feature high energy,
outstanding and diverse musical entertainment that would appeal
to more than 100 million Americans who would be watching some
portion of the Super Bowl telecast.
Unfortunately, the show that MTV actually produced which we
had reviewed in advance fell far short of the NFL's
expectations of tasteful, first class entertainment. In my
statement, our statement issued minutes after the halftime,
during the early part of the third quarter of the game, we made
clear that we were deeply disappointed and offended by the
inappropriate content of the show. And my disappointment, our
disappointment went well beyond the Janet Jackson-Justin
Timberlake stunt that has garnered so much attention. Since the
Super Bowl, we have thoroughly reviewed this matter. I guess I
could add, since the beginning of the third quarter, I've been
reviewing this matter.
I'll summarize here the answers to three questions which I
think will provide the subcommittee with a better understanding
of what occurred and what we are doing to ensure that it does
not happen again.
The first question is in planning the musical entertainment
at the Super Bowl including the halftime show, were we and CBS
striving to have high quality programming that was tasteful and
reflected the special place of the NFL and the Super Bowl in
American life? The answer to this, I think, I know on our
behalf and I'm quite certain on CBS' behalf is yes. We were
trying to do something positive that would reflect very well on
both our League and CBS Sports.
We selected MTV to be the halftime entertainment producer
for this year's Super Bowl because at CBS' request, MTV had
produced a first rate Super Bowl halftime show for our game in
January 2001. However, on key aspects of the planning for the
2004 game for the show, we found MTV to be difficult to work
with, resisting disclosure of its planning at certain points or
input or oversight from our office and others.
As a result of this concern in mid-December, I personally
discussed the type of Super Bowl halftime entertainment that we
desired to have with CBS' Chairman and Chief Executive, Les
Moonves, for whom I have tremendous respect. I emphasized our
concerns also with MTV executives in a meeting in early January
because I believed and I continue to believe today that CBS
shared our goal of having a positive halftime show that would
bring credit to both the NFL and CBS.
When I spoke to Mr. Moonves in mid-December, I emphasized
that the focus needed to be on the NFL and CBS Sports and our
audiences of sports fans on Super Bowl Sunday, not on the much
different and far narrower MTV audience. I mentioned that I
thought we had a common interest in this, based on 40 years of
working together and that CBS Sports was more than the NFL and
more than football. It was college basketball, it was many
great things. And I felt we had a common interest here to get
things right.
Our audience is 8 to 80 or beyond and we didn't want
anything to happen that would compromise the reputations of
either the NFL or CBS. I mentioned to Mr. Moonves that we had
been embarrassed by a tawdry element of the season kickoff
event on the Mall last September in a performance by a singer
and I did not want the halftime show to be the cause of any
further embarrassment and I'm sure I used the word grief. Mr.
Moonves said he shared my views and would personally see to it
that the halftime show would be appropriate and not embarrass
either the NFL or CBS and I say all that just for background. I
take the responsibility for what happened and I'm not trying
reallocate responsibility to anyone else including Les Moonves.
But that's the context.
Second, based on our discussions with CBS and MTV did we
have a realistic expectation that MTV would produce a tasteful,
satisfactory Super Bowl halftime show? Again, I believe the
answer is yes. We had numerous discussions about the talent.
When I say ``we'', most of this is our staff and their staff,
but I did get personally involved, as I mentioned, as is
recounted in my prepared statement. We had numerous discussions
about the talent that would appear. Given her recent hit song,
``Rhythm Nation'', we were pleased that Janet Jackson would be
a featured artist. The song is really about tolerance. It's an
almost up-to-date version for us old folks of some things that
Joan Baez and others used to sing when we were younger. We knew
that Kid Rock had joined with NFL players on a USO trip last
summer to entertain troops in Iraq and Kuwait and he had done
extremely well. He would help anchor the musical lineup.
So we felt comfortable with talent such as that. We had
flatly rejected a number of other performers because we felt
their music, their personal conduct or both made them
inappropriate in our view for the halftime show.
I think if you try to see what we were trying to
accomplish, consider the pregame entertainment both on the
network and in the stadium which was televised by CBS. I know
some of you were there at the game watching what was going on,
including on TV monitors. CBS has a great piece by Dick Enberg
about the astronauts since the game was on the first
anniversary of the loss of the Columbia Shuttle, just by
complete coincidence. Lesley Visser had a great piece about
Jake Delhomme and small town America and his roots in the Cajun
country in Louisiana.
We both presented Willie Nelson and Toby Keith, the Spirit
of Texas. We had Hispanic music to emphasize the diversity of
Houston and of Texas. We had wonderful pregame entertainment by
Aerosmith, by Josh Groban in tribute to the astronauts and we
had a stirring rendition of the anthem by Beyonce who was
accompanied by a military guard which included the Vice
Chairman of the Joint Chiefs of Staff.
I think that was--CBS and the NFL--I know that's what we
were trying to accomplish for the whole day in terms of
entertainment.
So how did we fail to get there? That's the last question
in my statement. It's the last question I'll speak to now.
In the immediate weeks and days preceding the Super Bowl
were our standards and procedures for reviewing the halftime
entertainment as timely, exacting and effective as they should
have been, and if so, how did the halftime show turn out to be
unsatisfactory, offensive and embarrassing to us? In hindsight,
the answer is clearly no. Our standards and procedures were not
as exacting and as effective as they should be.
From last fall until the dress rehearsal 3 days before the
game and there was only one dress rehearsal, we were operating
in an environment where MTV had produced a quality halftime
show 3 years ago and where senior MTV officials had assured our
staff and me that they knew what they had to produce for the
audience of the NFL and CBS Sports being well over 100 million,
including many families. Those assurances extended beyond
comments made to our executives and included public statements
as well.
Just the day before the game, on Saturday, January 31, I
read in The New York Times an article about how our Super Bowl
halftime had evolved over the years and it included a statement
from the co-producer of the MTV halftime show which was to the
effect that we had made our views clear to MTV and the message
that they had from us was and this is a quote of the MTV
executive ``know who the audience is. MTV is 12 to 24 and the
NFL is 18 to 80. It's a little bit different from what we do
but we know our role.''
Having read that, I can tell you that when I went to the
game I was a heck of a lot more concerned about security and
other things than I was about the halftime show. As it turned
out, the most significant breach of security was the streaker
and the halftime show was extremely bad.
But based on a lengthy course of dealing with CBS and MTV,
we somehow persuaded ourselves that we and they were fully on
the same page and that the Super Bowl halftime show was going
to be satisfactory. Clearly, there's a wide gap between our
view and MTV's view of what was appropriate. We should have
recognized it earlier.
In our statement issued during the third quarter of the
game, we made clear that we were deeply disappointed and
offended by many elements of the show, not just the closing
stunt and I think the subsequent statements by MTV go in the
opposite direction.
While we made our views about the halftime entertainment
clear and ruled out talent and content that we found
objectionable or risky, we certainly did not in the end retain
or assert sufficient control over the final character, content,
lyrics, choreography and other critical elements of the show
and for that we take responsibility.
Reflecting on it, I feel like we gave the keys to the car
to someone else for them to drive without assuring ourselves
that they knew how to drive safely and the car crashed.
So let me reiterate what I said after the game. We will
make the necessary changes in our operations to ensure that
there is no repeat of this kind of performance. We will work
very closely with our broadcast network partners, CBS, Fox and
ABC who televise the Super Bowl in rotations to accomplish
this. I'm sure we will get complete cooperation from them.
The changes that we will make will go well beyond simply
resolving not to work with MTV in the future and being wiser in
our own dealings with others. As I said on Monday morning after
the game, we will change our policies, our people and our
processes for managing halftime entertainment to make sure we
get it right.
I'm going to conclude with one final simple thought which
may be the most important of all. We in the NFL have always
recognized that we must hold ourselves to very high standards,
not only for our game, but for everything we do, especially
things related to our game including the Super Bowl. For NFL
fans, the NFL is the game of football. We strongly support
football at all levels, including youth levels, and view the
game as a positive force for millions of people in our society.
Going forward, our intention is to be what we are, the game
of football and not to succumb to pressures to become something
else. Our further goal is to ensure that the League and its
teams continue to be a respected, influencing organization in
America and for millions of Americans.
Mr. Chairman, thank you very much for having us and for
having me and Mr. Rooney and Mr. Richardson, and I guess
vicariously our other 30 owners and we're pleased to be here to
answer the committee members' questions.
[The prepared statement of Paul Tagliabue follows:]

Prepared Statement of Paul Tagliabue, Commissioner, National Football
League

Chairman Upton and Members of the Subcommittee: I am pleased to
appear before you today as you consider H.R. 3717, the Broadcast
Decency Enforcement Act of 2004. The specific features of the Bill
apply to broadcast stations and networks, and the NFL therefore does
not take a position on the bill itself. In a broader sense, however,
H.R. 3717 addresses a matter of fundamental importance to our League,
our thirty-two teams, and our fans, and which affects both producers
and broadcasters of entertainment programming alike.
The NFL has always taken great pride in the quality and popularity
of its television programming, and in the way that NFL games bring
families and communities together. We are aware of the special
character and place of our sport and our league for many millions of
Americans, and of the unique character of the Super Bowl game itself.
We know that many millions of Americans view NFL football--and
football generally--as representing traditional and important values of
teamwork, achievement, sportsmanship and fair play. Each year NFL games
continue to be viewed--by a wide margin--by the largest television
audiences of any American sporting event. This is so not only during
the League's regular season on Sundays and Monday nights, but also on
special occasions--such as Thanksgiving Day--and our playoff games.
Above all, we recognize that the Super Bowl itself has come to be
an unofficial mid-winter national holiday; that the Super Bowl has a
unique place in millions of American homes; and that many of the most
watched television programs in American history have been Super Bowl
games. With respect to sports television specifically, 18 of the top 20
highest rated television programs have been Super Bowl games--the only
two exceptions involving the 1994 Winter Olympics.
Super Bowl 38, which was played on February 1 in Houston,
represented the finest football entertainment that the NFL offers. It
also featured a halftime show that departed sharply from the NFL's
views of what constitutes high quality and acceptable entertainment,
and which has properly resulted in significant criticism of all who
were involved with that show. It has also highlighted the concerns
previously expressed by the FCC and many members of Congress.
At the outset, I would note that while MTV produced the halftime
show, it did so under a contract with the NFL. We accept our
responsibility for having entered into that contract and for what
resulted from it. When we agreed to have MTV produce this year's
halftime show, we expected a show that would feature high-energy,
outstanding and diverse musical entertainment that would appeal to the
more than 100 million Americans who would watch some portion of the
Super Bowl telecast, and that would be free of the controversial
elements that have generated well-grounded complaints from so many
viewers.
The show that MTV actually produced this year fell far short of the
NFL's expectations of tasteful, first-class entertainment. In our
statement issued immediately after the halftime show, we made clear
that we were deeply disappointed and offended by the inappropriate
content of the show. This disappointment goes well beyond the Janet
Jackson-Justin Timberlake stunt that has garnered so much attention.
Since the Super Bowl, we have engaged in a thorough review of this
entire matter. In the course of my testimony today, I will summarize
our findings.
Let me address three questions, the answers to which I think will
help the Subcommittee better understand what occurred on Super Bowl
Sunday and what we are doing to ensure it does not happen again.
First, in planning the musical entertainment at the Super Bowl,
including the halftime show, were we and CBS striving to have high
quality programming that was tasteful and reflected the special place
of the NFL and the Super Bowl in American life?
The answer to this question is ``yes.''
We selected MTV to be the halftime entertainment producer for this
year's Super Bowl because, at CBS's request, MTV had produced the Super
Bowl halftime show for our game in January 2001--and MTV had at that
time produced both a quality show, and other quality programming during
the Super Bowl weekend. This year, we were again dealing with MTV
because of its affiliation with CBS. (In addition to the halftime
entertainment, our Super Bowl day programming on CBS included two other
one hour programs produced by CBS-affiliated companies--Nickelodeon and
MTV--which were televised between 12:00 Noon and 2:00 P.M. EST.)
Our halftime entertainment in recent Super Bowls has been tasteful
and tailored to our wide Super Bowl audience. We have had a wide range
of talent, from an 80-member choir, to Clint Black, to Tony Bennett, to
Diana Ross, the Blues Brothers, and Stevie Wonder and Gloria Estefan.
(A full listing of the halftime entertainment at all Super Bowls is
attached to my statement.)
Since the September 11 terrorist attacks and the beginning of
military combat in Afghanistan and Iraq, we have made special efforts
to ensure that all aspects of the Super Bowl, including special events
and game-day programming, have been fitting and appropriate. For
example, for the Super Bowl immediately after the September 11 losses,
we made certain that the entertainment at the January 2002 Super Bowl
(televised by FOX) properly reflected the Nation's mood and the losses
that the Nation had suffered. We thus developed a program that included
the Boston Pops orchestra with a performance of Aaron Copland's
``Lincoln's Portrait,'' featuring taped appearances by former
Presidents Ford, Carter, Bush and Clinton, and Former First Lady Nancy
Reagan on behalf of her husband. The halftime show in that game was an
extremely well-received tribute to those lost on September 11th
performed by U2.
Despite our earlier satisfactory experience with MTV, a number of
contentious issues arose late last Fall relative to key aspects of the
planning for the halftime show for the game in Houston on February 1
this year.
As a result, it became necessary for senior NFL executives to speak
directly to their counterparts at CBS Sports, and to convene four-way
discussions among the NFL, MTV, CBS Sports and AOL, the halftime
sponsor. By mid-December, these discussions had not resulted in a
satisfactory resolution, and our senior executive staff was seriously
considering terminating MTV as the producer of the halftime show.
At that time, our staff recommended that I should review the type
of Super Bowl halftime entertainment that we and CBS desired to have
with CBS Chairman and Chief Executive Officer Les Moonves.
I did so on December 16, 2003, and I believed after that
conversation--and continue to believe today--that CBS clearly shared
our goal of having high quality, broadly acceptable halftime
entertainment that would bring credit to both the NFL and CBS Sports.
We were, in short, on the same page with respect to the halftime
entertainment.
Specifically, I emphasized to Mr. Moonves that the focus of the
halftime entertainment needed to be on the 100 million plus fans of the
NFL and CBS Sports on Super Bowl Sunday, not on the far different and
much smaller MTV audience.
I also emphasized the special character of the Super Bowl, both
generally and for this year's game in Houston. Uniquely, the game was,
by complete coincidence, being played on the first anniversary of the
loss of the Columbia Space Shuttle and the Columbia astronauts, and we
were playing in Houston--the home of the space program (the Johnson
Space Center); we had been working with NASA and other government
officials for most of the past year to ensure that the day of game, in-
stadium events would include elements commemorating the loss of the
astronauts and paying tribute to the other heroes of space; we were
still at war, both with terrorists and in Afghanistan and Iraq, with
thousands of U.S. troops in both countries connecting to home by
watching the Super Bowl telecast; we would honor the military
servicemen and women in the pre-game, hopefully with an appearance by
the Chairman of the Joint Chiefs of Staff; and former President Bush
and Mrs. Bush were generously involved--as Houstonians--in welcoming
the Super Bowl to Houston and were expected to attend the game.
Finally, I noted that the League had been badly embarrassed in a
concert at the National Mall in Washington kicking off the 2003 season
by an unexpected, tawdry segment involving the singer Britney Spears,
and I did not want any repeat of anything like that in the Super Bowl
halftime entertainment.
This explanation of my goals for the Super Bowl entertainment
reflected decisions we had already made to avoid controversy arising
out of game-related televised musical entertainment. Specifically, we
had already decided not to have musical entertainment--televised or
not--during the halftimes of our two Conference Championship games
played in mid-January this year, even though the games are televised by
CBS and FOX and would attract very large audiences. This decision was
based on our judgment that previous Championship Game musical
entertainment had generated criticism and created unnecessary risks of
ill will with our fans and the public generally.
Second, based on our discussions with CBS and MTV, did we have a
realistic expectation that MTV would produce a tasteful, satisfactory
Super Bowl halftime show?
Again, I believe that the answer is ``yes.''
Our staff had numerous discussions about the talent who would
appear in the halftime show. Our staff agreed that Janet Jackson would
be the featured artist and believed that Kid Rock, who had joined NFL
players on a USO trip last summer to entertain troops in Iraq and
Kuwait, would be a positive addition to the musical lineup. Our staff
had also flatly rejected a number of other performers suggested by MTV
because their music, their personal conduct, or both made them
inappropriate for the Super Bowl audience.
In early January, 2004, we again sought to ensure that the MTV-
produced halftime entertainment would be satisfactory and without
controversy. Specifically, along with our key staff involved with
presenting the Super Bowl, I attended a meeting on January 9 with the
producers of the Super Bowl pre-game entertainment (Best Productions)
and with MTV representatives. At this session, we again emphasized the
importance of focusing on the mass nature of the Super Bowl audience;
the MTV representatives confirmed that they understood our desire to
have a halftime show that would be well received by a Super Bowl
audience, and gave an overview of the halftime entertainment that was
being developed to accomplish this. They emphasized that all of the
elements were not yet in place but would be carefully tailored to meet
the NFL's concerns--starting with the use of two, nationally-renowned
college football bands to start the halftime show, and including Janet
Jackson's ``Rhythm Nation''--which was described as a serious song with
a message of tolerance.
Three days prior to the Super Bowl, January 29, our staff attended
the halftime show's one ``dress'' rehearsal, along with representatives
of MTV and CBS. It is fair to say that the most objectionable aspect of
the halftime show was not rehearsed. Nonetheless, there were a number
of elements of the show that disturbed our staff, and they promptly
communicated those concerns to MTV officials, both orally and in
writing. Our staff specifically identified concerns with lyrics,
costumes, and the use of the Flag by Kid Rock. One of the MTV
executives in charge of producing the show ended a detailed e-mail
exchange by saying
``I know you are worried, but we are all aware of what we need
to do and will address all you [sic] concerns above.''
In evaluating what our goals were with respect to Super Bowl
musical entertainment, it is instructive to consider the Super Bowl
pre-game show, produced on the field by the NFL with a third party and
on television by CBS. The pre-game show featured a tribute to the
Nation's space program in a performance by the classical artist Josh
Groban. It recognized the musical traditions of Texas by featuring both
country music stars Willie Nelson and Toby Keith and Hispanic artists
Mango Punch. And it concluded with a moving and elegant performance of
our National Anthem by Beyonce Knowles.
That was the kind of show that we sought and expected at halftime.
Third, in the immediate weeks and days preceding the Super Bowl
were our standards and procedures for reviewing the halftime
entertainment as timely, exacting and effective as they should have
been--and if so, how did the halftime show turn out to be
unsatisfactory, offensive and embarrassing to us?
In hindsight, the answer is clearly ``no,'' our standards and
procedures did not accomplish what they should have.
Having reviewed these events, I now recognize that we in the NFL
did not conduct ourselves in our dealings with CBS and MTV in a manner
that guaranteed that the Super Bowl halftime entertainment would be
acceptable to a mass audience, including many families, and most
important, consistent with the standards we had set for ourselves. Our
people and our management procedures did not provide the necessary
assurance that the halftime entertainment would be appropriate to the
very special place of the Super Bowl game in American sports, the
unique circumstances of presenting such an event at this time in
American life, and on a special day of remembrance of fallen astronauts
in the city (Houston) that was both home to the space program and host
to the Super Bowl game.
Some of the reasons for this seem relatively clear; others still
need to be ascertained through further review, with additional
perspective and certainly with greater clarity. Clearly, too much
credence was given to our staff's experience with MTV in producing a
quality halftime show three years ago.
In addition, our staff clearly believed--and communicated those
beliefs to me--that we had effectively communicated to CBS and MTV our
expectations with respect to the quality and character of the Super
Bowl halftime entertainment. And right up until the day before the
Super Bowl game itself, statements by MTV's representatives seemed to
confirm this belief. To note a single example, in a New York Times
feature on the evolution of Super Bowl halftime entertainment on
Saturday, January 31--the day before the game, it was stated that the
League had clearly communicated its expectations to MTV and the MTV co-
executive producer of the halftime show was quoted as saying that:
``Know who the audience is . . . MTV is 12 to 24, and the NFL
is 18 to 80. It's a little bit different from what we do, but
we know our role.''
In conclusion, we in the NFL absolutely recognize and accept our
responsibility to ensure that all Super Bowl programming is tasteful,
first-class, and highly regarded by NFL fans and the public generally.
We will certainly be wiser in dealing with others but, most important,
we will change our policies, our people and our processes for managing
the halftime entertainment in order to deal effectively with the
quality of this aspect of the Super Bowl game.
Mr. Chairman, thank you for the opportunity to testify today. I
would be pleased to respond to any questions from the Subcommittee.

Mr. Upton. Thank you very much. Mr. Karmazin, welcome.

STATEMENT OF MEL KARMAZIN

Mr. Karmazin. Thank you very much. MTV is not responsible
for the banging noise that you're hearing. Thank you, Chairman
Upton and members of the subcommittee for allowing me the
opportunity of appearing here today. I just need to correct you
on one thing. My title is President and Chief Operating
Officer. This is not the spot I suspect to get promoted at
today.
Before I address Chairman Upton's legislation, I'd like to
spend some time and discuss the event that happened during
halftime at the Super Bowl. It's very regrettable for what
should have been remembered as one of the finest Super Bowl
games of all time, one that was very exciting, had great
ratings, is being marred by the controversy surrounding the
halftime show.
Let me say, Congressmen, you're just wrong. Let me just say
that everyone at Viacom and everyone at CBS and everyone at MTV
was shocked and appalled and embarrassed by what transpired.
Ms. Jackson's unrehearsed and unapproved display went far
beyond what is acceptable standards for our broadcast network.
We apologized immediately to our audience and I apologize here
again to all of you. This is not acceptable. We're not
defending anything on any basis of free speech. This should not
have happened.
We have conducted an investigation. Yesterday, we supplied
the FCC with significant amounts of information. To date, we
have interviewed 50 individuals and we have also included a
tape from Ms. Jackson as well as an affidavit signed by her as
well. We have submitted tapes of every rehearsal, notes of the
entire process and that it is clear that nobody at CBS, nobody
at Viacom, nobody at MTV and certainly nobody at the NFL knew
what was going to happen.
She has now publicly admitted, Ms. Jackson has now publicly
admitted that she and her choreographer, unbeknownst to anyone
else, met privately in advance with Justin Timberlake. We
understand that that meeting took place approximately an hour
before the halftime show and she discussed what was going to be
a new ending to the show. She has said that she had told--and
Mr. Timberlake has said that he was under the impression that
at the end of the song, he was going to remove her top and
under that top was to be a red bra or bustier and when he did
that, it wasn't there, which is why you heard these comments
about ``costume malfunction'' was the alleged sense that he
believed there was going to be something under there and that
her bare breast was not to be shown.
It happened. It happened under our operation. We take
responsibility for it, but this happened on live television and
had not happened before. So let me tell you that during the
Super Bowl we aired that entire program on an audio delay
because we wanted to make sure that if somebody said something
inappropriately, we had the ability to edit that out. We have
never, ever had to do anything with a video delay because the
video delay, you move the camera. So when Commissioner
Tagliabue mentioned a few minutes ago that there was a
streaker, I don't know those of you who were watching on
television that were not there in the stadium should know that
a naked person just before the start of the second half, came
out onto the middle of the field, naked, I think, it was hard
to see from where we were. He was decked by a player. Security
came, carried him off and that wasn't off television. And the
reason it wasn't on television, we didn't believe that's
appropriate to put on television and therefore it never found
its way to television.
If, as some have said, this is a plan to sort of see how
low we could go and if, in fact, it was about getting ratings
or some of the other things that I've heard this afternoon, we
would not have exercised what we obviously always do which is
protect ourselves that way.
The event was on for 18 frames, what that is, is a little
bit than three quarters of a second. That's how much it was on.
It shouldn't have been on at all. That was three quarters of a
second too much which is why we decided that we had to take
this to a new level because the concept of just using audio
delays and the concept of just having the ability to pull away
no longer works. So we announced that for the first time that
has ever been done in television to my knowledge is that we
took a live event, the Grammys, and we put it on a 5 minute
delay, so in addition to having the protection of an audio
delay, we knew that--we weren't sufficient in what we had
without a delay and we put that on.
We have also for the first time in our history, we have
instructed all of our television stations, our individually
owned and operated television stations, 39, that when they are
broadcasting live programming and this would not include news,
but live programming where something like this could happen,
they will from now on broadcast not just on an audio delay, but
on a video delay.
We are concerned about the risks associated with that
because we certainly don't want performers to suddenly now
think that they're off the hook, that therefore it's on a
delay, so therefore they're free to say anything because you
guys are the ones that have to capture it. But we are going to
stick with this and we're going to continue to see where it
goes.
We also appreciate the interest that this committee has had
on the difficult issues of indecency. Chairman Upton's
legislation will no doubt have a detriment to some effect of
stations airing indecent material. There was a lot of material
said and I really do want to keep my comments short because I
would love to answer your questions.
I don't believe there is a single broadcaster who looks at
fines as a cost of doing business. I don't believe there is a
single broadcaster who wants the ability to getting fined. None
of us do. I've been a broadcaster for over 30 years and I can
assure you that I don't want to get a fine. And it's not about
the money, it's about the principle. If you're a broadcaster,
you shouldn't be fined and you don't want that material on the
air.
I don't think fines address what we believe to be the
problem. And the problem, we believe, is the current vagueness
is how indecency is defined. And it's exasperated by the lack
of clear policy direction from the FCC. Firstly, I got a
compliment and I have to give some credit to the FCC. This is a
very difficult of enforcing these very vague standards. I do
believe what we need is a roadmap.
I mentioned I've been in the broadcasting business a long
time. The standard used to be the seven dirty words. That was
for most of my career the standard. You never heard the seven
dirty words on TV. Occasionally, someone mentioned Bono did it,
but for all of the hours of broadcast television there was
never a lot of indecency on the air.
What's happened since then is that the standard has changed
and by the way appropriately so. I think that indecency is
beyond the seven dirty words. But it is not clear exactly what
is meant by indecency.
I also want to make a point that says that if we wanted to
air indecency, if there was an intent on the part of
broadcasters to air indecency, I'm told we can do that after 10
o'clock at night because that's a safe harbor. Nobody is seeing
that material done after 10 o'clock. So we don't want to run
indecency in the safe harbor and we don't want to run it in
prime time. So what we have urged and we have urged this for
some time and maybe this committee can help us, is that we hope
that the FCC will undertake a rulemaking that would decide on
what is indecency and questions that were asked earlier, is the
standard in Las Vegas the same standard that's appropriate in
Salt Lake City and what we think should happen is that if in
fact the FCC undertakes this rulemaking, and for the first
time, by the way, this has never been done. And if in fact, the
Courts uphold it, that's the standard.
So in conclusion, let me assure you that we fully
understand your interest in ensuring that indecent content does
not appear on live television. I pledge to you that we will
take every precaution to fulfill whatever laws, to follow
whatever laws Congress enacts, the FCC implements and the
Courts uphold.
We are proud of our long heritage as one of the premiere
broadcasters of this country and we will do all that we can not
to jeopardize that trust that's placed on us to deliver
entertaining, enjoyable and very appropriately programming into
American homes.
Thank you, and I look forward to your questions.
[The prepared statement of Mel Karmazin follows:]

Prepared Statement of Mel Karmazin, President and Chief Operating
Officer, Viacom

Good morning Chairman Upton and Members of the Subcommittee. I am
Mel Karmazin, President and Chief Operating Officer of Viacom.
Thank you for inviting me to appear before you today. The topic of
this hearing is H.R. 3717, ``The Broadcast Decency Enforcement Act of
2004.'' With such a subject naturally comes scrutiny of the state of
television and radio in America today. In a universe of television and
radio programming that is informative, educational and entertaining,
the incidences of indecency are infinitesimal. There are more than
1,700 television stations and nearly 13,500 radio stations nationwide,
broadcasting a total of some 8 billion minutes each year. And yet, in
any given year, programming that is found to be indecent typically
represents a handful of incidents covering only a few hours of that
time ``even under the vaguest indecency definition that exists today.
This illustration is not meant to diminish the serious concerns and
legitimate debate about indecency. Rather, it is an attempt to put into
perspective the frequency, or more correctly, infrequency, of indecency
and to shine a light on all the positive social contributions that we
and other broadcasters make. In the interest of time, rather than
enumerate all of our efforts, I will submit for the record in this
hearing an impressive compendium of the localism, programming and
diversity achievements of Viacom's broadcasting divisions. One example
you will find discussed in that litany is our HIV/AIDS awareness
campaign. Launched last year in partnership with the Kaiser Foundation,
the campaign mobilizes the full range of Viacom's properties. In 2003,
Viacom devoted $180 million in media value to messages on HIV/AIDS and
produced 15 television programs on the topic, which reached more than
50 million people. And for 2004, Viacom has pledged $200 million in ad
value to the campaign.
Largely unnoticed in the recent controversy was our decision to air
a highly valuable spot on HIV/AIDS during the Super Bowl pre-game show.
This message reached about 72 million people, and in the 48 hours
following its airing, the campaign's website received 215,000 unique
visits, allowing individuals to obtain important information on the
disease. Equally unnoticed was MTV's launch during the Super Bowl half-
time of its ``Choose or Lose 2004'' campaign with a timely message to
young people about voter registration, a cause certain to resonate in
these halls.
But a few regrettable moments in that same Super Bowl have since
overshadowed our many good deeds and the quality programming that our
company produces and delivers day-in and day-out. We had eagerly
anticipated broadcasting the NFL championship game since 2001, when we
last aired the event. Super Bowl XXXVIII was the fifteenth one that CBS
has televised. In the months leading up to February 1, CBS Sports and
engineers excitedly prepared to showcase in both analog and high
definition what has become the centerpiece for a national day of
celebration. At the same time, MTV made ready its plans for production
of the game's half-time show, featuring some of the most popular
recording artists in the music industry: Janet Jackson, Kid Rock,
Justin Timberlake, P. Diddy and Nelly. This is the second time that MTV
produced the half-time event ``it also did so in 2001.
MTV's preparations for this year's half-time event included a full
review, in tandem with CBS, of the script and lyrics and attendance at
all rehearsals throughout the week before the Super Bowl so as to
conform to broadcast standards. The script called for no untoward
behavior. In rehearsals, Nelly did not reach for an area below his
belt, and Jackson and Timberlake certainly did not practice the stunt
they performed on air. Further, as Jackson has acknowledged in both
written and televised statements, it was devised by her alone, without
the knowledge or participation of anyone at CBS or MTV.
In addition to these preparations, CBS put in place for the
broadcast of both MTV-produced segments on Sunday ``the one-hour `TRL
Total Request Live' at noon Eastern and the half-time show'' a five-
second delay device designed to eliminate inappropriate audio. With
respect to video, the first line of defense, as is always the case at
live entertainment and sporting events, was the cut-away camera, which
moves the camera away from inappropriate graphic subjects. Given the
history of broadcast television up until this Super Bowl, deleting
troublesome video was never a concern, except, perhaps, for the
occasional streaker dashing across a sports field.
Having taken these steps and with our delay and cut-away systems
ready, we truly believed that we had thoroughly prepared and taken all
precautions needed to deliver a sports and entertainment event that
would be enjoyed and applauded by fans throughout America and around
the world. We were wrong. Although we are proud of 99 percent of what
people saw on CBS last Sunday during eight hours of Super Bowl sport,
pageantry and music, we understand what a difference one percent can
make. We apologized right after the incident. And I take this occasion
to apologize again, to our viewers, to our affiliates, to both teams
and the NFL, and to our advertisers for not having in place the
technology needed to remove objectionable video before it reached our
audience.
Some have publicly stated that they don't believe that we were
duped by Jackson and Timberlake. Even with the facts before them, they
never will. Yet, logically, there was nothing to gain for Viacom ``not
for ratings, not for advertising dollars, not for promotional value.
Our reputation and the reputations of CBS and MTV are too valuable to
risk by engaging in such stunts.
Others have said that we should have anticipated what would happen
because of the talent involved. Yet, to our knowledge, neither Jackson
nor Timberlake, seasoned performers in numerous live television events,
had ever engaged in such an antic. The well-received half-time show MTV
produced three years ago had also included performances by Timberlake
and Nelly.
The unfortunate Super Bowl half-time episode instructs us that
unacceptable conduct may occur at live entertainment events on
broadcast television that the cut-away camera approach cannot cure.
Artists are pushing new limits, and as they do, high definition digital
technology is delivering their words and actions clearly and crisply
and often on very large screens into America's homes. Personal video
recorders, like TiVo, transform what once was a fleeting, did-that-
really-happen television moment into a repeated performance. It was
reported that TiVo subscribers hit rewind on the Jackson-Timberlake
incident nearly three times more than they did on any other moment in
the Super Bowl, even those nail-biting final seconds of the game. These
TiVo-recorded images of fleeting television moments are then magnified
and transported around the world almost instantaneously via the
Internet. Of course, the enlarged still photos appearing on websites
are not what a Super Bowl viewer saw. Our first-line defense of the
cut-away camera did work to make the incident truly fleeting. And the
cut-away camera did, a few moments later, manage to completely protect
the home audience from viewing a streaker who had eluded heavy police
security and darted across Reliant Stadium's field in front of 70,000
fans. We must be vigilant at the moment of broadcast to protect our own
viewers, but we cannot be responsible for the images that are stilled,
distorted and then disseminated via a medium over which we have no
control. However, we do understand that our first line of defense has
to be made more effective.
For the live Grammy Awards show this past Sunday, the CBS
Television Network implemented an enhanced delay system for deletion of
any inappropriate audio and video footage, had it been needed. Under
this system, the broadcast of the live Grammy Awards event was delayed
by a full five minutes. Developed by CBS engineers on short notice, at
great cost, and under tremendous pressure, the system is groundbreaking
``no other network has ever undertaken the task of creating a system
that is capable of eliminating video from a live program. In fact, the
system we used for the Grammys truly is an invention in process, and we
are at the mercy of the technology and of our personnel on the scene.
While we would like to commit to using this enhanced technology for all
potentially problematic live network events, we are still studying how
it works. But I pledge to you that the CBS Television Network will use
it or something better whenever appropriate.
We do note a concern that anything more drastic could mean
eliminating all live programming. That would not be a good outcome for
viewers of broadcast television. Moreover, with an enhanced delay
system in place, some celebrities in fact may believe they can do and
say anything based on the assumption that the network will catch the
inappropriate-for-broadcast behavior before it airs.
Our rigorous attempts to deal with inappropriate footage during
live events leads to a discussion of Congressman Upton's bill, which
seeks to increase fines ten-fold for violations of the FCC's indecency
policies. The ultimate goal of any indecency law or rule should be to
keep indecency from being broadcast to American listeners and viewers.
Fines have a deterrent effect, for sure, and, if assessed judiciously,
can also motivate broadcasters to take more precautions, which, in turn
will minimize indecent broadcasts. But it is also important that, as
the FCC levies fines, it exercise its discretion to adjust the amounts
downward for behavior that is clearly not deliberate, that is, where
the broadcaster has taken all reasonable precautions to comply with the
indecency rules.
One other point I would like to make is that the enormous fines
proposed under the legislation could devastate small broadcasters, who
will have much less ability to pay and could be driven to bankruptcy.
As a broadcaster, I urge you to consider the significant impact of the
legislation on small station owners.
However, we firmly believe that instituting increased fines is
putting the cart before the horse. There is a chronic problem that is
not cured by increased fines, and that is the vagueness of the FCC's
indecency standard. Before the FCC levies any fine, it must determine
that a broadcaster has violated a rule. In the case of indecency, the
rules are neither clear nor static. The precedent constantly changes,
and the standard is not clearly articulated to broadcasters. For
example, in two prominent decisions released shortly after the FCC
published its long-awaited ``Industry Guidance'' on indecency in 2001,
the FCC issued fines for Eminem and Sarah Jones performances found to
be indecent. The FCC later reversed course, found the performances not
to be indecent and rescinded the fines. More recently, the FCC's
Enforcement Bureau, consistent with Commission precedent, found Bono's
use of a particular word on a live awards show to be so fleeting and
non-sexual as to be deemed not indecent. Now it is reported that the
FCC intends to reverse course and find Bono's utterance to be indecent.
These multiple course ``corrections'' in the context of adjudicatory
proceedings typically involving a single party and taking months, or
even years, of deliberation, illustrate the difficult task facing
broadcasters as an industry in determining whether certain program
material ``especially in live broadcasts when they are under timing
pressures'' crosses the line. In short, broadcasters need a much better
roadmap.
The FCC should undertake a full rule making proceeding in which all
interested parties can participate so that the constitutional
parameters of indecency enforcement can be made as intelligible as
possible. The Commission has never held such a proceeding relating to
indecency, nor has the FCC ever tried to establish a mechanism by which
it can reliably ascertain the required contemporary community standard
for the broadcast medium. Given the fast-paced nature of change in our
society, such an updated standard is critically needed. Then the courts
can decide whether the lines have been drawn in proper deference to the
First Amendment.
Our request for clear guidelines from the FCC and the courts is in
no way an abdication of our responsibility as broadcasters in setting
our own internal guidelines. Therefore, I take this opportunity today
to reaffirm and explain these long-standing commitments and practices,
as well as to announce the institution of a new one, to our CBS and UPN
viewers and to Infinity listeners.
First, we reaffirm our policy across the networks and our owned
radio and television stations that certain expletives like those
contained in the George Carlin monologue ``Filthy Words'' and which led
to the Supreme Court's Pacifica decision should not be broadcast at any
time of the day, including ``safe harbor'' periods ``except in the rare
instance where deleting such language would undermine classic creative
content delivered in context. Several years ago, for example, CBS aired
a live production of ``On Golden Pond,'' in which we allowed language
we would not have otherwise permitted. We also note that other networks
have taken the same approach when airing movies such as ``Schindler's
List'' and ``Saving Private Ryan.'' When such exceptions are used,
however, warnings to viewers about language are frequently interspersed
within the programming. As has always been the case, appropriate
action, up to and including termination, will be taken against any
Viacom employee who violates this policy.
Second, it has been the practice for several years now, that all of
our Infinity radio stations that produce their own potentially
problematic live entertainment or news programming, or sporting events
containing a live entertainment or interview element, have in place
delay systems and the personnel to operate those devices in order to
delete inappropriate expletives, as well as other unacceptable sexual
descriptions or depictions within that programming. We will continue to
use these systems and discipline Infinity employees who fail to
vigilantly utilize them.
And third, starting this quarter, for the first time all of our
locally owned CBS and UPN televisions will purchase and install delay
systems to be used under the same circumstances as described for the
Infinity radio stations.
In conclusion, we hope that these policies and changes help
reassure you and our viewers and listeners of our commitment to
continue to deliver the high quality programming they expect and
deserve from our company. On behalf of our entire organization let me
again state that I regret the incident that occurred during the Super
Bowl half-time show. Our country has the finest free broadcasting
system in all the world, and Viacom is proud to be a part of that
system.

Mr. Upton. Thank you both, gentlemen. We'll proceed to
questions from the panel.
Mr. Tagliabue, are you satisfied with Mr. Karmazin's
explanation, that they did everything that they could working
with you, working with the NFL?
Mr. Tagliabue. I heard his explanation of what they had
uncovered and I have no reason whatsoever to question anything
that he said. I guess my point would be I don't think we, the
NFL, did enough and we didn't work closely enough with CBS to
avoid the halftime show that went on the air.
I think with the benefit of hindsight we all agree with
that. We did not want to have this kind of a show and we will
not have it again. As I said, we have a tremendous working
relationship with CBS. It was not that way with MTV and we
probably should have recognized that the best way to have the
proper programming is to have a good, strong, cooperative
relationship and one that doesn't seem to be at cross currents.
Mr. Upton. Mr. Karmazin, in your testimony you expressed
concern about the vagueness of the FCC's indecency rules and
the broadcasters face a difficult task to determine whether
certain programming crosses a certain line. And having heard
that I want to talk about two FCC notices of apparent liability
for indecency issued against Viacom's Infinity Broadcasting.
One was in 2002 and the other one was in 2004. Both were
episodes of the Opie and Anthony Show. And leaving specific
legalities aside, would you agree with me today that regardless
of how vague you believe the FCC's indecency rules are, at a
minimum it should not have been a difficult task for anyone in
the broadcast industry to determine whether those shows were
appropriate or not and one of them well discussed is the
situation of the St. Patrick's Cathedral. As I recall, I think
you fired or someone fired or eliminated that show almost on
the spot.
Mr. Karmazin. I believe I know the two that you're
referring to. I believe it was inappropriate. It should not
have been on our radio station, that we fired not only the
individuals, we fired the producers. We fired the program
director. We fired the general manager and changed the format
of that radio station from a talk radio station to a music
radio station. So no, I don't believe that that material should
have aired. I'm not a constitutional lawyer. I can't tell you
whether or not the specific words conform to the indecency
standard, but more importantly it doesn't conform to our own
standard and we took it off the air.
Mr. Upton. And you recognize that by the quick action that
you took, and as I understand the FCC, at least for the second
one had a fairly significant fine and I want to say it was in
the hundreds, $357,000, referred to a number of different radio
stations it was broadcast on. Have those fines actually been
paid?
Mr. Karmazin. The fines have not been paid because of the
fact that we are appealing the outcome on basis of whether or
not that constitutes, based on similar material, similar
content that the FCC deemed not to be indecent. So one of the
ways that we as a broadcaster know what is and what isn't is
you take a look at the stuff that they say yes, you are fined
and then you take a look and say no, you're not being fined.
You've mentioned a lot of these complaints that have been filed
and therefore a lot of them were not issued an NAL and a lot of
the content was similar. I can control exactly what goes on on
our properties. We have people responsible for that. That
material is unacceptable to us, whether it crosses to indecency
and deserves a fine----
Mr. Upton. But on the one hand you said it was
objectionable enough that even the producers, everybody was
fired, and it's off the air and a second later, you indicate--
and that was justified, but the second case though, you don't
pay the fines. The FCC has agreed that it was, in fact,
indecent. I would guess that everyone in this room in watching
would say that it was totally inappropriate, terribly offensive
to virtually everyone that heard it. You agreed with that. The
FCC ruled and yet the fine is unpaid.
Mr. Karmazin. Congressman, I think what you said was
objectionable, offensive and we would all agree to that. The
question----
Mr. Upton. And indecent.
Mr. Karmazin. The question is whether or not the material
was indecent. So I can fire somebody for reasons that they
broadcast something that I did not want on the air. I did not
like during halftime of the Super Bowl that somebody touched
their crotch, okay? I don't know whether or not touching the
crotch, there's an awful lot of people who do that, whether or
not that violates the indecency--but I can tell you that's not
acceptable for us.
So the fact that we fire somebody doesn't mean they
violated necessarily the indecency standard, so the idea of
paying the fine is basically acknowledging that you have aired
indecency and my attorneys have assured me that in their
judgment we did not air indecency. We aired objectionable,
offensive, embarrassing, don't want it, shocking all of these
other words. The question is whether or not the legal first
amendment standard of indecency was crossed.
Mr. Upton. Mr. Markey?
Mr. Markey. Thank you, Mr. Chairman. Obviously, MTV has its
standards and CBS has its standards. The NFL, CBS that day was
targeting an audience from age 8 to 80 which is not exactly the
strategy of MTV.
Is there a--let me ask this question. If you eliminate the
first half and you eliminate the second half, you eliminate the
wardrobe malfunction and all you're left with is that halftime
show, with the below the belt activity you just referred to,
the racy language that you referred to, would that show, in
your opinion, merit a G rating?
Mr. Karmazin. Let me answer that question. I think the
Commissioner said that all of his meetings and what he
mentioned, I believe, in his testimony was 18 to 80, 18 to 80
was what was there.
Mr. Markey. Realistically, it's 8 to 80.
Mr. Karmazin. I'm not trying to debate the audience of the
Super Bowl.
Mr. Markey. Every kid that has shoulder pads from age 8 on
is sitting there all day.
Mr. Karmazin. So let me tell you that from my point of
view, the artists that were selected to perform, the artists
that were selected to perform were very, very popular,
mainstream artists, Janet Jackson, Justin Timberlake, P. Diddy,
Kid Rock, Nelly. So let's start with the artists. The songs
that were featured are song of the most popular songs of today
and by the way the versions that were done were the clean
versions of those songs, songs that were played on thousands of
radio stations, songs that were performed on the Teen Choice
Awards----
Mr. Markey. Would you give it a G rating?
Mr. Karmazin. I'm not in the rating--I don't know, G or PG.
I'm suggesting that there were three----
Mr. Markey. Do you think the language in those songs was
appropriate for an audience 8 to 80, that's all I'm asking.
Mr. Karmazin. That's a broad spectrum of the audience,
Congressman. There's very little that's appropriate for an 8-
year-old and an 80-year-old and I'm saying that the lyrics were
scrubbed. They were looked at. They were deemed to be
appropriate.
Now it's Monday morning. You know how you look at a
football game and you sort of Monday morning quarterback it and
you say should we have gone for that play? Certainly to do it
over again as the Commissioner said, to do it over again I
would have much preferred the NFL show to be different than
what appeared at halftime.
Mr. Markey. You did third quarter quarterbacking looking at
the halftime show. Would you have, in retrospect, even leaving
out the wardrobe malfunction, have had the lyrics, the other
conduct beyond the Janet Jackson-Justin Timberlake episode?
Mr. Tagliabue. When I saw--during the early part of this
halftime show I was doing an interview on CBS radio. As soon as
I started looking at the halftime show I felt like I was kicked
in the stomach. Why do I say that? I didn't like the
choreography. I didn't like the suggestive grabbing of private
parts which the choreography lent itself to. I didn't like the
way the flag was being treated. I believe absolutely in the
first amendment right to do what you want to do with the flag,
if you're in a protest march some place, but not for this
audience where we've got tens of thousands of troops watching
the game around the world. I had as my personal guest at the
game, the son of a good friend who was embedded with the 1st
Marine Division. I had as my personal guest at the game,
General Pace, the Vice Chairman of the Joint Chiefs of Staff
who brought within him a Patriots fan who was in Walter Reed
Hospital having lost his arm in Iraq. So there's a time and
place for everything.
Friday morning, our people e-mailed the MTV people and said
they didn't like the use of the flag. It didn't get resolved.
That's partly our fault, partly their fault. At this point I
couldn't allocate the blame. We were both at fault, our people
and their people, in my judgment in the way the flag was in my
judgment trashed, in that setting, at this time in the nation's
history.
On the lyrics, on Friday morning, our people e-mailed MTV
and said--objected to some of the lyrics, even as Mr. Karmazin
said they were the watered down or scrubbed version. MTV's
response was that they have been--those lyrics have been sung
on Saturday Night Live. Give me a break. Saturday Night Live is
not the Super Bowl audience. I'm sure he agrees with me. If the
two of us have been there maybe we would have made a different
judgment. Unfortunately, we weren't there. Someone made a bad
judgment. It was as bad on my side as on the other side because
if you're objecting to lyrics and someone says they've been
played on Saturday Night Live, it doesn't mean they go into the
Super Bowl telecast with 150 million people watching.
So those are the kinds of problems I have. I agree with Mr.
Karmazin the talent, you can argue about the talent, but as I
said in my statement and as Mr. Green noted, we started the
show with the Texas Southern and Houston University marching
bands. Not many MTV shows start with two college marching
bands, one African American school and one other, both local.
That was something we all insisted upon. Then we went to Janet
Jackson. We were told her main song was going to be Rhythm
Nation. I've already commented on that. We went to Kid Rock who
I was assured was fine because he was with our players, Deuce
Staley and another player at Baghdad International entertaining
the troops last August.
Well, benefit of hindsight, that's not a great
recommendation either because we know what Bob Hope used to do
with the troops around the world and he didn't do the same
thing on broadcast television necessarily and I don't know what
Kid Rock sang in Baghdad International, but what he sang at our
game I didn't like and the way he conducted himself with the
flat, I'm sure is not the way he conducted himself with the
troops in Baghdad International.
So judgments were made that were bad and it won't happen
again. I don't think the judgments were even close calls.
Mr. Karmazin. The sense of the flag issue was something
that really troubled me because personally that's how I feel.
In trying to get to the bottom of it what we saw was that
during rehearsal and by the way, all of the tapes, fortunately,
sometimes tapes hurt you and sometimes it's good to have tapes,
so we have everything on tapes including all of the rehearsals
and everything.
What happened during rehearsal was that Kid Rock was
wearing the American flag. He was singing a very patriotic
song. By the way when he opened up, I was at the stadium, he
opened up the jacket he was wearing to reveal the flag and if
you look at the tapes as I've seen many times, you'll see that
he was greeted with applause, but in rehearsal he took his
American flag, this is the MTV version, so Commissioner
Tagliabue is saying what his people had said to him and I'm
telling you what we've investigated from our end. He took the
American flag and threw is down and then somebody threw him a
hat. That is what we thought was the objectionable part, that
he threw the American flag down and that was corrected, so that
when he took the poncho off that he was wearing, he threw it to
somebody else.
Again, the dance numbers, believe it or not, I don't dance
that way. I am told that is the way people are dancing today.
Adults are dancing today. The younger demographic is doing
today. I think we have issues that the Commissioner and I both
share. We would have liked there not to be a controversy. The
last thing--we've had--I have a long term association with the
NFL long before I came to CBS and the owners of the teams, the
players of the teams, the League itself does not deserve to
have all of this discussion be about a halftime show.
So I would not pick the songs. I would have had Andy
Williams.
Mr. Upton. Mr. Bilirakis.
Mr. Markey. I just would like to conclude by saying it was
an MTV version on a G-rated, supposedly G-rated all ages
program and that's a problem and it's something that in the
future we're just going to have to deal with as a matter of
policy that ensures that parents have a right when there's a
halftime show that is entertainment can be blocked out.
Mr. Karmazin. I understand, Congressman.
Mr. Upton. Mr. Bilirakis.
Mr. Bilirakis. Thank you, Mr. Chairman. Certainly the
testimony and the questioning that has gone to the Super Bowl
halftime show and that is very significant to talk about
standards, I think, Mr. Karmazin used the word standard a
number of times. I heard a lot of your testimony in the
anteroom out there.
So it's important because standards, what are we doing with
our standards being lowered constantly if we accept these
things.
Let me get though into the area that really bothers me in
addition to all that and I mentioned it in my opening
statement. Viacom owns Infinity Broadcasting that runs radio
stations, right?
And would you agree that the incidents on indecency on
radio far surpasses the indecency on television?
Mr. Karmazin. Yes.
Mr. Bilirakis. It does. Well, many radio stations
frequently rely on syndicated content, do they not? Your
stations rely on syndicated content?
Mr. Karmazin. I think if you were to do the total
percentage, but yes, many radio stations do carry syndicated
programming.
Mr. Bilirakis. Isn't it unrealistic and unfair to expect
those stations to have someone standing by on a 24/7 basis in
order to bleep potentially offensive material coming down the
line?
Mr. Karmazin. Absolutely not. If you are a licensee of a
radio station, you are responsible for what airs. We have
encouraged our ratio stations, even though they are taking
somebody else's produced programming, that they should be
operating on a 7 second delay at their local station in part
because of what may be appropriate in New York may be
inappropriate someplace else. So no, it's not impossible.
Mr. Bilirakis. Can your stations just refuse some of this
syndicated material? Can they do so?
Mr. Karmazin. Absolutely.
Mr. Bilirakis. Do they do so?
Mr. Karmazin. Rarely.
Mr. Bilirakis. Rarely, why only rarely?
Mr. Karmazin. Because most of the material is consistent
with why they decided to take that program. So if as an example
you decided to take a program and that occasionally that
program goes over the line, you might want to pre-empt or you
might want to excerpt it. If you don't want to take that
programming, if you're saying you know what, I don't like the
idea of taking syndicated programming, don't take the
syndicated programming.
Mr. Bilirakis. Without suffering any dire consequences?
Mr. Karmazin. That's not the standard, sir. I think the
answer is whether or not if you want to take a program that you
think is right, that you should take it and when it
occasionally would fall over the line, you would pre-empt it,
you would edit and you would do what you needed to do to
protect your responsibility as a broadcaster.
Mr. Bilirakis. If you're responsible under the law.
Mr. Karmazin. You're responsible under the law. If you're a
broadcaster and there's a program, I mean that you just don't
want to take, you don't want to carry that program, you
shouldn't carry that program.
Mr. Bilirakis. All right, are you familiar, does the same
thing apply as far as television stations are concerned?
Mr. Karmazin. I think from my point of view, one of the
things that I think we need to do as a result of this most
recent event and again, maybe it should have been done sooner,
but as a result of this, we need to make sure that we, as an
example, our affiliates, not just our owned and operated
stations, but our affiliates understand what each of our
responsibilities are and that I would not--would I have
objected, if an affiliate of ours had the ability to knock out
that Janet Jackson piece, I would have loved to have done it.
So if they did it, believe me, there's no consequence of
somebody doing that.
Mr. Bilirakis. Well, but if you're a local broadcaster and
you're affiliated with a network, and they send you the
programming, and we talked about this in the prior hearing,
you're basically stuck, are you not, in terms of that
programming?
Mr. Karmazin. I think the history, sir, has been that there
really hasn't been what--there's been sort of a handful. Again,
a handful are too many, but there's that Bono thing that was
talked about. There were some other things on Fox that was
talked about and there's this Janet Jackson thing. So I think
in light of that you know, out of all of the hours of stuff
that gets fed, you know, it's been a minor amount. I do think
there's an appropriate time now to have a dialog with our
affiliates to see----
Mr. Bilirakis. We have yet to hear from the broadcasters
and we have another hearing coming up after our February break.
But my impression is and I concentrated on this in the last
hearing, is that the affiliates have a problem. Either they
can't pre-empt or else if they do pre-empt they're in danger of
maybe losing their affiliation with the network. But we'll be
talking to the Commissioners in a little while.
I do want to thank both of you, gentlemen. I asked the
question of the staff are they kind of willing witnesses and
she said that you are more than willing to come here of your
own time. You didn't have to be subpoenaed or anything like
that and we appreciate that very much.
Thank you.
Mr. Upton. Mr. Dingell.
Mr. Dingell. Gentlemen, welcome to the committee. Mr.
Karmazin, I've checked MTV's website just prior to the events
of this hearing and in it it included the headline saying this
``Janet Jackson's Super Bowl Show Promises Shocking Moments''
and then I read in the same Viacom MTV website the headline
``Janet Gets Nasty. Jaws across the country hit the carpet at
exactly the same time. You know what we're talking about.
Justin Timberlake in a kinky finale that rocked the Super Bowl
to its core.''
Is that correct?
Mr. Karmazin. What you read is correct. We investigated----
Mr. Dingell. Did that surprise you that they put that on?
Does that show that maybe MTV did plan this thing all along?
Mr. Karmazin. So one of the things that we did was
certainly to try to understand what was intended on Thursday
when that shocking thing was there.
Mr. Dingell. Yes.
Mr. Karmazin. And what the shocking thing that was there
was the appearance, the special appearance of Justin
Timberlake.
Congressman, I don't know how much more I can do other than
sometimes the truth may not satisfy----
Mr. Dingell. You own MTV. Viacom owns MTV. And I would
assume that the policies of CBS and Viacom would be noticed at
MTV?
Mr. Karmazin. What I'm saying is the shocking--what you've
read that was on the MTV site in advance was promotion to
attract an audience to the Super Bowl and the shocking event
was not to be anything like this Janet Jackson episode but, in
fact, was an appearance by----
Mr. Dingell. Apparently somebody at MTV or Janet didn't
hear this.
Now let's go to a couple other questions. These are for Mr.
Tagliabue.
When the NFL contracted with Viacom to produce the halftime
show, were you aware, and don't answer this question until I
finish it, specifically Infinity Radio which is owned by Viacom
had a rich history of broadcasting indecent content at a time
when children were likely to a large portion of the audience?
In fact, CBS, the predecessor company of your Super Bowl
partner Viacom, was fined $1.7 million in 1995 to settle a long
series of broadcasting indecency cases. And were you aware that
Viacom had received notices of apparent liability, NALs, for at
least nine broadcasts of sexually explicit programming
including a song describing a father making his daughter
perform oral sex on him and a show that challenged listeners to
have sex in St. Patrick's Cathedral, the Disney Store and FAO
Schwartz?
Were you aware of that, Mr. Tagliabue?
Mr. Tagliabue. No. And----
Mr. Dingell. Were you aware of that, Mr. Karmazin?
Mr. Karmazin. Some incorrect statements, if I may correct
it? We were never fined $1.4 million because of the issues that
we had with the FCC on our ability to argue the indecency
things. We agreed to a settlement where we have no fine. If you
were to check the records, sir, you would find that----
Mr. Dingell. You paid up $1.5 million.
Mr. Karmazin. We paid the Treasury, $1.4 million to settle
something because of the fact that licenses were being held up
by the FCC and this was the fastest way that we could settle an
issue that was out there.
Mr. Dingell. Mr. Tagliabue, the Fox Network broadcast the F
word into millions of American homes in 2002 and 2003. This
past year, characters on the Fox Television show Keen Eddie
employed a prostitute to have oral sex with a horse. Were you
aware of that?
Mr. Tagliabue. I can't say that I was.
Mr. Dingell. Now if Fox is hired, are you going to be back
before us next year shocked, horrified, embarrassed and unaware
of the character of the contractors that you're having to put
these programs on for you?
Mr. Tagliabue. I don't think so, Mr. Chairman. Let me just
comment on that and I would say this equally about ABC, Fox and
CBS with the complete aberration being this year's halftime
show. The last time Fox televised our Super Bowl game was in
January after 9/11. We had canceled a week of games because of
the attack at the World Trade Center and elsewhere. We had had
our games interrupted on a Sunday early in October, we, meaning
CBS and Fox, as we kicked off on a Sunday afternoon by the
beginning of the attacks on the Taliban. We had gone through an
incredible fall as a nation. And Fox was phenomenally
responsive and capable in putting on a tremendous Super Bowl
telecast, including a program that included the Boston Pops,
Aaron Copeland and other things.
Mr. Dingell. Just one question though. What will you do to
assure that the halftime shows that are put on for you are of
suitable character for being viewed by minors?
Mr. Tagliabue. That's where I was going with this Fox
example. In that instance, I had spent 2 days with the Fox
executive producer. I had spent time with a close friend who is
a classical violinist to go over music. We and Fox----
Mr. Dingell. You will note here I'm not talking about
classical violinist.
Mr. Tagliabue. I'm making the point that the halftime was
U2. It was a tribute to those lost at 9/11. It was incredibly
stirring and incredibly well done. We had the Boston Pops at a
game the Patriots won, first time the Boston Pops ever----
Mr. Dingell. We rejoice at these things and we commend you.
Mr. Tagliabue. But my point is----
Mr. Dingell. The point is----
Mr. Tagliabue. We worked very hard to get this right,
whether Fox, CBS or ABC, we know how to do it right and in this
instance, this year, we didn't do it right.
Mr. Dingell. Mr. Chairman, my time has expired. Thank you
for your kindness.
Mr. Upton. Mr. Stearns.
Mr. Stearns. Thank you, Mr. Chairman. Mr. Tagliabue, let me
just ask you a question. Let me say I appreciate your comments.
I was watching in my office up there and they're sincere
comments and I think your leadership is to be commended here.
Are NFL players fined for cussing or vulgar acts? Could you
explain what happens if an NFL player, with profanity and let's
say vulgar acts, tell us what you do?
Mr. Tagliabue. We have mandatory fines for profane language
that comes across the airwaves for players and coaches and
anyone else on the sidelines whose either profane language
would come over the telecast or a profane gesture. It's a
mandatory fine which we impose.
Mr. Richardson reminded me last night that at the team
level he has suspended a player for one game who scored a
touchdown and grabbed his private parts in the end zone. So the
answer is yes, and that's whether it's a national telecast or a
regional telecast or even local footage like a news show. If we
pick up profanity or lewd gestures by players, we fine them.
And it's mandatory.
Mr. Stearns. And would you say you consider an NFL player
when he's playing sort of an entertainer? He's a sports person,
but he's also--I mean, or is he not an entertainer?
Mr. Tagliabue. In my judgment, he's not. I played
basketball at Georgetown. We were not entertainers. We were
athletes. I still view them as athletes. Other people in the
business have a different view. I'm sure Mr. Rooney and Mr.
Richardson and I agree, our players are athletes, not
entertainers. Some of the players don't seem to accept that.
Mr. Stearns. No, I don't think they do. So we have a
private organization finding its sports persons for violation
of conduct. Wouldn't you think the broadcasters, the networks
should offer some type of similar fine or penalty for their
performers when they're on the screen just like the NFL
players? Wouldn't you think that would be logical?
Mr. Tagliabue. It would be logical. I understand--I think
fines are a deterrent. I also understand what Mr. Karmazin said
about fines, are they the best way to get people to do things,
sometimes yes, sometimes not.
But the other thing I would add is on our games with the
networks, we get terrific support in trying to keep profanity
out of the game in terms of limiting parabolic mics and things
like that. We work together quite well.
Mr. Karmazin. We take it one step further that when of our
employees do it, not only do we fine them, we fire them. So
whereas the NFL has been very responsible, and they take their
players, their athletes and when they do something wrong like
air indecency, they fine them. We very often have gone to where
we are firing them, our employees. A couple of examples are
performers who no longer are with our company. We had another
circumstance where somebody for the first time, no history, no
problem before, a real bad day, I mean should not have done it
and we suspended and punish them as well.
Mr. Stearns. In light of what you just said, Janet Jackson
comes in to you and she has her contract with you perform. In
your contract, do you specify that they cannot perform behavior
which is antithetical to entertainment, antithetical to values
that the people who will be watching at that particular time
would expect, sort of this community indecency understanding?
Mr. Karmazin. Congressman, what has been the practice on
things like award shows is that you send out a contract and the
contract itself gives us that authority to do, but these
contracts historically have never been signed by the performer.
Mr. Stearns. So none of the performers, you make this--you
have your lawyers come out, sit down, you give the agent you
give the performer the contract and no one signs the contract?
Mr. Karmazin. That's most often the case, sir.
Mr. Stearns. That reminds me, during the oversight hearings
on Enron, Mr. Fastow said Mr. Skilling never signed the Special
Purpose Entity contracts, but they still went ahead.
Mr. Karmazin. I think there's quite a difference. I'm not
sitting there saying I'm not responsible----
Mr. Stearns. If they have a contract, why don't they sign a
contract before you put them on the air?
Mr. Karmazin. Because what has become customary in the
entertainment business and maybe by the way we're going to
revisit that. I mean if you're asking me, I'm trying to give
you as candid an answer as I can.
Mr. Stearns. I appreciate that. We just thought they signed
a contract because I was going to take you then, if they signed
a contract, then you must have some kind of standards in the
contract, but you're saying they didn't even----
Mr. Karmazin. If I had the ability to take action against
the performer who totally ad libbed, totally changed our
program, okay, and the NFL's program, I don't think there's a
fine big enough for what action I would have taken because I
totally find that to be such that I don't believe--again, we're
looking at it, we're trying to ascertain what we have. We may
change the way we deal with these contracts in the future or we
may decide, as we did with the Grammy's that said, you know, if
we can't get a contract to guarantee us that, then we're going
to take the responsibility unto ourselves and put it on that
even if they do this, it won't come out on the airwaves so that
the American public could see. So no harm, no foul.
Mr. Stearns. Thank you, Mr. Chairman.
Mr. Upton. Mr. Stupak.
Mr. Stupak. Thank you, Mr. Chairman. Mr. Tagliabue, in your
statement and you've said today that NFL accepts the
responsibility for having entered into the contract and what
resulted from it and I know you've answered questions and
explained how the NFL could have done something different. I
appreciate that frankness and hopefully we'll learn from this
incident, it doesn't happen again. So I for one appreciate it
that you're willing to do that.
Do you have any control over the commercials that are run
during the Super Bowl?
Mr. Tagliabue. No. With one--the answer is no. The one
issue that does concern me with respect to the commercials is
that we have some sponsorship arrangements which are completely
separate from the television commercials which is a network
matter. And under some of those sponsorship arrangements, take
Gatorade being a benign one, for example. We have Gatorade on
the sideline as a sponsorship arrangement. We sometimes give
the sponsored partner the right to use our NFL logo which is
our shield in some of their advertising. So if it's Gatorade, I
wouldn't find it offensive. Some of the televised commercials
today which are using the NFL shield in the advertising as a
result of sponsorship arrangements which are separate from the
advertiser do bother me, especially in the pharmaceutical
category and I think we will revisit that.
Mr. Stupak. Okay. Mr. Karmazin, I appreciate your being
here. In response to Mr. Dingell, something about a fine, about
a $1 million fine, you said it wasn't for indecency, but a
settlement of some other matters with the FCC, is that correct?
Mr. Karmazin. That's not what I said, sir. There was a
dispute on some material that was broadcast on some radio
stations that we own. The FCC claimed that there was indecency.
We said there wasn't indecency. We agreed to disagree and that
what was done was we paid a contribution to the Treasury of
$1.4 million to settle it and there was nothing that was ever
declared indecent that we paid that fine for.
Mr. Stupak. So there was a settlement without admission in
a way?
Mr. Karmazin. There was no admission because we didn't
think it was justified to admit anything. We don't believe
there was anything indecent.
Mr. Stupak. Okay, but you paid a $1.4 million----
Mr. Karmazin. And the reason for it was unfortunately the
government put us in a very difficult position as a business
that has to get our licenses. We wanted to own a car and wanted
to be able to drive the car, but in order to drive the car, we
need to get a license and the FCC was delaying our ability to
get the license. So from a point of view, which we didn't
think, by the way was even constitutionally fair, but that they
should delay, you know.
Mr. Stupak. Do you think the FCC should revoke license
based upon decency standards?
Mr. Karmazin. I think that when you're dealing with the
first amendment, sir, when you're dealing with the first
amendment, I think that you have to be very, very careful. And
no, I do not believe on first amendment issues that where there
may be something that somebody doesn't like that somebody is
going to decide to threaten a broadcaster so I now know that if
I don't run, move on .org commercials, my license----
Mr. Stupak. I was going to ask you, why didn't you air this
one? Isn't that censorship? Isn't that first amendment?
Mr. Karmazin. No, I think it's the idea--I'll tell you why
we don't. We and the other networks, but certainly, you'll have
the opportunity to talk to the other networks when they choose
to participate. We don't take advocacy advertising by any side,
so that if there's a commercial that's out there that is an
outreach commercial, that is basically the government saying by
the way, there is Medicare benefits available to you, we
distinguish that commercial from call your congressman, okay?
Call your congressman about abortion, call your congressman
about NRA----
Mr. Stupak. But aren't you subjecting, using your own
subjective tests what should be viewed? I mean they were
willing to pay the $2 million, whatever it was and run their
ad, yet you ran an ad that said choose or lose in 2004, urging
people to vote, but one of the issues they should vote on, you
didn't feel was appropriate to run?
Mr. Karmazin. And sir, there's a distinction between that,
but let me give you further clarification.
Mr. Stupak. The distinction is only your subjective test.
Mr. Karmazin. As is accepting a commercial which the
Commissioner is correct. It's our responsibility. It's not the
NFL's. We have standards and practices. We can be criticized
for accepting a commercial or not accepting a commercial, that
we do not take advocacy, any side, okay, of a commercial.
Now somebody could say why don't you and part of the
reason, by the way, is some of the commercials that get
submitted to us on abortion and some of the commercials are so
graphic that we don't want to find ourself in a position of No.
1, airing it, getting criticism, No. 2, turning it down because
it is so graphic and having there being an accusation that
we're taking sides in an issue. So we make it simple. We say we
do not take any advocacy advertising.
Mr. Stupak. I have many more questions, but I guess I have
to leave it here.
Mr. Karmazin. I would be available to see you after this
hearing and answer them.
Mr. Upton. Mr. Barton.
Mr. Barton. Thank you, Mr. Chairman. My first question is a
general question. Under current law and FCC regulations, the
entertainer or the perpetrator of the incident, the
transgression is subject to some sort of a warning by the FCC,
but they're not immediately subject to sanction. So my first
question to each of you, gentlemen, would you support a
statutory change that would make the perpetrator of the
transgression subject immediately to some sort of sanction?
Mr. Tagliabue. I guess I would rather think we don't need
the statute because we should be able to control it ourselves,
but again, I'm not against finding people, I do it all the time
for things that are inappropriate under the rules. So I guess I
could apply that to the statute, but I would--I think we can
solve that issue on our own.
Mr. Barton. You would not be opposed?
Mr. Tagliabue. I would not oppose it.
Mr. Barton. What about you, Mr. Karmazin?
Mr. Karmazin. I think that I would not automatically be
opposed to it either. I think that one of the things that we
have to do, just like we have said that we're asking for some
form of rulemaking to understand what is and what isn't. What
you don't want to do is you don't want to find that performers
are going to avoid and again, we're not talking about the
episode of Janet Jackson, we're talking about performers that
perform on free over-the-air broadcasting are not going to
perform because there's some standard that they don't know
exactly what they are or aren't going to get fined for and
therefore all that happens is that all of this entertainment
migrates to an unregulated form of the medium. But if, in fact,
everybody knows that the speed limit is 55, and you have to go
55, and somebody goes over that speed limit, I think it's
something that's worthy of consideration.
Mr. Barton. I'm not saying that it should be mandatory, but
I think we could perhaps statutorily say that the FCC has
discretion and then stipulate when that discretion would be in
order.
Under the current law and current guidelines in place, what
control, if any, does the NFL or Viacom have over what
transpired at the Super Bowl had you known before the fact, Mr.
Tagliabue, could you have prevented what happened?
Mr. Tagliabue. You know, I've given a lot of thought to
that since the Super Bowl in terms of liquidated damages
provisions, in terms of withholding fees. One of the things
that's ironic about the Super Bowl entertainment is some of the
greatest shows we've had, the talent has not charged a fee, but
instead has made a major gift to charity, just for the
privilege of being in the Super Bowl entertainment. Garth
Brooks comes to mind. He did a Super Bowl half time with no fee
and contributed $1 million to a community center that we left
in that Super Bowl city.
I guess I think I need more time to think about your
question because I think it comes back to what Mr. Karmazin
said. You can't be so draconian here that you chase good talent
away from platforms that you want to have them on, particularly
broadcast television.
Mr. Barton. We're not trying to be draconian, but I think--
--
Mr. Tagliabue. There are things that must be done, let's
put it that way. Exactly what they are, I'm thinking about a
lot and our attorneys are thinking about them as well.
Mr. Barton. Do you have a comment?
Mr. Karmazin. We had a lot of discussion afterwards and we
had it a propos of the Grammy awards, because that was our next
live event, you know, in a very short period of time after the
Super Bowl and the instructions that I gave somebody was that
if there's going to be a chance of indecency, take it off the
air, take the network, go dark, go dark. And we put in the 5
minute delay as an insurance, but if whatever happened didn't,
better we should put a test pattern up, than we should be in a
position or I should be back here having to testify and that we
shouldn't be airing indecency. So yes, there are things you can
do, you know, including prohibiting artists who are risky from
appearing. Better to air on the side of safety.
Mr. Barton. My final question and my time is about to
expire, if we were to eliminate the kind of a warning ticket
approach to entertainer sanction, other than financial
penalties what sanctions might be applicable?
Mr. Tagliabue. I don't know. I guess other than financial
penalties, you can always suspend people from performing and
you can incarcerate people. It doesn't seem to--I think about
sanctions, those are the three that come to mind and I would
hate to think--in our league, we suspend athletes because they
know the rules and they violate the rules. To go beyond that,
to some broader context where an entertainer is effectively
boycotted, to me that raises some troublesome issues, I think.
Mr. Barton. I am fairly confident that we're not going to
have another Super Bowl halftime show like we had. I have a
feeling that Jerry Jones and Al Davis and Mr. Kraft, et al.,
the Rooneys, I think they understand what prevailing community
standards are and I think they'll communicate that to you and I
think you'll communicate it to whoever gets the entertainment
promotion and I think we'll be okay, but I'm not so sure that
Viacom and CBS and NBC, I'm not sure they've got it yet, so
this is more directed at you.
Mr. Karmazin. I'm not sure I understand what you don't
understand we got. At this point, CBS, Mr. Paley started CBS a
whole lot of years ago and if you're dealing with the subject
of indecency, this is the first time in that history that there
is an issue with CBS network TV on indecency. So I don't know
where it gets. I think NBC was very concerned when Bono said
the F word. We operate on the delay to make sure it doesn't
happen. So I just don't get the analogy. If anything, we're
licensed, so we have more concern than anybody else does.
I'm sorry, I respectfully just disagree with you.
Mr. Barton. That's fine. My time has expired. Thank you,
Mr. Chairman.
Mr. Upton. Mr. Davis.
Mr. Davis. Thank you, Mr. Chairman. Mr. Tagliabue. Did I
understand you to say earlier that other than apart from the
use of the NFL endorsement or logo that was used in some of the
ads during the Super Bowl that the NFL doesn't have any
objection looking back to the content of any of the television
ads that were run during the Super Bowl?
Mr. Tagliabue. No, I didn't say that.
Mr. Davis. Could you elaborate then, on that?
Mr. Tagliabue. What I said was that we have nothing to do
with accepting the ads or evaluating the ads before they go
into the game telecast. I've heard a lot in the last week about
some of the ads. I haven't seen them. Some of what I heard is
not very elevating .
We have had issues with, as I said before, with some of our
sponsors where we--which is a separate relationship, where we
did not like the advertising that they were putting into NFL
games by agreement with the networks and I have met with the
CEOs of some of those companies to urge them to change their
advertising and as I say, I'm not entirely comfortable with the
use of our logo in some of the advertising. We're going to
revisit that.
Mr. Davis. Okay, so the NFL intends to review the content
of the ads associated with the game.
Mr. Tagliabue. Ultimately, if it's independent of the NFL,
Dell Computer, IBM or someone, we have very little opportunity
to do or say anything. If it's something like Pepsi with whom
we do a number of youth programs and have a partnership in
spots with Pepsi, there's more that we can do and we do discuss
those kinds of issues with Pepsi. That's just to take one
example.
Mr. Davis. Mr. Karmazin, thank you for agreeing to appear
here today. The Infinity Broadcasting FCC proceeding that's
been discussed at length here, have you personally reviewed the
content of the broadcasting that the FCC found indecent?
Mr. Karmazin. I haven't.
Mr. Davis. Would you express your personal opinion?
Mr. Karmazin. I find it offensive, distasteful, does not
belong on the air.
Mr. Davis. But why not indecent?
Mr. Karmazin. Because lawyers have given me a different
standard. You've asked me my opinion and then there's the FCC
standard and the legal definition of what is indecency which
again, I know some of it, discussion of sex or excretory
matters in a patently offensive manner that as the definitional
part, so I have people who are advising me that as crude and
offensive and inappropriate, as I find it, it may not be
legally indecent.
Mr. Davis. Have you received any comments from the
advertisers to the Super Bowl as to their opinion as to what
happened during the halftime show?
Mr. Karmazin. I have not personally had any conversation
with any of the advertisers, but as part of this process,
including before, I would touch base with the people who report
to me and see what the reaction is and a number of people have
expressed concern. A number of them have asked not to be
identified, some of them have less caring about it. But that I
don't think anybody--I must have gotten I don't know, I don't
want to exaggerate, but you know, lots and lots of e-mails and
lots and lots of mails. I didn't receive one, not one, that
said boy, that was great or that was--you guys are excellent.
Mr. Davis. My question is just about objections from your
advertisers as far as the bottom line is concerned here.
Mr. Karmazin. Yes. Let me tell you, when you have these
controversial programs, you know, somebody mentioned, it's not
one of our properties, Bubba the Love Sponge saying something,
the traditional national advertisers have a list of
personalities that they do not advertise on because they don't
want to be associated with what could be considered indecent.
There is no advertiser, no advertiser that buys you because you
air indecency. There are lots of advertisers who don't buy you
because you air indecency. So there's nobody saying yes. There
are people saying I don't want to be associated with it.
Mr. Davis. There was formerly a code of conduct that
involved the Family Hour, as you know, and apparently, the
Chairman of the FCC has suggested that your company and others
resume a conversation as to whether that would be appropriate
to have a uniform standard designed to protect, particularly
minors against access to certain material from 7 to 10. What is
your opinion on that?
Mr. Karmazin. I don't want to keep showing how old I am,
but I operated when the NAB used to have a code of conduct and
that was ultimately eliminated. If the Chairman wanted Viacom
to participate in discussions about that, I'd be very open and
very willing to participate on it.
Mr. Davis. Do you think that the cable industry and other
broadcasters besides the major broadcasters such as yourself,
ought to be a part of that?
Mr. Karmazin. Again, I think that there's a different
standard for broadcasting in cable. By definition,
broadcasting. So if you a parent, you have made CBS potentially
a channel that is acceptable because on Saturday morning, we're
running Blues Clues and we're running Nickelodeon programming,
so somebody could watch that, that you don't want to limit it.
But if you are a parent and you don't want a channel in our
home, a cable channel in your home, as Congressman Markey
correctly points out, all you need to do is to tell your cable
company or satellite provider, I don't want that channel.
So there's a--in my opinion, there's a tremendous
difference between a broadcaster and a cable channel. If you
want to discuss what should be on broadcasting, great. If you
want to discuss what's on cable, I think the parent has the
ultimate ability to take any channels that somebody finds
objectionable and just say I don't want it in my home.
Mr. Davis. Thank you, Mr. Chairman.
Mr. Upton. Mr. Cox.
Mr. Cox. Thank you, Mr. Chairman. Mr. Karmazin, I think
you're on to something here. I think it matters greatly that
we're talking about broadcast television and we're not talking
about cable TV. As has been noted several times here, the
audience for the Super Bowl is the ultimately most broadly
defined audience.
I'll just tell you that you can cavil about whether it's 18
to 80 or 8 to 80, in the gathering where I watched the Super
Bowl, as I think most Americans did, not solitary, but in a
gathering, we had a lot of kids that were younger than 8. And
they were very interested in the game. They play it. They don't
play it particularly skillful at age 5 and 6 and so on, but
they're there in their jerseys too and this can't come as a
surprise to anyone.
So when I hear you get into these legal domains about well,
the legal standard isn't clear enough, I just think you're
missing the point entirely. This isn't about what legally you
can do. This is about taste and judgment and discretion.
Probably the most inappropriate label that I've seen on some of
this programming for mature audiences, because the junk that
gets labeled for mature audiences is clearly for immature
people. They're chronologically at least teens, but they're
clearly not grown up yet because they think this stuff is just
really funny. And this extended to the ads that you're running.
I suppose the best way to imagine it is that you're a guest
in someone's home because earlier during this testimony, we
heard you talk about appropriate programming for broadcasting
into American homes. That's literally what you're doing. You're
coming into people's homes. Would you ever go into somebody's
home in a gathering that included grandma and little kids and
everybody in between and think that some of this stuff is--you
ought to tell a joke like this? Should you tell the joke about
the flatulating dog? That's the commercials that we're
watching.
My beef is, as a parent now, the first time I went to one
of these hearings, we had a field hearing and I'll never
forget, up in Illinois, to talk about how parents were reacting
to the self-regulation of the networks. And the parents just
beat the hell out of the network executives and I wasn't a
parent at the time. I was a Member of Congress, but I wasn't a
parent. Now I've got a 10 year old, a 9 year old and a 6 year
old and I'll tell you what pains me the most, Mr. Tagliabue, is
to be watching Fox on Sunday with my two boys and my daughter
and we're thinking we're having a good time on a Sunday
afternoon watching football and then the commercials come in
and I mean as a parent, how do I block those commercials?
It's just all over TV and what I remember those parents
saying back when i wasn't one, a decade ago, was thanks for
giving us some controls to keep your stuff out of our house,
but did it ever occur to you that you might do things that
would make our jobs easier as parents, not give us ways to
avoid the obstacles you put in our path as parents. Make our
jobs easier, help make America a better place and why isn't
that happening?
Mr. Karmazin. Congressman, I didn't use any legal argument
to discuss anything that was dealing with the Super Bowl. What
I was saying was dealing with adult radio programming as
compared to the Super Bowl.
Mr. Cox. Adult radio programming includes the stuff that I
listen to on my way into work on a.m. radio. I can't believe
what's on your a.m. radio. I can't believe it.
Mr. Karmazin. The distinction being we were concerning
ourselves about the kids because we do recognize that at the
Super Bowl there are 4 year olds and 8 year olds and 9 years
watching that. So there, I think we need to be even more
sensitive, obviously, including by the way--you didn't ask me
about the commercials, but I will tell you that we are
revisiting our standards and practices. There must be some form
of disconnect between what we are airing in the commercial----
Mr. Cox. I mention the flatulating dogs. For some people
that was funny. For others, it wasn't. It's clearly legal and
Congress should stay way the hell away from trying to regulate
this and so should the FCC, but my question is we've got a guy
sitting across from us who is the President of an organization
that had not revenues, but earnings of $2.6 billion last year,
a grown up, is this your idea of the way to make money in
America? Why don't you improve the country?
Mr. Karmazin. We think we do, sir, and obviously, I didn't
want to take up our testimony reading all of the things that we
do good. What we're here to do is to talk about these
particular issues.
Mr. Cox. Let me ask you just one question because I think
my time is about to expire and I do want to put a very specific
question.
I mentioned the fact that you're a significant company. You
have about $27 billion in earnings for last year, $1 trillion
in revenues for last year which is about $2 billion from the
year before and we're here talking about a fine that might
amount to $270,000 and that fine doesn't even apply to you.
Even if we raise it tenfold it doesn't even apply to you.
Shouldn't we make these fines apply to networks?
Mr. Karmazin. In my opinion, it does get to us because we
have our owned and operated stations.
Mr. Cox. I want to ask a very specific question because
right now under Title 47, these penalties are levied not on the
networks, but on the station licensee or the permitee. Should
we change the law so that it can be levied on you?
Mr. Karmazin. Can I just ask you one question, are you a
lawyer?
Mr. Cox. Yes.
Mr. Karmazin. So I'm totally disadvantaged, but if you ask
me, as a businessman, is there any reason that I would have,
okay, without giving any legal consideration to what somebody
may advise me of, I would have no trouble with that. I would
have no trouble--I appreciate being responsible for what we air
on our broadcast network. I take that responsibility. I have no
issue. Somebody may come up with 30 reasons why I shouldn't
have said that, but I being responsible for it, have no problem
with it.
Mr. Cox. I appreciate that very much. I thank the Chairman
for his indulgence and just think about us parents out there.
Mr. Karmazin. I'm one too.
Mr. Upton. Mr. Rush.
Mr. Rush. Thank you, Mr. Chairman. It seems to me like both
the witnesses have demonstrated the necessary and sufficient
outrage about what happened. I'm not sure if it's convincing
though, but it seems like it's necessary and sufficient for
their purposes here.
I just want to ask a question, Mr. Karmazin, what are the
entities that Viacom own now? What are your other----
Mr. Karmazin. Viacom owns the CBS and UPN broadcast
network. We own 35 television stations. We own 185 radio
stations. We own Simon & Schuster Publishing Company. We own
Block Buster Home Video. We own cable networks, BET, MTV,
Nickelodeon. We own Paramount Pictures. Those are just some
of----
Mr. Rush. So you really are carrying a lot of flags here
today, right? If we had MTV before us right here and you had to
defend MTV, then you would probably take a different kind of
posture in terms of some of the content of the programming on
MTV. Is that correct?
Mr. Karmazin. I guess the question I would have is----
Mr. Rush. Is that correct? Is that correct?
Mr. Karmazin. It depends on what MTV aired. I wouldn't just
sit there blindly and say I'm going to take a different answer.
If MTV had something that was inappropriate for MTV----
Mr. Rush. You would be here defending MTV?
Mr. Karmazin. Or accepting responsibility.
Mr. Rush. Absolutely. I want to ask you, have you completed
your investigation now of the Janet Jackson-Justin Timberlake
investigation? Have you completed your investigation?
Mr. Karmazin. Not totally. There's some more things, the
FCC asked for an extensive amount of material. I mean it's----
Mr. Rush. Let me ask you this question. Do you recall in
the song right before this incident happened that Justin
Timberlake sang these words ``I'll get you naked by the end of
this song'' right before the body part was exposed?
Mr. Karmazin. I'm not familiar with the lyrics, sir. I
don't deny it. I'm just not familiar with it.
Mr. Rush. If that is accurate, would that have an effect on
your conclusions of how this event----
Mr. Karmazin. I don't. I think the sense that we have and
we dealt with this, sir, in the Grammy Awards. Our feeling was
neither Janet Jackson nor Justin Timberlake should be
performers in the Grammys. Even if the argument goes that Janet
committed a crime, Justin was the getaway driver. So our
feeling was that neither one should perform. The people who
produced the show and all of our investigation of Justin were
Janet said she did it. Justin said he didn't. And was totally
unaware.
I felt very uncomfortable personally in the idea of putting
the white man on the show and the black woman not be able to be
on the show. I was convinced on the Saturday before the event
that we ought to invite both on the show, not one at the
expense of the other, that we ought to invite both and that if
both wanted to appear, as long as they apologized, we would
accept it. Justin Timberlake accepted. He apologized again and
performed. Janet Jackson declined to perform.
Mr. Rush. Mr. Tagliabue, getting to the instances of
violence, the NFL from your statements, the NFL is, you've
indicated that you abhor violence that comes across the
airwaves in some respect, is that right? What is the NFL's
position on violence?
Mr. Tagliabue. Some people think our game is a little
violent.
Mr. Rush. Beyond that.
Mr. Tagliabue. Well, like most citizens, I think violence
is abhorrent and when we've had athletes who have conducted
themselves poorly, whether it's violent criminal conduct or not
nonviolent, we have come down rather hard on them.
Mr. Rush. Do you license video games that are extremely,
extremely, not only violent, but repugnant?
Mr. Tagliabue. No.
Mr. Rush. You don't.
Mr. Tagliabue. No, we review very carefully the video games
that we license. They all are related to our sport. I meet
annually----
Mr. Rush. Let me ask you, do you license a video game
called NFL Blitz 2003?
Mr. Tagliabue. Probably.
Mr. Rush. And is the level of violence in that game, in
that video acceptable to you as the President of the NFL?
Mr. Tagliabue. I haven't seen that game, but I do know, I
believe there's a rating service for video games and we focus
emphatically the G rating, whatever it is, and we stay away
from violent video games.
Mr. Rush. If, in fact, you found that these video games
that you license which are exposed to our young children,
available to our young children, if you found that those video
games were repugnant to you, your standards, would you, in the
NFL rescind your license?
Mr. Tagliabue. Yes, and I believe we have done that in some
instances where we found that games that were marginal, I mean
they were small pieces of the market, but they went over the
line, we have terminated licenses.
Mr. Rush. There's a game that's called the NFL's Greatest
Decapitations. Are you aware of that?
Mr. Tagliabue. No.
Mr. Rush. Thank you, Mr. Chairman, I yield back.
Mr. Tagliabue. As I said, I have reviewed with our major
licensees, Electronic Arts, in particular, their standards and
our standards to try to assure myself that we are not licensing
games that are violent.
Mr. Rush. Mr. Chairman, I just--if, in fact, in your
review, would you send this committee an analysis from your
perspective of the NFL licensed videotapes?
Mr. Tagliabue. Yes, I would be very pleased to do that.
I'll work with our licensees and I will submit something in
writing to the committee.
Mr. Rush. Thank you.
Mr. Upton. We're going to take a short break because of the
votes. We have two votes on the floor. I'll ask members who
have not asked their questions to speed back. We'll start with
Mr. Shimkus next on the Republican side. We've got two votes.
I'd like to think that we might be able to start as early as
2:10.
[Off the record.]
Mr. Upton. We will resume with Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. I know it's been a
long day. As I've said in the opening statements for the last
couple of weeks, I think the world now knows that this has
touched a chord and we will respond somehow and these hearings
are designed to do that.
I'll be honest with you, when I saw that MTV was doing the
halftime, I changed the channel and I watched Independence Day
with my kids and I'm glad I did. So I wasn't expecting anything
that was--that had any social benefit for me or my kids and for
once I chose right.
But I'm not going to pardon the NFL for part of this great
debate. A local talk show host--first of all, we're all, many
of us are old broken down athletes. In fact, we used to have
Mr. Largent on our committee, a friend we know, and we served
with, a lot of us still try to perform on fields on various
sizes based upon our ability or lack thereof. We understand
we're dealing with elite athletes that get paid very well for
their performance. I would say 75 percent of all males would
love to have the opportunity to perform at that level and it's
really a privilege that they can do that. It's a short career,
I understand. They're paid well for it.
A local radio talk show personality in the St. Louis area,
I represent Southern Illinois, although I also have a big part
of the metropolitan St. Louis area and a major radio show
morning talk show host, female, posted this question which I
think it's a credible question to ask and she said does anyone
really believe that the NFL is a G-rated or PG-rated show
anymore? Does anyone really believe that? And if they do,
they're probably not watching the NFL and the surrounding thing
that the NFL has evolved to be. For years, we've had scantily
clad cheerleaders, even worse now today than before when the
Dallas Cowboy cheerleaders were the anxiety of the nation. You
have problems with performance-enhancing supplements,
performance-enhancing drugs. You've got corporate sponsors like
Coors that is using the NFL label, that is using sex to sell
their product, alcohol.
I chose right when I didn't watch the halftime show.
But I cannot, if you're watching a very exciting football
game, you cannot miss every commercial, every sponsorship.
Mr. Tagliabue, I'd like to know why do we think that the
NFL shows, games with all the trappings should fit in the
Family Hour any more?
Mr. Tagliabue. Well, I guess I would say that I do think
it's a G rated program and a very good G rated program and I
think that's shown by the size of the audience we have. This
particular game was the largest audience in television history
for a program in American television history and in the second
half it got close to a 50 rating which is really about as high
as anything ever goes. So that's not an R-rated program. If it
is, it's a sad comment on 145 or 150 million people.
So I think it is G-rated.
Mr. Shimkus. Sir, let me interrupt for a second. I'm not
going to argue or debate, but I'm going to say a lot of things
are said about you, you're known by the friends you keep.
Mr. Tagliabue. Right.
Mr. Shimkus. And you could put a great product on the field
and I watched the game, but you are known by the company you
keep. And you are known by the people who are your corporate
sponsors. I think we had a great discussion of that, the NFL
symbol.
You will be known by the advertisements that surround the
game which generate the revenue to allow that to happen. And I
don't want to belabor the point. Folks who follow this
committee and I have small kids, too. They're 11, they're 8 and
they're 4. Tell me how we can watch and enjoy the Super Bowl
game without being embarrassed?
Mr. Tagliabue. Well----
Mr. Shimkus. I didn't watch the halftime. Take away the
halftime. I didn't even watch the halftime. Tell me how I can
watch with my 11, 8 and 4 year old without being embarrassed?
Mr. Tagliabue. Well, first of all, I would say this, I
think we have a very elite and selective group of corporate
sponsorship partners. They are at the front line of respected
companies with respected products and services in America.
Second, put aside for the moment the advertising in the
Super Bowl game, which as I said before, I haven't seen. I've
heard about it. I haven't had the chance to look at it. I will.
But I think that our advertising, the advertising in our games,
which is not our advertising, it's the advertising that our
network partners rightfully accept is also extremely high
quality and elite companies. In many cases, technology
companies and others who find our audience to be the high,
educated, quality, R-rated audience that they want to sell
their computers and their software and other products to. So we
are striving in every way possible and I think we're doing a
very good job. Most other sports have gone off broadcast
television. The only two sports that continue to be on
broadcast television in large volume are National Football
League and the Olympics. And I think that's a very positive
comment about the widespread acceptance of the quality of our
product and the respect for our game and our athletes.
Mr. Shimkus. My time is up and I appreciate that response.
I would just tell you that I'm disappointed and I think you
could draw the same numbers by putting a good product on the
field without the extraneous things that are causing us to have
this cultural warfare debate.
Mr. Tagliabue. There are things that disappoint me too. I'm
sure you and I could agree on quite a bit, but not on the
general proposition.
Mr. Shimkus. Mr. Chairman, I yield back.
Mr. Upton. Mr. Engel?
Mr. Engel. Thank you, Mr. Chairman. I said in my opening
remarks that I thought that everything that had to be said had
been said, but not everyone had said it. I guess I was wrong.
But I watched the Super Bowl and I have to tell you, I'm one of
the people that watched it and missed the incident. I must have
turned my head and missed it and I don't mean to make light of
it because as I'm offended. I also have three kids and I'm
offended as anyone by what Jackson and Timberlake did.
But I think that what we ought to do in Congress is use
this incident not to grandstand or to tell our constituents how
appalled we are, but to try to ensure that these things don't
happen again and then correct some of the problems of violence
and indecency and in my estimation we're only going to do it if
we work with the industry. I think it's clear to me Mr.
Karmazin's comments today, he's apologized, he's embarrassed.
He doesn't want it to happen again. Mr. Tagliabue, as well.
They're not here as adversaries and I think that we in Congress
need to work with them to make sure that it doesn't happen
again.
So let me just ask a very simple question. Let me start
with Mr. Karmazin. In your opinion, what should we in Congress
do? We obviously have the Chairman's bill, talking about the
fines. You've said in your testimony that you are considering
revisiting some of the things. Mr. Stearns has mentioned the
contracts that weren't signed by the performers and you said
you'd look into that. And I think in reference to Mr. Cox's
question, you said you were going to revisit your standards and
practices for advertising.
What should we be doing and what should we be doing with
you so that this doesn't happen again?
Mr. Karmazin. I think the most helpful thing that Congress
could do, you know, would be to urge the FCC to undertake a
rulemaking on this subject of indecency so that people who are
operating with this responsibility have a clear cut roadmap as
to what constitutes indecency. I think that would be a huge,
huge step because I truly believe that whether or not if the
CBS or NBC or ABC and a lot of the local broadcasters, I
seriously don't sense from knowing who is in this industry that
people want to broadcast indecency. No one wakes up in the
morning and says let me see how far I can push this.
So I do think that it would be a huge, huge difference that
could be made if, in fact, we could find something that the FCC
would do that the courts would approve and that would shine a
very, very bright light on something. I recognize the
difficulty for the FCC. These are people who absolutely have
attempted to do an extraordinary job under difficult
circumstances, but I think this would be a great step forward.
Mr. Engel. Well, I think that's a question in the second
panel that many of us will be asking the FCC. You mentioned
that CBS put on a 5-minute delay on the Grammys to bleep out
whatever offensive things might happen. Obviously, it's a very
delicate balance between first amendment and not wanting to
have anything inappropriate. Could you expand on some of that,
other things that you're looking at or revisiting to make
sure----
Mr. Karmazin. We have reaffirmed--we've had a long-standing
policy that those so-called seven dirty words not appear, even
though arguably they had the ability to appear in this safe
harbor period of time. We don't believe that those seven dirty
words ought to be on, even when you can do it, so we've
reaffirmed that policy to make sure that everybody understands
it. I believe that--I sent a note to our organization, our
entire organization that basically made it known that what
happened is not acceptable, is not something that we were aware
of, so that they understand that the company is clearly
committed against it. I mentioned that we're taking our
television stations and that we are putting our local stations
on a delay. I've mentioned that we're going to meet with our
affiliates to see if there's a way that together we can make
sure that they're comfortable with the programming that we're
airing and making sure that they have the responsibility as a
licensee and that they live up to their responsibility.
And you know, I don't know, those of you who watched the
Grammy Awards as closely as did, but when Christina Aguilera
came up, she was wearing a rather low-cut dress and if you were
to look at our coverage of it, you saw her principally from the
shoulders up. So to the crotch question that came up during the
halftime, we certainly have learned how to even shoot live
events to make sure that if somebody is doing something that we
don't want on the air that we have the ability to making sure
that the people at home don't see it.
Mr. Engel. Thank you. I was wondering if I could briefly
ask Mr. Tagliabue the same thing. What should we be doing in
Congress, in your opinion?
Mr. Tagliabue. I think what you're doing today is very,
very constructive because I think it's been a very well thought
out and thought provoking series of comments from the committee
members that affects a lot of people, certainly us in sports
and I'm sure everyone in television, in terms of the House of
Representatives is so broadly representative, that's partly the
genius of our Constitution, make clear what you think the
standards are and what your constituents think the standards
are because we have a decentralized economy. A lot of
companies, a lot of advertisers, a lot of ad agencies, what
we're sitting here talking about is the end result, as you well
know, hundreds, if not thousands of companies with tens of
thousands of employees and everyone needs to get a sense of
outrage, if that's the right word and where the line needs to
be drawn. I think Mr. Karmazin and I have a pretty good sense,
I'm sure Mr. Rooney and Mr. Richardson do, but I think that's
an invaluable service.
Mr. Engel. Thank you. Thank you, Mr. Chairman.
Mr. Upton. Ms. Wilson?
Ms. Wilson. Thank you, Mr. Chairman. Mr. Karmazin, you said
that in the response to a previous question that we not only
fine them, we fire them. Who have you fired since the Super
Bowl?
Mr. Karmazin. We have not found anybody at Viacom that has
done anything wrong in connection with the event that took
place. The comment that I made on firing people has to do when
radio announcers or any other announcers did something that we
feel crossed over the line and we fired them.
Ms. Wilson. Who is the producer of your MTV show?
Mr. Karmazin. I don't remember her name, but it's all done
under the direction of the CEO of MTV who is Tom Freston, under
Tom Freston is Judy McGraff. Under Judy McGraff is Van Toffler
and then we had a series of people, all of whom I've met with
personally including the people who were field producers, the
people who were at all of the meetings with the NFL and CBS and
I don't recall, I'm sorry, all of their names. We've provided
them to the FCC, all of this information, but there was nothing
that we encountered that these people did.
Ms. Wilson. I guess what I'm trying to get at here is
within your company, you're the leader and you set standards.
And one of the things that communicates those standards to
everyone else is when somebody makes a lousy judgment call,
there's a consequence for the future of their career or for
their compensation, for all kinds of other things. What message
have you sent to the rest of your employees as to what your
standards are?
Mr. Karmazin. I guess we have to find out what real mistake
they made. We can find the people who booked the acts and we
say no, these acts were acceptable acts. We can deal with the
people who decided that the lyrics were right because these
lyrics were heard in your city on radio stations on a regular
basis. We can sit there and say whether or not Kid Rock should
have worn the American flag. There was enough question in that
regard as to the legitimate difference as to whether or not
wearing it was okay because again, he did support something.
There was people who had tapes of the rehearsals that were
done between Janet Jackson and Justin Timberlake. They didn't
do that. They were blindsided. We had people in tears who after
the event was over, people rushed off the field so proud that
they had put on a show without ever knowing what happened with
the Janet Jackson episode. So right now, there's nothing in our
investigation. By the way, outside attorneys as well are
investigating it that we have encountered somebody who did
something within our organization that deserved to be fired.
Ms. Wilson. Let's talk about those lawyers for a minute.
And in particular, the Affinity Broadcasting case that's been
referred to before where the FCC has found that there was
indecency. I have the case here and I was going to pull out
some excerpts and ask you whether you thought that they were
indecent, but I'll spare everybody that because it's really
pretty gross. It makes what happened at the Super Bowl seem
like nothing at all.
I don't think there's anybody, reasonable American in this
room who wouldn't find what went on on that radio show to be
gross and indecent. The real question in my mind is you said
``I have people who are advising me that this is not
indecent.'' It sounds to me as though you're playing the
``let's see how far we can push this game.'' And I can find a
lawyer who will defend any position, but the decision, sir, is
yours, as to what you stand for, what your company represents,
and why are you continuing to say ``oh, no, this wasn't
indecent at all.'' What does that say about you?
Mr. Karmazin. It says that we believe in the first
amendment. It says that we believe in our right as a
broadcaster to broadcast things that are not indecent, that we
clearly believe it's gross. I don't believe that the
Constitution deals with gross speech. I think it deals with
indecent speech and that's why we had suggested and have
suggested for a long time that the FCC institute a rulemaking
so that therefore it's clear what indecency is. So I don't want
indecency on our air. And I'm not the person that's equipped
for indecency. I can decide gross. That's why we fired those
people that probably did what you have in front of you. But
that's a different standard than what the Constitution has said
and the courts have said.
Ms. Wilson. Let me ask you about those standards because as
I understand it, this was at least the third time that they had
run this marketing promotion. What did you do after the first
time they did it, before it came to the FCC?
Mr. Karmazin. The fact is that I had no idea they ran that
marketing promotion the first or the second time and the first
time I learned of it, first time I learned of it and I also by
the way checked to see who knew about the first and the second
and we fired everybody that was connected with it, that was
appropriate at the time. So I'm not proud--I take
responsibility that it aired. Shame on me. It aired. But I do
think that when it occurred that we fired, we fired the general
manager, fired the programmer, I don't have to go through all
the list of the people that we did and again, that's separate
and apart from whether or not this signifies under the court's
ruling and under the Constitution of whether or not it's not or
not.
Ms. Wilson. Thank you, Mr. Chairman. I appreciate your
time. I would just like to say that we've got reassurances that
this won't happen again. I believe it won't happen again from
the NFL because I don't think they're going to contract with
your company again and I'm glad they're not. But I'm not at all
convinced that you get it, sir. I have a right to freedom of
speech, but I also have an obligation to be responsible for
what I say and I see no sense of responsibility here.
Thank you, Mr. Chairman.
Mr. Karmazin. I appreciate your comments, Congressman.
Mr. Upton. Mr. Walden?
Mr. Walden. Thank you, Mr. Chairman. Mr. Karmazin, I think
I got you by 2 years. I started in radio when I was 15 and I'm
47 now.
Mr. Karmazin. I've got you by more years than----
Mr. Walden. I think you said you were in the business for
30 years, and I'm unique in this committee and probably the
only licensee of commercial broadcast stations. I own and
operate five radio stations and I want to go to--I guess the
issue on the Super Bowl of the choreography, because I think I
heard you say that Janet Jackson, her choreography and Justin
Timberlake were the only three who knew what was going to
happen in that she was going to be completely bare.
Mr. Karmazin. I don't know whether or not any of her
people, I can tell you that there was nobody at the NFL that
knew and there was nobody at CBS that knew and there was nobody
at MTV. It's possible that there was an assistant choreography
or somebody designed a costume, in other words, that allowed
for this to happen. I can't say that it was just the three
people, but none of the people who knew were part of Viacom.
Mr. Walden. That's what I was getting to. Who did the
choreographer work for? You said she talked it over----
Mr. Karmazin. She was Janet Jackson's choreographer.
Mr. Walden. And that choreographer, as far as you know,
never communicated, nobody in that group that talked that
you're aware of ever shared any of that information with MTV?
Mr. Karmazin. Correct. And I think you'll see, based on the
thorough investigation that's been done that was submitted to
the FCC, that's what our information says.
Mr. Walden. All right. I share a lot of the outrage that my
colleagues have shared about where we've come in media, what's
being broadcast today in radio and over TV, but frankly
sometimes I think it's a lot worse on radio. And I'm intrigued
by your comments about a lack of standard for what is indecent
and I commend you for your call for the FCC to do a rulemaking
to define that because I suppose it's politic to say this, but
I doubt if we could sit here on this committee and write an
indecency standard very easily. I think it would be very
difficult to do.
And as I've read through some of the background on these
cases, it seems pretty obvious that the FCC has wavered at
times, even the Bono F word, one area in the FCC says shouldn't
be fined and now we hear may be fined. So I think if we're ever
going to get to the problem here, there have to be clear
standards so that we can have swift and certain justice so that
you don't have 200,000 complaints a year against 370 or 380
shows and maybe two fines. Because nobody knows the rules.
And so if we really want to get at this, it's really the
next panel that needs to be prompted, I think, if we're going
to give them this new authority and fining ability, to come up
with a clear understandable standard, much like we used to have
with the NAB code of what we did or didn't do.
But one of the things that I'm troubled with and I think my
colleague from Florida raised this issue earlier and that's
about the affiliates. And I think my colleague from California,
Mr. Cox raised the issue about networks.
And my question is if I'm contracting with a network for
programming and let's put it in a radio context now, maybe CBS
Radio or some other programming in radio and my station is
unattended between midnight and 5 a.m., do you think the
provider of that content should be liable when they know that
their product is going to be broadcast on broadcast license
stations?
Mr. Karmazin. Yes, I've said to you or to the committee
that said do I think a network should have responsibility.
Mr. Walden. Right.
Mr. Karmazin. During the break I didn't check with my
lawyers, but I still say the same thing that I don't have any--
I'm not looking to wash my hands of it as a network, but I do
think that if you're a licensee and people have talked about
the value of the spectrum and the American public, then I don't
think you ought to say that you don't want to have somebody on
duty from midnight to 5 a.m. and not be responsible for what
comes through your speakers. The fact that it's a safe harbor,
you know these are all nuances.
Mr. Walden. Mr. Karmazin, what's the smallest market you
have in O and O?
Mr. Karmazin. Let me tell you that my son owns a radio
station in Beaver Dam, Wisconsin, so I have a pretty good
handle of the small market.
Mr. Walden. How small is Beaver Dam?
Mr. Karmazin. Pretty small. It's a suburb of Madison and I
think Madison is pretty small.
Mr. Walden. I'm in a town of 4,000. I don't know what
Beaver Dam is and my District is one of the most rural in the
country and I just made a 600-mile round trip swinging to only
6 of the 20 counties and I've got to tell you, nearly every
radio station I went into is using a Jones format satellite
service or ABC hot ace. You go through the various providers,
wait, and they're unattended or they wouldn't be on the air
because the dynamics are such you'd go broke, if you had to
have announcers there 24/7.
Mr. Karmazin. But Congressman, there's not an issue with
those. In other words, what we're saying is the fact that the
people who were broadcasting those formats to particularly
small markets, very few of them are taking an approach,
recognizing that there's not somebody there to be able to bleep
something.
Mr. Walden. That's what I wanted to get to because the
reality of today's really small market broadcaster is such that
you'd shut it off at 11 o'clock at night like we all used to
because you didn't have a single ad you sold overnight and at
least now the EAS will run if there is a disasters because you
can automate that. You can still insert weather and news and
other timely programming, frankly, without somebody there and
it will call you if there's a problem.
But to think that--and we're contracting with services that
darn well should know, tell me Disney ABC doesn't know what
their jocks, where their voices are going when they're sitting
in their studios in Dallas. They know they're coming out over
small market broadcast stations. And so to me, it seems to me
there should be some way to indemnify and hold harmless against
the licensee when you're contracting with somebody upstream.
Mr. Karmazin. I know where you're going, but I think, this
is as a broadcaster and I know it's not related to this
necessary issue. As a broadcaster, you never want to let the
licensee, it would seem to me, off the hook.
Mr. Walden. I understand.
Mr. Karmazin. Because then we could sit there and say well,
we have indemnified or we indemnified somebody so that they're
not responsible for the morning drive time. So I think it's a
dangerous area. I understand what you're trying to accomplish.
Mr. Walden. What I'm trying to do, if we're going to
increase the fines to $275,000 per utterance and in today's
testimony, two of my colleagues have used the H word a total
three times and I don't think we bleeped, but then we're on
cable, so that's okay. It's not, but that's the reality. I'm
not saying I shouldn't have liability, but somewhere here, I
want to make sure the FCC sorts out the difference between
programming I originate and I should be held fully accountable
for and programming companies like yours or Disney or somebody
else originates where I have limited ability in reality to
control.
Mr. Karmazin. I think that would be a good idea for the FCC
to look into. I think it would be.
Mr. Walden. I guess, Mr. Chairman, that's all I have.
Mr. Bilirakis. Would the gentleman yield?
Mr. Walden. yes, certainly.
Mr. Bilirakis. Thanks, Mr. Chairman. Do all of your
licensees, broadcasters that you work with have the authority
to pre-empt stuff coming down from the networks?
Mr. Karmazin. Sure.
Mr. Bilirakis. They do? Is it in the contract? What kind of
authority do they have?
Mr. Karmazin. But they may not know what's coming if it's a
live feed.
Mr. Bilirakis. They may not know what's coming. In the
cases where they do know what's coming, do they have that
authority?
Mr. Karmazin. We have, in our affiliation agreement so that
CBS has 212 affiliates throughout the United States and we have
an affiliate agreement, written, signed agreement with everyone
and in those agreements there are terms and conditions
including the right to reject, including each of them having
the ability to have a basket of a certain amount of pre-
emption, so that if somebody deems that a local basketball game
is more important than carrying 60 Minutes, within a basket,
they have the right to do that. They have the right to do it in
the event of emergencies, so obviously, if there was a local
emergency they would have the right. And then they have the
right to do things that just may even be in their financial
best interest, a certain amount of programming.
Mr. Bilirakis. Do they have the right for any reason other
than those you have just stated? For instance, I don't like
this, it doesn't jive with my community area.
Mr. Karmazin. Yes, and they have done that within that
basket of discretionary programming that they could elect not
to carry.
Mr. Bilirakis. Is there a limitation to those rights?
Mr. Karmazin. Absolutely there's a limitation to those
rights?
Mr. Bilirakis. There is?
Mr. Karmazin. Yes.
Mr. Bilirakis. What are the limitations?
Mr. Karmazin. They vary by market. It's something that is
discussed every time you get into an affiliation. What you're
trying to protect, Congressman, is the ability to create a
Chinese menu, to be able to have somebody say I could make more
money by running at 11:30 at night a rerun of Sex and the City
which will now be syndicated instead of carrying David
Letterman. So at this point you can't have a network that is
not going to be able to clear stations in every market in the
country.
Mr. Bilirakis. But I'm concerned. I think you know what I
mean, Mr. Karmazin. I'm concerned about content. Do they have a
right to just not buy it because of the content that it's
inconsistent with the philosophy of the general area.
Mr. Karmazin. To the point, as an example, CBS aired a
program, a Victoria Secret program. A number of stations did
not want to air it and they did not. We aired a mini-series on
Hitler that we thought it was very well done. It won an award
for it. There were a couple of affiliates that didn't think
that it was appropriate for their market, just the name Hitler
was not--they pre-empted it.
Mr. Bilirakis. I'm sorry, Mr. Chairman. Thank you.
Mr. Upton. Mr. Terry.
Mr. Terry. Mr. Karmazin, just a few questions, more trivia
than berating. Are there any consequences, contractual,
noncontractual, intangible, that will be paid by the
performers, Janet Jackson and Justin Timberlake?
Mr. Karmazin. I don't know.
Mr. Terry. Any consequences to them, other than the fact
that her album probably is going to hit the charts at the top
now?
Mr. Karmazin. We're not in control of that. We don't own
the album. We have no vested interest in the album, that we
have not, I can't tell you whether or not the FCC is going to
find some basis on the Communications Act as a way of going
after----
Mr. Terry. Those can't go after the performers.
Mr. Karmazin. I'm not sure you--here's another area that I
don't want to play lawyer on. I think there's enough lawyers
who can figure that one out. I can't tell you whether they can
or not. That I don't believe that we know what our ability is
to do it. I certainly have asked the question as to what rights
we have to deal with it.
Mr. Terry. Just marketplace.
Mr. Karmazin. Again, I described earlier to Congressman
Rush's point of view about my feeling about the performers on
the Grammy Awards. I know that this is a very difficult area as
to what we have control over for them. We could sit there and
say that should we not play Janet Jackson's music on our
stations? I don't know----
Mr. Terry. You may not book them for the next Grammy
Awards?
Mr. Karmazin. I think you should assume that we will take
that kind of--and I'll tell you, I don't want to understate the
importance of this issue. Somebody decided to change our show,
so forgetting any reason that you're investigating it, even if
they changed it not in an area of indecent, how dare anybody
who is a performer to decide what the script should be?
Mr. Terry. And that's made that person and that
choreography inherently untrustworthy to the point where I
don't think that person should be hirable. I just wanted to
know if there was going to be any marketplace, if you felt that
from your experience. But do you think that under FCC rules
that CBS should be fined for what Janet Jackson did?
Mr. Karmazin. I do not.
Mr. Terry. Why?
Mr. Karmazin. And the reason I do not is that we had all
the precautions in place, that any reasonable broadcaster
should have in place, including a delay on the audio. We had
exercised, I demonstrated a streaker at halftime that this is
not what we wanted. It was on for three quarters of a second
and as soon as it happened, we did it. We've conducted a
thorough investigation. I don't know what else we could have
known.
As the Commissioner pointed out, the song that Janet
Jackson was there to sing, she was a legitimate performer who
had never done this in her life. So it's not like one could say
well, you should have known better when you booked Janet
Jackson. It was a reasonable decision to book her. We went
through her script. We went through everything----
Mr. Terry. I don't want to be rude, but I've two other
questions.
Mr. Karmazin. Cut me off any time you want to.
Mr. Terry. And a minute to go. So no one from MTV has been
fired, even though obviously someone from MTV had some
responsibility, although you may not say they were culpable,
somebody had responsibility over this?
Mr. Karmazin. I have the responsibility for everything that
goes on in my company, but no I have not found anybody at MTV
that did something that would have warranted that they be----
Mr. Terry. Even though there's a responsibility and a
breach, under their watch, there will be no heads that roll?
Mr. Karmazin. Until we find out----
Mr. Terry. Where we live heads always have to roll if
something happens.
Mr. Karmazin. Well, scapegoats are something that I try to
avoid. What I try to do----
Mr. Terry. People have responsibility. They need to
exercise that----
Mr. Karmazin. And I think that I've said that I'm
responsible for what goes on and if, in fact, I'm not going to
just find a scapegoat so I could say somebody's head rolled.
Mr. Terry. But people are responsible. Last question,
you've hit on many times that the FCC needs to clarify their
language. Would you, as a member of the overall industry,
broadcast industry, like Greg mentioned with the old NAB rules
where they developed their own set of guidelines and rules,
would you work with this committee, Congress or the FCC, to
establish written guidelines of conduct or would you just
simply say that's the FCC and your job?
Mr. Karmazin. No, I would not just say that. I would
absolutely cooperate.
Mr. Terry. Thank you, that's it.
Mr. Upton. I just might ask, would it be possible to get an
affiliate agreement that we might put in the record, a standard
form?
Mr. Karmazin. Mr. Chairman, we'll give you anything you
want.
Mr. Upton. Good. We'll put that in the record. Thank you.
Mr. Bilirakis. Is there a standard contract or a variety of
them?
Mr. Karmazin. Again, we were trying to balance the time
issue, there is no limit. There is no limit to the amount of
time an affiliate can cancel something for reasons of content,
okay? But we will give you the full range, if what you're
worried about is we're going to give you a boiler plate and
nobody else has that, we will give you and I'm sure the
affiliates in your market would be happy to provide it to you,
if we didn't. We'll give you everything that you need to know
on the relationship of the affiliate agreement.
Mr. Bilirakis. We can have that within a couple of weeks.
Mr. Upton. We are going to have an affiliate at our next
hearing, we're going to have an affiliate come.
Mr. Deal?
Mr. Deal. Thank you, Mr. Chairman. As I have listened to
the opening statements and the testimony and the questions here
today, it sounds to me like we have two worlds that have
collided. One is the world that we all hear from and that is a
world that is outraged by what has happened in recent weeks
over the public airwaves because they do perceive that you are
the invited guests into their home and you have badly
misbehaved.
The second world, Mr. Karmazin, seems to be your world.
That is a world in which you've testified that you have heard
no complaints from any of your advertisers about what went on
at the Super Bowl. Now there is something that is colliding
here and that is colliding in this testimony today that
requires that we take action. Now I quite frankly think that
the NFL has gotten the message. I think they will do everything
within their power to make sure this is not repeated.
I have not been convinced that the same is true from your
world. On five different occasions in Mr. Tagliabue's testimony
and perhaps even more, red flags were waved, almost to the
point that they pulled the halftime ceremonies. I heard nothing
in your testimony, nor do I see in your written testimony that
any red flags were ever waved to you or to MTV. Am I incorrect
in my analysis?
Mr. Karmazin. In some ways, sir. With all due respect,
we're not living in two worlds. We said the same thing about
outrage. We are outraged as to what happened at the Super Bowl.
Mr. Deal. Let me stop you there. Mr. Tagliabue was
concerned about things, not the incident with Janet Jackson. He
was concerned on at least five different occasions about the
way the music was being portrayed, about the other things that
went along with it. Did any of those red flags ever cross your
mind?
Mr. Karmazin. Prior to the event, prior to the halftime
show, I had zero role in the show, zero role in the show.
Mr. Tagliabue will confirm that he had meetings. I was
never at meetings----
Mr. Deal. I'm not speaking to you personally. You are the
representative of every entity involved here from the ownership
of CBS to the ownership of MTV, am I correct?
Mr. Karmazin. You are absolutely correct.
Mr. Deal. Yes sir. Did anybody under you then, if you were
you not personally, was there ever anything raised of saying we
ought to be concerned about this?
Mr. Karmazin. Absolutely and the evidence shows and Mr.
Tagliabue mentioned it in his testimony that the head of CBS
was concerned about some of the information he was getting
about the artists and the cooperation of MTV with the NFL and
the CEO of CBS took corrective action and improved the
situation. So yes, I mean there was.
The CEO of MTV was involved and took action when he heard
from the head of CBS that there was a question about the
relationship. There were lots----
Mr. Deal. So it got better then? In other words, we could
have had a worse presentation had this not happened, is that
what you're saying?
Mr. Karmazin. You characterize it better or worse. There
were discussions about who the artists should be, whether or
not certain----
Mr. Deal. That sounds like to me nothing changed in the
process of those discussions, is that right?
Mr. Karmazin. If that sounds to you----
Mr. Deal. Yes, it does. Let me ask you this. We've talked
about a lot of things, accountability. You used the word
``indemnification.'' I think you were relating to the
discussion about the folks who pick up your broadcast,
etcetera.
I would like to ask you, do you have any indemnification
language in your contracts to indemnify you or MTV or CBS for
any fine that might take place? Do you have written language
with your performers that they will indemnify you in the event
you're fined because of their conduct?
Mr. Karmazin. Yes. In many of our employment agreements,
particularly on the radio side where somebody has a microphone
in front of them and they're doing a live performance, what we
say is we will indemnify you, the performer, for material that
we give you, so that if you're reading a commercial and someone
is going to sue you because the facts in the commercial are
wrong, we'll indemnify you. But if you're going to go on the
air and say something that is inappropriate, you indemnify us
and yes, we have used that indemnity, not necessarily on
indecency, but we have used that indemnity to pay us because
people have used----
Mr. Deal. So if you go before the FCC and they decide that
there's a fine coming down the line, you can't use the argument
then that you had no way to protect yourself against it because
you could have, you could have indemnified yourself by such a
contract clause with a performer who may go out of line, even
though you had no reason to suspect they could.
Mr. Karmazin. No, I think that if we went before the FCC
and the FCC were to question something that happened on our
facility, the fact that--we're responsible, and I have said it
maybe not enough times, we're responsible whether we're
indemnified or not indemnified. We take the responsibility that
we're the licensee and we're responsible.
Mr. Deal. All right, so that will be your position before
the FCC when the issue of fines comes up then. Is it you're
responsible with no excuses, is that right?
Mr. Karmazin. We have absolutely not taken the argument
that we're not responsible for what happens on our air.
Mr. Deal. Mr. Chairman, I would just conclude more or less
with a statement and that is we've heard the argument here now
that the FCC is the one who ought to redefine the definition of
indecency. Perhaps that is true. I find it objectionable that
those who have been granted the free use of our airwaves would
not see fit to restrain themselves within their own conduct to
define conduct that is less than indecent, that is, that which
we've heard the use of the words crude, inappropriate.
It would seem to me that if you have the confidence of the
public and wish to maintain it, then you would establish
standards and don't require the FCC to set standards defining a
constitutional level. You should be above that. Because if all
you do is race to the bottom of a standard, then this is what
we're going to get and I believe that's what's being advocated
here.
Thank you, Mr. Chairman.
Mr. Upton. Ms. Bono.
Ms. Bono. Thank you, Mr. Chairman, and thank you both,
gentlemen, for staying so long. I don't believe it's as simple
as my colleague just stated. I think at the end of the day you
also report to a whole bunch of other people, shareholders or
whomever, and so I don't believe it's that simple. And I want
to compliment you for what you did do with the Grammy's. It
worked. Isn't that simple? It was beautiful. Even what you did
with Christina Aguilera, where you raised the camera. It was
obvious you did that and I thank you for doing that. I was
watching it with my daughter and I thank you.
Isn't it that simple, the 5-second delay, for these sorts
of circumstances? Doesn't that kind of solve our problem also?
Mr. Karmazin. I thought it did. I just want to hopefully
make sure that someone is not trying to figure out the next
thing out there and that we have the flexibility. We used to
think that having an audio delay because someone was going to
say the F word or somebody was going to do that was the only
thing we had to worry about. Now we found out we were wrong.
Very wrong at the Super Bowl. So we've now taken a step.
Hopefully, we can be confident that neither audio nor video
inappropriate programming gets on the air. I hope that's the
case.
Ms. Bono. And I also recognize the fact of what you said
happened with the streaker that we did not see that and I thank
you. That is an important example to point out and understand
the difficulties here that you're faced with.
I think this is a little bit too late and that's why we're
here in Congress visiting this issue, but I have--there are not
really congressional issues or questions or legislative
answers, but how much in the ballpark--I had read that the
Super Bowl, the acts were paid seven figures, is that true?
This particular Super Bowl were they paid acts?
Mr. Karmazin. I have nothing to do with that part of it. I
know that MTV which produced it did not make any money, so this
was not done--it was done, by the way, for MTV----
Ms. Bono. No, the question was simply were the artists
paid? I don't quite buy your argument you presented a long,
long time ago that these contracts go unsigned. I find that so
impossible to believe that you could present that in this
circumstance that there would be perhaps over a $1 million
contract that's not signed.
Mr. Karmazin. And again, I am not involved in the
production. It was really done by--I think AOL contributes to
the NFL for the payment of the halftime show and I think that
money gets used to produce the halftime show. I don't believe
anybody gets paid. I believe that they get expenses to cover
stuff, but I don't believe anybody made money, but I don't----
Ms. Bono. So the real compensation is in the exposure, pun
intended, I guess, and the fact that Monday morning she could
wake up and be--she meaning Janet Jackson--was on the front
page, not the quarterback of the winning team. And I empathize
with the NFL and I sympathize with the team owner because I
think that was very outrageous, but nonetheless, she got what
she wanted and we're talking about her, like I say.
So when you said--you gave a nice apology, both of you did.
But I think people are apologizing all the way to the bank.
Mr. Karmazin. There were so many--if you go through--so
many performers at the pre-game show, at the halftime show that
contributed there. I don't believe and over the years, by the
way, so this the first time that this has occurred at the Super
Bowl. I don't believe people are booking themselves or trying
to get onto to the Super Bowl because they want to be on the
papers on Monday.
Ms. Bono. Really? I'm sorry. I don't believe that acts
were--maybe, Justin Timberlake, but I don't know that she was
in the top five certainly that week. I don't believe she was on
the--and to tell you the truth, and this is just a comment as a
parent, I was watching this thinking this is so wonderful and
this is going to be an off-the-wall comment. It was so
wonderful here is Ms. Jackson proving all of the talent she has
and she's a true artist and true performer and that none of her
brother's negative publicity is affecting her and that argument
was certainly shot, it was proven wrong. That's the truth of
the matter here as well.
So I thank you for your apology. I thank you for the 5-
second delay with the Grammy's and I actually would like to
hear briefly, if you have specific comments about the specific
legislation that is in front of us, and if you've read it and
if you are supportive. I know you have said the FCC ought to be
more involved, do the rulemaking.
Mr. Karmazin. I thought the language on increasing the
fines could be a deterrent. I think it is possible. I think it
needs to have some flexibility and again, maybe somebody who
was a victim of something, you know, again, you can leave it to
the FCC to decide, should be treated differently than someone
who does something blatant. So the point that I would make
would be I would give the people who are enforcing these
increased fines flexibility to decide whether or not $275 is
right or maybe $150 is right or maybe a lower fine is right,
based on their compliance.
One of the worse things that somebody could ever do is to
lie to the FCC, you know. That is the death penalty. The idea
is that when the FCC is investigating these things, that the
sense is that you want broadcasters to come forward, admit what
they've done wrong and I just think that if there could be some
flexibility on the Commission's part, not the licensee's part,
to decide what the--there's a sentencing guideline, you know?
Judges have a sentencing guideline and you might want to have a
sentencing guideline that gives the Commission some
flexibility, but I think the fine could be a deterrent.
Ms. Bono. Mr. Chairman, I know I'm over my time. I believe
that we've had some great testimony that will be very helpful
as we go forward and I hope the gentlemen appreciate their
comments themselves as we move forward in the future.
Thank you.
Mr. Upton. Mr. Gonzalez.
Mr. Gonzalez. The question is for Mr. Karmazin. You've
indicated that there was some objectionable content during
halftime and I guess it's the wardrobe malfunction that you're
referring to?
Mr. Karmazin. No, I was saying that personally, this is
not--I found Justin Timberlake dancing, I found the wardrobe
issue, I found the crotch grabbing and I found the American
flag wearing all things that in my old eyes, I found
objectionable.
Mr. Gonzalez. Well, you may share the values of most people
that were watching, so why wouldn't that somehow factor in as
to what you do allow?
I know it was MTV that produced it. I know that NFL
actually had protested some of the content. They were assured
it was taken care of. It obviously was not. And I mean if you
really do look at the gyrations and the dancing and then the
lyrics of some of the songs, surely, you would arrive at a
conclusion that it would have been inappropriate for a halftime
show for the Super Bowl.
Mr. Karmazin. Congressman Gonzalez, the rehearsal, again,
on tape of Nelly who was the performer who grabbed his body
part or his pants, I don't know what he grabbed, was not done
during the rehearsal. That same performer, that same performer
was on the Super Bowl 3 years earlier, did not do that. We had
no reason to believe he was going to do it. It's a live----
Mr. Gonzalez. Well, then how do you suggest that you are
able to somehow have some sort of preview that allows you that
kind of control?
Mr. Karmazin. I missed that. I'm sorry, sir?
Mr. Gonzalez. What safeguards do we have then that that
would be brought to someone's attention? In other words, you're
saying that if someone basically deceives you, and tells you
they're going to present one thing and then present another,
there is nothing you can do?
Mr. Karmazin. I'm not suggesting that something like that--
you've asked me what I found distasteful and I found the--we're
not dealing with whether or not there is a standard of
indecency that someone, you know--there are a bunch of people
culturally that are going to say that that's a racist comment
on Mr. Karmazin's part, okay, because of the fact that that's
the reason he's saying it.
I mentioned it in the case of Christina Aguilera. We
learned how to shoot things because this now became an issue.
So that what did do? We certainly did see it on the Grammy
Awards because we were very sensitive to it after the fact. The
idea of the American flag was something that could be debated
all day long.
Mr. Gonzalez. On the Grammy and where there was a low-cut
dress, but for the incident with Janet Jackson, I would have
been able to have viewed Christina Aguilera in her total low-
cut dress?
Mr. Karmazin. My guess is, sir, you certainly would have
not seen anything indecent because we would not have aired it,
but you might have seen more skin than you saw this time. I
think it was a reaction to what happened. It's a sensitizing of
everybody to what's going on and I think we made some progress.
Mr. Gonzalez. I guess it goes back to what Congresswoman
Wilson was alluding to and that is and the way I interpreted
what she was saying, certain things may be legal, but are they
right? You can call your lawyer and figure out what's legal,
but you make the determination whether it's still right and
that's the responsibility that somehow we're trying to
establish and I don't know what's going to happen with the FCC
in increased fining and such.
The second part of my question because I have about a
minute left, you've indicated that maybe the networks should be
on the hook, in other words, that it would be appropriate of
the FCC to levy a fine directly against the affiliate. I'm new
to the network. I'm new to the committee. I'm not real sure
about the regulatory scheme, but I'm told that only the
affiliates will be the ones on which fines will be levied and
some are owned and operated by the networks, so you will feel
that pain. But let's just say in that particular world and we
get those changes and fines will now be levied directly against
the networks, what size of a fine would get the attention of a
major network?
Mr. Karmazin. Two things, just real quick, hopefully I
wont' take it away from your time. We have people at each of
these business units, adults, who are responsible for what is
appropriate on their channel. You don't want me to necessarily
be responsible for Nickelodeon. I really don't have enough
knowledge of children's programming, so the fact is you're not
dealing with me, you're dealing with the people who are doing
that.
Regarding what size is appropriate a fine? I take any fine
seriously, any amount and I think most broadcasters will.
Relating it to revenue is irrelevant. You don't want--many
people who speed and get a speeding ticket, they can afford to
pay the $65. But it's not the $65 that is the deterrent. You
need to get it to $1,000 because if Donald Trump is speeding,
what's $65? So why don't put a speeding ticket related to how
much revenues somebody----
Mr. Gonzalez. Because that person's driver's license is in
jeopardy.
Mr. Karmazin. I think the idea, again, I mean my opinion,
you invited me into this house, that my opinion is that when
you use the word ``taking a license'' or ``three strikes'' or
any of this stuff, dealing with first amendment, I think you're
on very dangerous ground, my humble opinion.
Mr. Gonzalez. And I would agree to a point, but I'm saying
if our only deterrent then will be the bottom line, it's going
to cost you money and it goes back to the Ford Pinto, that kind
of corporate mindset that everyone fears. You put a cost
analysis to it, you figure this is the most we're going to get
fined for this particular incident, but boy are we going to
make some money on this deal, and that's our fear.
It will never be a deterrent until it really affects you.
Mr. Karmazin. Putting it into perspective, sir, CBS, how
many times have we had to call CBS about anything indecent?
It's not about the fines. This is not something that is
widespread at CBS network. I mean this happened. Again, I
apologize. I'll say it one more time in case any one was
missing. I apologize. I am responsible. I take full
responsibility, whether it's CBS, MTV, you know, I'm
responsible. But CBS isn't doing this every day, that we've got
to figure out a way to stop--CBS doesn't want to do it. We
don't want to do it. If you believe we're doing things for the
bottom line, it's not good business.
Mr. Gonzalez. Then there's no reason to have this hearing.
There's probably no reason to have the Upton-Markey Bill, which
I would disagree, but thank you very much and I'm over my time.
Thank you, Mr. Chairman.
Mr. Upton. Thank you. We are now finished, Panel 1. Close
your books. Stop, close your books.
We appreciate your hours of testimony and answering
questions. We look forward to working with both of you as this
legislation begins to move and we are now adjourned for the
first panel and we'll reassemble with Panel 2 momentarily.
[Off the record.]
Mr. Upton. We are going to start with Panel 2. Thank you,
Commissioners, for waiting. I know that you watched at least
the good chunk of our first panel from the sideroom. We
appreciate all of you being available for today's important
hearing. We also appreciate being able to review your testimony
this last night.
As is the normal course, your testimony is entered into the
record, as it was submitted, without any objection. We'd like
to limit your remarks to no more than 5 minutes and Chairman
Powell, we'll begin with you, welcome.

STATEMENTS OF HON. MICHAEL K. POWELL, CHAIRMAN; HON. KEVIN J.
MARTIN, COMMISSIONER; HON. KATHLEEN Q. ABERNATHY, COMMISSIONER;
HON. JONATHAN S. ADELSTEIN, COMMISSIONER; AND HON. MICHAEL J.
COPPS, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION

Mr. Powell. Thank you, Mr. Chairman. It's a pleasure to be
here. This is our second panel, as well, having testified in
the Senate this morning on the same topic and we're really
pleased and privileged to be with you here today on this
important subject.
As we've just heard, the infamous Super Bowl halftime show
which was clearly offensive and outrageous, and I might add,
particularly degrading to women, is just the latest example in
a growing list of deplorable incidents over the nation's
airwaves. The increasing coarseness of television and radio has
resulted in a dramatic rise in public concern and outrage about
what is being broadcast into their homes. Over 200,000
concerned citizens and counting have filed complaints with the
Commission on the Super Bowl incident alone.
The recent Times CNN poll found 47 percent of Americans
said the incident marked a new low in bad taste. And as a
parent, I share their displeasure and fatigue of millions of
Americans about the erosion of common decency standards on
television.
As a member of this Federal agency, I can assure all
Americans that this Commission will continue to protect
children and respond to the public's concerns. Under our
authority, and consistent with the first amendment, we will
continue to vigorously enforce our indecency rules.
To punctuate the point, within hours of the Super Bowl
incident, we launched our investigation of whether there was a
violation of the law. This investigation will be thorough and
it will be swift. Additionally, a decision on a proposal to
overturn the recent decision in the Global Globe case is
imminent.
Protecting children and giving parents the tools to
restrict inappropriate programming from unexpectedly invading
our family rooms requires action from many people on all
fronts. But that effort begins first with the Federal
Communications Commission. This Commission, me and my
colleagues, are pushing what I think is the most aggressive
enforcement regime in decades by proposing nearly ten times the
level of indecency fines than the previous Commission, and
we're just getting started.
I want to note a few additional steps that we have taken,
and are beginning to take, to sharpen our enforcement blade.
First, we recognize that $27,500 in fines constitutes peanuts
to a multi-million dollar corporation. We actively seek ways to
increase penalties and creatively count them in measures to
increase those penalties for repetitive and lasting indecent
programming and taking steps to impose statutory maximums for
significant violations of the law.
In addition, as we've heard many people suggest and many of
them my colleagues, we should treat multiple indecent,
utterances within a single program as constituting multiple
indecency violations. In an opinion in April of last year, we
announced, and put broadcasters on notice, that in the future
we would count in that way.
We have also, in that same opinion, put broadcasters on
notice that egregious and continuing disregard of indecency
laws will potentially lead to revocation of licenses. We will
pursue more indecent programming on television and much more
aggressively. We will continue to work aggressively to answer
complaints in a timely manner. When we took control of the
Commission there was significant backlog of these and other
types of enforcement cases.
In 2002 alone, there were 14,000 complaints, only 30 of the
most serious remain pending and are quickly moving toward
disposal. We will continue to vigorously monitor industry
developments to see if they indeed meet the challenge to join
the ranks to protect our children.
Indeed, the Commission has already begun wielding the sword
in several important respects. We have proposed some of the
largest fines in our indecency enforcement history, including a
proposed forfeiture of nearly $350,000 in the case of a vile
broadcast of sexual content in St. Patrick's Cathedral in New
York, and proposed a fine of nearly $750,000 levied against
various Clear Channel stations for over 20 indecency
violations.
In addition, last month, we opened a new front in our
effort to protect children by fining a San Francisco television
station the maximum under the statute when it aired a program
in which a performer actually exposed himself in front of the
camera, making it one of the first fines of television in the
Commission's history.
Just this week, I have personally written and called on the
broadcast and cable industries to step up their own personal
responsibility and to commit themselves to protecting children.
Specifically, we challenge broadcasters to reinstate the code
of conduct that they once had and urge the broadcasting and
cable industries to work with the public and the government to
take other steps, like education and outreach campaigns, and
provide for a time delay for live entertainment performance
events. We hope to hear an answer from them soon.
To succeed fully in protecting our children from the
proliferation of inappropriate and excessive and violent
content, we need Congress in its critical role, as a leader to
help us as well. I urge Congress in the strongest possible
terms to help us by adopting legislation that will increase
statutory maximum of our forfeiture penalties at least tenfold.
And I commend Congressman Upton, other members of the committee
and Senator Brownback in the Senate who have championed this
issue by introducing legislation and we stand as a partner with
you on that legislation.
We need this increased authority to ensure that our
enforcement actions are meaningful deterrents and not merely
the cost of doing business. Additionally, this deterrent effect
can also spread to other types of coarse and inappropriate
programming not suitable for children, such as excessive
violence.
We've all been concerned, but the time has finally come for
us to work collectively, the Commission, Congress, the industry
and the public, to take whatever steps necessary to prevent
allowing the worse that television has to offer from reaching
the best of our assets, our children.
I commit to you that this Commission will continue to put
our resources into vigorously enforcing our rules. And I urge
Congress to assist in these efforts and the industry to do its
part for our nation's children.
Thank you, Mr. Chairman. I'm happy to be here and I look
forward to your questions.
[The prepared statement of Hon. Michael K. Powell follows:]

Prepared Statement of Hon. Michael K. Powell, Chairman, Federal
Communications Commission

Good morning, Mr. Chairman and distinguished Members of the
Committee. It is my pleasure to come before you today with my
colleagues on the Commission to discuss our collective efforts to
protect children from sexual, violent and profane content.
The now infamous display during the Super Bowl halftime show, which
represented a new low in prime time television, is just the latest
example in a growing list of deplorable incidents over the nation's
airwaves. This growing coarseness on television and radio has resulted
in a dramatic rise in public concern and outrage about what is being
broadcast into their homes. Over 200,000 concerned citizens and
counting have filed complaints with the Commission on the Super Bowl
incident alone. As a parent, I share the displeasure and fatigue of
millions of Americans about the erosion of common decency standards on
television.
As the federal agency responsible for punishing those who peddle
indecent broadcast programming, I can assure all Americans that my
colleagues and I will continue to protect children and respond to the
public's concerns. Under our authority, and consistent with the First
Amendment, we will continue to vigorously enforce our indecency rules.
To punctuate the point, within hours of the Super Bowl incident, we
launched our investigation into whether there was a violation of the
law. This investigation will be thorough and swift.
The Rise of Public Concern
Although the Super Bowl halftime show was a new low for broadcast
television (a recent poll found 47% of Americans said the incident
marked ``a new low in bad taste''), a quick flip around the dial during
what was once considered the family hour, reveals coarse content,
wholly inappropriate for a time when children can be expected to be
watching. There are reality and dating shows with heavy sexual themes
or scripted programs that feature gratuitous violence and increasing
profanity. Turn the channel and you are likely to see a new program
trying to push the envelope--all in an effort to try and grab ratings
and keep viewers.
Indeed, as new technologies have afforded the public with an
abundance of programming in recent years, audiences, especially in
television continue to fragment. A recent Commission study found that
the average television household had 82 channels available to it in
2001, up from merely 10 channels in 1980. Over the last two years, that
number has only increased. In fact, last year marked the second
consecutive year where more viewers were watching cable programming
during the prime time hours than they were broadcast programming. This
hyper-competition for audience share and ratings has tempted
broadcasters to capture share by resorting to ever more crass, sexual
or violent programming.
As evidenced by the rise in the number of complaints at the
Commission, Americans are taking unfavorable notice. In addition to the
over 200,000 complaints we received regarding the Super Bowl, 2003 saw
the most indecency complaints in the Commission's history. Over 240,000
complaints were filed at the Commission last year. As complaints have
risen dramatically, however, the actual number of programs that our
citizens complained about to the Commission actually declined from 2002
to 2003 (from 389 programs to 375 programs). Furthermore, indecency
complaints have historically been focused on broadcast radio
programming. Indeed, only in the last two years has the Commission
received more television than radio complaints. Television complaints
have largely focused on the broadcast medium (217), outpacing cable
(36) complaints over six to one.
At the Commission, we have increased our indecency enforcement
efforts to protect our children against the increase in coarse
programming and in response to the growing concerns expressed by the
public about the content being broadcast over our airwaves. Protecting
children and giving parents the tools to prevent inappropriate
programming from invading our family rooms requires action on all
fronts.
The Commission's Strong Enforcement Stance
The effort begins with the Commission. This Commission boasts the
most aggressive enforcement regime in decades, proposing nearly ten
times the level of indecency fines than the previous Commission. And,
we are taking additional steps to sharpen our enforcement blade:

Recognizing that $27,500 fines constitute peanuts to multi-million
dollar operations, we will actively seek ways to increase
penalties against those who engage in lasting and repetitive
indecent programming, including taking steps to impose the
statutory maximum for serious violations of the law (up from
$7,000 fines of previous Commissions);
We will treat multiple indecent utterances with a single program as
constituting multiple indecency violations. I commend
Commissioner Martin for his leadership on this issue;
We will begin license revocation proceedings for egregious and
continuing disregard of decency laws. Commissioner Copps'
efforts on this issue are particularly noteworthy;
We will pursue indecent programming on television more aggressively--
including our proposal to overturn the Enforcement Bureau's
decision in the Golden Globes case--a decision by the
Commission in that case is imminent;
We will continue to work aggressively to answer complaints in a
timely manner (of the 14,000 complaints filed in 2002 only 30
remain pending) and bring more cases up to the full Commission
for review; and
We will continue to vigorously monitor industry developments to see
if they, indeed, meet the challenge of their responsibilities
to protect our children.
Indeed, the Commission has already begun wielding our sword in
several important respects. We have proposed some of the largest fines
in our indecency enforcement history, including a proposed forfeiture
of over $300,000 in the case of a broadcast of sexual conduct in St.
Patrick's Cathedral in New York and a proposed fine of over $700,000
levied against various Clear Channel stations for over 20 indecency
violations.
In addition, last month, we opened a new front in our effort to
protect children by fining a San Francisco television station the
statutory maximum of $27,500 when it aired a program in which a
performer exposed himself in front of the camera--marking one of the
first ever fines against a television station in Commission history.
Just this week, I have personally called on the broadcast and cable
industry step to the forefront and take affirmative steps to commit
themselves to protecting children. Specifically, I have challenged
broadcasters to re-institute a voluntary Code of Conduct and urged the
broadcast and cable industries to work with the public to take other
steps, such as educational and outreach campaigns and providing for a
delay for live entertainment performance events.
As the Commission continues to strengthen its enforcement, it needs
the help of both Congress and the industry in the fight for our
children. I urge, in the strongest terms, Congress to adopt legislation
that will increase the statutory maximum of our forfeiture penalties at
least ten-fold. I commend Congressman Upton and Senator Brownback and
those Members supporting their respective bills for their leadership on
this issue. We need this increased authority to ensure that our
enforcement actions are meaningful deterrents and not merely a cost of
doing business. Additionally, this deterrent effect can also spread to
other types of coarse or inappropriate programming not suitable for our
children, such as excessive violence.
A Call to Action
The Commission, Congress and the public cannot stand alone in this
fight to protect our children. Indeed, action must be taken by the
entire television and radio industry to heed the public's outcry and
take affirmative steps to curb the race to the bottom. This industry
simply must help clean up its own room.
I have written the broadcast industry, the major television
networks and the cable industry and challenged them to take affirmative
steps consistent with antitrust law and within the limits of the First
Amendment, to curb indecent, inappropriate and violent programming.
The industry has the ability to join our efforts to protect
children, and it must. Specifically, I have challenged the National
Association of Broadcasters and the network's owned and operated
stations to work with their broadcast members and the public to
reinstate a voluntary code of conduct. Such a code is necessary to
establish effective guidance and best practices to local broadcasters
so that they can best address the needs and concerns of parents,
children and local communities.
I believe these steps would also give the public a meaningful
standard by which to measure performance of the industry over time and
demonstrate broadcasters' unwavering commitment to serving the needs of
local communities and to help stem the surging tide of offensive
programming.
In addition, I have asked that the networks themselves continue to
take affirmative steps to better protect the public. I am heartened by
recent efforts to reinstitute a delay into live broadcasts of award
shows to prevent unwarranted profanity from infiltrating our airwaves
and urge the industry to make this routine practice. Their actions,
however, can and must not stop there.
Finally, like the broadcasters, I have challenged the cable
industry to engage and educate the public about the best family-
friendly programming that cable has to offer and how best to use the
technological tools available to prevent those channels and programs
that are inappropriate for children from reaching their eyes and ears.
I have asked all interested parties to inform me of their progress on
this front within the next thirty days. Commissioner Abernathy's
leadership in developing the FCC's Parent's Page is an important
beginning in these efforts.
The rise of cable and satellite programming and the development of
new broadcast networks have brought our citizens the very best
television and radio programming that it has had to offer in its
seventy-five year history. We have also, however, seen some of the
worst. The time has come for us to work collectively--the Commission,
the Congress, the industry and the public to keep the seedy worst of
television from reaching our children and to help parents make the
choices that are best for them. I commit to you that this Commission
will continue to put our resources into vigorously enforcing our
indecency rules. I urge Congress to assist us in these efforts and look
for the industry to step up and do its part to protect our nation's
children. I look forward to working together with my Commission
colleagues to advance the public interest on these important issues.
Thank you, I will be happy to answer any of your questions.

Mr. Upton. Thank you very much for your testimony.
Mr. Martin.

STATEMENT OF HON. KEVIN J. MARTIN

Mr. Martin. Thank you, Mr. Chairman and distinguished
members of the committee, for the invitation to be with you
this afternoon. Most consumers today can choose among hundreds
of television channels, including some of the best programming
ever produced. But television today also contains some of the
coarsest and most violent programming ever aired, and
unfortunately more and more of it.
Indeed, the networks appear to be increasing the amount of
programs designed to push the envelope and the bounds of
decency. For instance, a recent study found that the use of
profanity during the Family Hour has increased 95 percent from
1998 to 2002.
At the Commission, we used to receive indecency complaints
by the hundreds. Now they come in by the hundreds of thousands.
Clearly, consumers and particularly parents, are increasingly
frustrated and at times outraged. Parents who want to watch
television together with their children too often feel that
they have too little to watch. As the broadcast networks become
edgier to compete with cable, prime time on broadcast
television has become less family friendly.
Cable and satellite television offers some great family
oriented choices, but parents cannot subscribe to those
channels alone. Rather, they are forced to buy the channels
they do not want their families to view in order to obtain the
family friendly channels they want. They must buy the ``Touch
the Hooker'' episode, the Spike TV's Joe Schmo's Show in order
to get the Discovery Channel. We need to provide parents with
better tools to help them navigate the entertainment waters.
A year ago I wrote a law review article about the need to
provide parents with a better guide to television programs. I
ask that article be made part of the written record.
Mr. Upton. Without objection.
Mr. Martin. I'm even more concerned about this issue today.
I support Chairman Powell and his recent efforts with respect
to the Super Bowl halftime show. I also agree with Chairman
Powell that the enforcement bureau is wrong when it finds
profanity is acceptable, merely because they are used as
adjectives. I also agree with him that our nation's children,
parents and citizens deserve better. And we at the Commission
can be more responsive to these complaints and frustrations. We
need to provide parents with more tools to enable them to watch
television as a family and to protect their children from
violent and indecent programming.
We need to do more. And I believe there are four steps we
can take to help address this process. We should first
aggressively enforce the law. Congress has charged the
Commission with protecting families from obscene, indecent and
profane material and our rules need to serve as a significant
deterrent to media companies considering airing such
programming. To achieve that goal, we need serious fines,
coupled with aggressive enforcement. I strongly support the
pending legislation to increase fines for airing inappropriate
material. Indeed, in almost every indecency case that has come
before us, I have found the fine inadequate and urge the
Commission to do even more.
In fact, I have argued that there is some action we can
take now even without our existing authority to get tougher on
broadcasters who violate the law. Last March, I began urging
the Commission to use our full statutory authority to fine
broadcasters per utterance rather than per show. Using this
approach, I would have fined the Detroit radio show $247,000
instead of $27,000.
In addition, the FCC should use its statutory authority to
address the broadcast of profanity. The indecency statute we
enforce prohibits obscene, indecent and profane language, but
profanity on television and radio appears to be widespread and
yet I've not found even a single instance in which the
Commission has concluded a broadcast was profane.
Finally, we should respond to the many complaints that are
pending and make quick responses a matter of course.
Second, we should affirm the local broadcaster's ability to
reject inappropriate programming. Several years ago, local
broadcasters complained that the networks were restricting
their ability to reject inappropriate programming. This ability
is critical to those local broadcasters to keep coarser network
programming off the air in their communities. In this respect,
the affiliates provide a natural check on the control of
network programming in the marketplace, rather than through
direct government oversight of network content. We should
clarify immediately that local broadcasters have this
opportunity and this obligation when they serve the local
communities.
Third, we should urge broadcasters to reinstate the Family
Hour. Over a year ago, I called on broadcasters to reestablish
the Family Hour, devoting the first hour of prime time to
family friendly programs that parents and children could enjoy
together. Such a Family Hour used to be standard, but when the
broadcasters' old code of conduct was abandoned, the Family
Hour went with it. Broadcasters should bring back the Family
Hour.
While I will continue to call for the industry action, the
Commission can take some action on its own. A year ago, PAX
Communications urged the Commission to issue a notice on a
public interest code of conduct which included the concept of a
Family Hour. We should put this request out for comment and
publicly endorse the importance of the Family Hour.
And finally, we should address cable and satellite
programming. Broadcasts cannot be the end of the story.
Children today do not distinguish between channels 4 and 40. In
a world in which more than 85 percent of homes receive their
television programming from cable and satellite providers, we
need a more comprehensive solution. Over a year ago, I urged
the cable and satellite providers to take action and I continue
to believe something needs to be done to address this issue.
As I suggested, cable and satellite operators could
voluntarily offer an exclusively family friendly programming
tier as an alternative to the expanded basic tier on cable.
Parents could get Nickelodeon and Discovery without having to
buy MTV or other adult-oriented fare. A choice of family
friendly package would provide valuable tools to parents
wanting to watch television with their families. And it would
help them protect their children from violent and indecent
programming. Other subscribers could continue to have the same
options they have today. Alternatively, cable and DVS operators
could permit parents to request not to receive certain channels
and reduce the package price accordingly.
Finally, I'm sympathetic to the many people who asked why
are indecency regulations apply only to broadcasts? Indeed,
today programming at broadcast networks reject because of
concerns about content may end up on competing basic cable
networks and radio personalities that we have fined for
indecency violations have moved to satellite radio.
Increasingly, I hear a call for the same rules to apply to
everyone for a level playing field and if cable and satellite
operators continue to refuse to offer parents more tools, then
basic indecency and profanity restrictions may be a viable
alternative that should be considered.
In conclusion, I share the concerns about the increase in
coarse programming on television and radio today and I believe
something does need to be done. I hope the proposal for action
that I have made today can help and I welcome your guidance.
Thank you.
[The prepared statement of Hon. Kevin J. Martin follows:]

Prepared Statement of Hon. Kevin J. Martin, Commissioner, Federal
Communications Commission

Thank you for this invitation to be here with you this morning. I
look forward to listening to your comments and to answering any
questions you may have.
Most consumers today can choose among hundreds of television
channels, including some of the best programming ever produced. But
television today also contains some of the coarsest and most violent
programming ever aired--and, unfortunately, more and more of it.
Indeed, the networks appear to be increasing the amount of programs
designed to ``push the envelope''--and the bounds of decency. For
instance, a recent study found that the use of profanity during the
``Family Hour'' increased 95% from 1998 to 2002.¹ Another
study found that two-thirds of television shows in the 2001-2002 season
had sexual content.² This trend becomes even more disturbing
in light of the studies that have documented the harm that such
programming, particularly violent television, can have on young people.
At the FCC, we used to receive indecency complaints by the hundreds;
now they come in by the hundreds of thousands. Clearly, consumers--and
particularly parents--are increasingly frustrated and, at times,
outraged.
---------------------------------------------------------------------------
\1\ See Nell Minow, ``Standards for TV language rapidly going down
the tube,'' Chicago Tribune, Oct. 7, 2003 at C2 (discussing study by
the Parents Television Council)..
\2\ Kaiser Family Foundation, ``Sex On Television 3: Content And
Context, Biennial Report Of The Kaiser Family Foundation'' at 14 (Feb.
2003).
---------------------------------------------------------------------------
Parents who want to watch television together with their children
too often feel that, despite the large number of viewing choices, they
have too little to watch. As the broadcast networks become ``edgier''
to compete with cable, prime time on broadcast television has become
less family friendly. Cable and satellite television offer some great
family-oriented choices, but parents cannot subscribe to those channels
alone. Rather, they are forced to buy the channels they do not want
their families to view in order to obtain the family-friendly channels
they desire (e.g., they must buy the ``Touch the Hooker'' episode of
Spike TV's Joe Schmo show in order to get the Discovery Channel).
We need to provide parents with better tools to help them navigate
the entertainment waters. A year ago, I gave a speech and wrote an
article about the need to provide parents such tools, and I have
attached that article for your consideration. I am even more concerned
about this issue today.
I support Chairman Powell and his recent efforts with respect to
the Super Bowl half time show. I also agree with Chairman Powell that
the Enforcement Bureau is wrong when it finds profanities acceptable
merely because they are used as adjectives. I also agree with him that
our nation's children, parents and citizens deserve better.
We at the FCC can be more responsive to these complaints and
frustrations. We need to provide parents with more tools to enable them
to watch television as a family and to protect their children from
violent and indecent programming. We need to do more. I believe there
are four steps we should take now to begin to address this problem.
1. We Should Aggressively Enforce the Law. Congress has charged the
Commission with protecting families from obscene, indecent, and profane
material. Our rules need to serve as a significant deterrent to media
companies considering the airing of such programming. To achieve that
goal, we need serious fines coupled with aggressive enforcement.
I strongly support the pending legislation to increase fines for
airing inappropriate material, and I believe such authority is critical
to making the decision to air indecent or profane language a bad
business decision. Indeed, in almost every indecency case that has come
before us, I have found the fine inadequate and urged the Commission to
do more. I have argued that there is action we can take now--within our
existing authority--to get tougher on broadcasters who violate the law.
Last March, I began urging the Commission to use our full statutory
authority to fine broadcasters ``per utterance,'' rather than per show.
Using such an approach, the fines I proposed were several times higher
than the fines the majority imposed. For instance, in a Notice of
Apparent Liability from last April dealing with a Detroit radio show,
the fine would have been $247,500 instead of only $27,500; in the most
recent Notice of Apparent Liability against Clear Channel, the fine
would have been well over a million dollars.
In addition, the FCC should use its statutory authority to address
the broadcast of profanity. The indecency statute we enforce prohibits
``obscene, indecent and profane language,'' but the Commission appears
to have read the last word out of the statute. I have not yet found
even a single instance in which the Commission concluded a broadcast
was profane. Yet, profanity on television and radio appears to be
widespread.
Finally, we should respond to the thousands of complaints that are
pending--and make quick responses a matter of course. Last year, the
Commission and the Enforcement Bureau combined issued only three
notices of liability, and only one forfeiture order. Yet we received
tens of thousands of complaints. It doesn't matter how tough our fining
authority is if we don't actually enforce the rules. Consumers should
not have to wait years to have their complaints heard. And broadcasters
should expect that if they violate our rules, we will respond swiftly.
2. We Should Affirm Local Broadcasters' Ability to Reject
Inappropriate Programming. Several years ago, local broadcasters,
through the Network Affiliated Stations Alliance, complained that the
networks were restricting their ability to reject inappropriate
programming. They asked us to clarify our rules and reaffirm this right
and responsibility. Our rules should protect a broadcaster's ability to
refuse to air programming that is unsuitable for its local community.
This ability is critical to those local broadcasters that want to keep
coarser network programming off the air in their communities. Last
week, for example, there were news reports of ABC, CBS, and NBC
affiliates pressuring their networks to use tape delays in upcoming
Awards shows and not to air certain programming so that indecent
material and profanity could be avoided. In this respect, the
affiliates provide a natural check on the control of network
programming in the marketplace, rather than through direct government
oversight of network content. We should grant the broadcasters'
request, clarifying immediately that local broadcasters have this
opportunity--and obligation--when serving their local communities.
3. We Should Urge Broadcasters to Reinstate the Family Hour. Over a
year ago, I called on broadcasters to reestablish the Family Hour,
devoting the first hour of prime time to family-friendly programs that
parents and children could enjoy together. Such a Family Hour used to
be standard and was even incorporated into the National Association of
Broadcasters' Code of Conduct. When the Code was abandoned due to
unrelated antitrust concerns, the Family Hour went with it.
Broadcasters should bring back the Family Hour. They should give
families at least one hour, five days a week, when they can turn to
broadcast television with comfort, confidence, and enthusiasm.
While I will continue to call for this industry action, the
Commission can take action on its own. A year ago, Paxson
Communications urged the Commission to issue a notice on a voluntary
``Public Interest Code of Conduct,'' which included the concept of a
Family Hour. Broadcasters could voluntarily opt into this Code and the
accompanying public commitments. The Code also could include a
commitment to provide a certain amount of family programming and to
limit coarse programming to certain hours. We should put this request
out for comment and publicly endorse the importance of the Family Hour.
Such a voluntary code could serve as an easy indicator for parents
searching for a way to determine which channels are appropriate for
family viewing.
4. We Should Address Cable and Satellite Programming. I believe the
previous steps could help address the amount of indecent and otherwise
coarse programming on broadcast television, but broadcast cannot be the
end of the story. Today, children do not distinguish between channels 4
and 40, and cable and broadcast programming compete aggressively for
the same viewers and advertisements. In a world in which more than 85%
of homes receive their television programming from cable and satellite
providers, we need a comprehensive solution.
Over a year ago, I urged cable and satellite operators to take
action. Thus far, there has been no response. I continue to believe
something needs to be done to address this issue.
As I suggested, cable and satellite operators could offer an
exclusively family-friendly programming package as an alternative to
the ``expanded basic'' tier on cable or the initial tier on DBS. This
alternative would enable parents to enjoy the increased options and
high-quality programming available through cable and satellite without
having to purchase programming unsuitable for children. Parents could
get Nickelodeon and Discovery without having to buy MTV and other
adult-oriented fare. A choice of a family friendly package would
provide valuable tools to parents wanting to watch television with
their families, and would help them protect their children from violent
and indecent programming. Other subscribers, meanwhile, could continue
to have the same options they have today.
Alternatively, cable and DBS operators could offer programming in a
more a la carte manner. For example, they could permit parents to
request not to receive certain channels and reduce the package price
accordingly. Under this second option as well, parents would be able to
receive (and pay for) only that programming that they are comfortable
bringing into their homes.
Finally, I am sympathetic to the many people asking why our
indecency regulations apply only to broadcast. Indeed, today
programming that broadcast networks reject because of concerns about
content may end up on competing basic cable networks, and radio
personalities that we have fined for indecency violations just move to
satellite radio. Increasingly, I hear a call for the same rules to
apply to everyone--for a level playing field. If cable and satellite
operators continue to refuse to offer parents more tools such as
family-friendly programming packages, basic indecency and profanity
restrictions may be a viable alternative that also should be
considered.
In conclusion, I share your concern about the increase in coarse
programming on television and radio today. Something needs to be done.
I hope that the proposals for action that I have made today can help. I
also welcome your guidance.
Thank you, and I look forward to answering any questions you may
have.

______

Family-Friendly Programming: Providing More Tools for Parents

KEVIN J. MARTIN ¹
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\1\ Commissioner, Federal Communications Commission. Commissioner
Martin was nominated to be a member of the FCC by President George W.
Bush on April 30, 2001, and was sworn in on July 3, 2001. Mr. Martin
serves a five-year term expiring in June 2006. The Author thanks
Catherine Bohigian, his legal advisor on media issues, for her
assistance on the preparation of this Essay.
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Since then-Chairman of the Federal Communications Commission Newton
Minow dubbed television a ``vast wasteland'' in 1961, the medium has
changed dramatically. Consumers today have so many programs from which
to choose that the complaint is rarely a lack of high-quality
television shows. Rather, the concern for many consumers is how to
navigate these teeming waters. This course-plotting can be a particular
challenge for parents who desire to watch television together with
their children. I therefore encourage the television industry to
provide these parents more navigational tools.
Consumers today have exponentially more viewing options, and they
can choose from a remarkable array of programs, both on broadcast and
on subscription television. They can view these programs using digital
technology that produces a crisp, clear color picture far surpassing
the fuzzy black-and-white world of 1961. Importantly, the burgeoning
competition among television networks has resulted in some of the best
programming ever produced. It also has enabled such diversity that
niche channels, which devote 100% of their time to science, art, or
history, can be successful.
Television today, however, also presents some of the coarsest
programming ever aired. Parents who want to watch television together
with their children too often feel that, despite the increased number
of viewing choices, they have too little to watch. Prime time on
broadcast television has become less family friendly. Cable and Direct
Broadcast Satellite (``DBS'' or ``satellite'') do offer new family-
oriented choices, but parents cannot subscribe to those channels alone.
Rather, they must take the channels they do not want their families to
view along with the Disney Channel and Discovery Channel.
I believe it is time for our culture to rethink our approach to
family-friendly programming. Parents should have the tools to help
their children take advantage of the good that television can offer.
Certainly, broadcasters, cable, and satellite operators enjoy
significant First Amendment rights to choose the content they deliver
to our homes. But these companies can take it upon themselves to
improve the tools they provide parents, so that parents are able to
enjoy the diversity television today has to offer, yet still protect
their children from content they believe inappropriate for family
viewing.
I therefore propose two challenges to the industry: I urge
broadcasters to create a ``Family Viewing Hour'' during the first hour
of prime time. I also urge cable and satellite operators to offer a
family-friendly programming package. Together, these steps would
empower parents and enhance the value that television can offer.

MARKETPLACE DEVELOPMENTS

When Chairman Minow observed a ``vast wasteland,'' consumers
generally had three choices for television programming--ABC, NBC, and
CBS--and thus these three national broadcast networks dominated the
television marketplace.² Even with the few independent
stations available in some of the larger markets, television audiences
were presented with a limited amount of viewing options. Cable
television, formerly known as Community Antenna Television (or CATV),
was still in its infancy; by 1963, about 1 million homes subscribed to
cable,³ but the service was largely used to extend the reach
of broadcast signals, not to offer different programming.
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\2\ C. Edwin Baker, Media Concentration: Giving Up on Democracy, 54
Fla. L. Rev. 839, 867 (2002).
\3\ Cable History, The Cable Center, http://www.cablecenter.org/
history/timeline/decade.cfm?start=1960 (last visited Feb. 27, 2003).
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Over the last four decades, the television landscape has changed
dramatically. Broadcast television options have grown considerably.
Just since 1980, the number of full-power television stations has
increased almost 70%.⁴ With the introduction of the Fox
Television network in 1986, the collection of dominant networks--once
known as the ``Big Three''--became referred to as the ``Big Four.'' The
path then was paved for the entrance of additional new networks. In
January 1995, the fifth and sixth networks were born: Turner
Broadcasting System launched the WB Network, and Paramount Television
launched the United Paramount Network (``UPN''). These networks
currently reach 88% and 97% of U.S. television homes,
respectively.⁵ More recently, Paxson Communications launched
PAX TV in 1998, reaching 85% of the country.⁶
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\4\ 2002 Biennial Reg. Review Before the FCC--Review of the
Comm'n's Brdcst. Ownership Rules and Other Rules Adopted Pursuant to
Section 202 of the Telecomms. Act of 1996, Notice of Proposed
Rulemaking, 17 F.C.C.R. 18503, para. 53 (2002) [hereinafter 2002
Review].
\5\ See WB Web site, at http:www2.warnerbros.com/web/all/link/
partner.jsp?url=http://www.thewb.com (last visited Feb. 27, 2003);
Viacom Web site, at http://www.viacom.com/thefacts.tin (last visited
Feb. 27, 2003).
\6\ See Pax Communications Web site, at http://www.pax.tv/about/
(visited Feb. 27, 2003).
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The current transition to digital television now offers viewers not
only more choices, but new opportunities. Broadcasters are beginning to
take advantage of the many benefits digital will bring to consumers--a
markedly sharper picture resolution and better sound; an astounding
choice of video programming, including niche programs and movies on
demand; CD-quality music channels of all genres; interactivity;
sophisticated program guides; and new, innovative services.
The most remarkable development since the 1960s, however, may be
the explosion in the number of television networks, made possible by
the development of multi-channel video programming distributors
(``MVPDs''), including cable and satellite.⁷ Today consumers
can choose among more than 230 national cable networks and more than 50
regional networks--an almost unimaginable sum to a television viewer of
the 1960s.⁸
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\7\ In addition to cable and satellite, MVPD technologies include
home satellite dishes, wireless cable systems, and satellite master
antenna television systems.
\8\ 2002 Review, supra note 3, para. 25.
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In addition, the number of households accessing these multi-channel
services has increased significantly since the 1960s. In 1976, there
were still only 17% of U.S. households--fewer than 10 million homes--
served by cable.⁹ By 2002, cable reached 96% of television
viewing homes, with 73 million subscribers.¹⁰ DBS is
available nationwide and now has nearly 19.8 million
subscribers.¹¹ Today, 85.3% of households subscribe to a
MVPD.¹²
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\9\ Florence Setzer & Jonathon Levy, Broadcast Television in a
Multichannel Marketplace, OPP Working Paper No. 26, 6 F.C.C.R. 3996,
4008-09 (providing percentage of homes served by cable); HBO, Inc. v.
FCC, 567 F.2d 9, 24 (D.C. Cir.), cert. denied, 434 U.S. 829 (1977)
(providing number of households served by cable).
\10\ Cable History, The Cable Center, at http://
www.cablecenter.org/history/index.cfm (last visited Feb. 27, 2003).
\11\ Satellite TV Subscriber Counts, Sky Report, at http://
www.skyreport.com/dth--counts.htm (last visited Feb. 27, 2003).
\12\ Annual Assessment of the Status of Competition in the Mkt. for
the Delivery of Video Programming, Ninth Annual Report, 28 Comm. Reg.
(P & F) 159, para. 5 (2002) [hereinafter Ninth Video Competition
Report].
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Long gone are the days when broadcasters commanded 100% of the
viewing audience. From July 2001 to June 2002, broadcast television
averaged only a 53.0 audience share, while cable networks' share had
increased to 58.3.¹³ Other sources indicate the shift may be
even more dramatic, with broadcast drawing only 37%, and cable
programming drawing 53% of TV viewers.¹⁴ Nevertheless, the
role of television broadcasters remains a significant one. Broadcast
television has lost its monopoly on the viewing audience. Meanwhile,
the broadcast networks, with only a handful of channels, continue to
rival the cable networks for viewers, particularly during prime time,
the period during which the American television audience is at its
highest.¹⁵
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\13\ Id. para. 24 (citing Nielsen Media Research, Total Day 24
Hours 6 am-6 am: Total US Ratings by Viewing Source July 2000-June
2002, Oct. 2002). ``A share is the percent of all households using
television during the time period that are viewing the specified
station(s) or network(s). The sum of reported audience shares exceeds
100% due to simultaneous multiple set viewing.'' Id. para. 24 n.39.
\14\ Charlie McCollum, Network Programs Play it Safe: Familiar
Formulas--Family Comedies, Cop Dramas--Dominate; Some Shows Are
Outright Remakes, San Jose Mercury News, Sept. 15, 2002. The varying
numbers may be due to the rise and fall of broadcast audience during
different parts of the television season.
\15\ Between July 2001 and June 2002, broadcast television averaged
a 59.4 audience share during prime time; cable averaged a 56.5 share.
Ninth Video Competition Report, supra note 11, para. 24 (citing Nielsen
Media Research, Primetime Monday-Saturday 8-11 PM Sunday 7-11 PM: Total
US Ratings by Viewing Source July 2000-June 2002, Oct. 2002).
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In summary, the advances in television and the development of
competing providers of video programming have resulted in unprecedented
choice for consumers, particularly the vast majority that subscribe to
a MVPD. Moreover, some of the best television ever produced is aired
today. Yet, as discussed below, the picture is not entirely rosy. For
families, the situation can be somewhat of a Catch-22. If you subscribe
to a MVPD, you can get a significant selection of high-quality, family-
friendly programming, but you also are forced to buy some of the most
family-unfriendly programming produced for television. If you take the
route of allowing only broadcast television into your home, you avoid
some of the programming that may concern you the most, but your
primetime viewing options as a family may be few and shrinking, and you
will have missed out on the great programming that cable and satellite
have to offer. As I explain below, broadcasters and MVPD operators can
help parents out of this situation, and I urge them to do so.

BROADCAST CHALLENGE: FAMILY VIEWING HOUR

To the dismay of many parents, the increased competition for
viewership has led broadcasters to increase markedly the amount of
coarse programming and decrease the family-friendly programming they
provide their viewers. This shift is particularly notable during
primetime viewing hours, when families are most likely to gather around
the television together.
Studies have documented this unfortunate trend. A report on the
1999-2000 television season found that two out of every three shows
included sexual content, an increase from about half of all shows
during the 1997-1998 season.¹⁶ The subsequent report for the
2001-2002 season revealed that the amount of sexual content on
television remained high, with two-thirds of all shows continuing to
include some sexual content.¹⁷ Another organization reports
that from the fall 1989 season to the fall 1999 season, the incidence
of sexual material, coarse language, and violence during prime time
increased three-fold.¹⁸
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\16\ Kaiser Family Found., Sex on TV(2): A Biennial Report to the
Kaiser Family Foundation 16-18 (Feb. 2001), available at http://
www.kff.org.
\17\ Kaiser Family Found., Sex on Television 3: Content and
Context, Biennial Report of the Kaiser Family Foundation 14 (Feb.
2003).
\18\ Press Release, Parents Television Council, What a Difference a
Decade Makes: A Comparison of Prime Time Sex, Language, and Violence in
1989 and ``99 (Mar. 30, 2000), available at http://www.parentstv.org/
PTC/publications/release/2000/pr033000.asp.
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As a result, parents wanting to watch broadcast television with
their children at the end of the day--when most viewers do still turn
to broadcast television--may feel like they have fewer options, despite
all the growth over the last decades. I do not dispute that parents
could respond by turning the television off, but there should be a
better answer. Accordingly, I challenge broadcasters to devote the
first hour of prime time to family-friendly programs--programs that
parents and children can enjoy together.¹⁹
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\19\ The Family Friendly Programming Forum, a group of more than 40
major national advertisers, defines family-friendly programs as those
which are ``relevant and interesting to a broad audience; contain no
elements that the average viewer would find offensive or that the
average parent is embarrassed to see with children in the room, and
ideally embody an uplifting message.'' Family Friendly Programming
Forum Web site, Questions/Answers, at http://www.ana.net/family/
default.htm (last visited Feb. 27, 2003).
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The notion of a family-oriented viewing hour is not a new one. In
fact, lawmakers, regulators, and members of the television industry
recognized such a need almost thirty years ago. In 1974, the Federal
Communications Commission (``FCC'') received nearly 25,000 complaints
about violent or sexually oriented programming.²⁰ That same
year, responding in part to a finding by the Surgeon General about the
adverse effects of televised violence on certain members of
society,²¹ Congress instructed the FCC to outline actions it
had taken or planned to take to protect children from excessive
violence and obscenity.²² The FCC staff recommended several
options, including issuing notices of inquiry, notices of proposed
rulemaking, and policy statements.²³ Then-Chairman Wiley,
concerned that such formal measures by the FCC could pose significant
First Amendment concerns, opted instead to encourage industry
representatives to take voluntary actions to regulate the amount of
violent or sexually oriented content that aired during those hours when
children normally watch television.²⁴
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\20\ Report on the Brdcst. of Violent, Indecent, and Obscene
Material, Report, 51 F.C.C.2d 418, 419, 32 Rad. Reg.2d (P & F) 1367
(1975) [hereinafter Report]; Writers Guild of Am. v. ABC, 609 F.2d 355,
359 (9th Cir. 1979).
\21\ See generally Surgeon General's Report by the Scientific
Advisory Committee on Television and Social Behavior: Hearing Before
the Senate Comm. on Commerce, Subcomm. on Communications, 92d Cong., 2d
Sess. (1972).
\22\ H.R. Rep. No. 93-1139, 93d Cong., 2d Sess. 15 (1974); S. Rep.
No. 93-1056, at 19 (1974) (these two reports were issued during
congressional debates on the appropriations legislation for Fiscal Year
1975, Pub. L. No. 93-414).
\23\ Writers Guild of Am., 609 F.2d at 359.
\24\ Id.
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In April 1975, the National Association of Broadcasters (``NAB'')
responded to the growing concern about television content by announcing
a family viewing policy, which it incorporated into the NAB Code of
Conduct for Television.²⁵ The family viewing amendment
provided in relevant part that ``entertainment programming
inappropriate for viewing by a general family audience should not be
broadcast during the first hour of network entertainment programming in
prime time and in the immediately preceding hour.'' ²⁶
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\25\ The Writers Guild of America brought an action against the
major networks and the FCC challenging the validity of the family
viewing policy. Writers Guild of Am. v. FCC, 423 F. Supp. 1064 (C.D.
Cal. 1976). Although the District Court found that the FCC (through the
statements of the Chairman) had violated the First Amendment and the
Administrative Procedure Act (``APA''), the Ninth Circuit Court vacated
this judgment on jurisdictional grounds and remanded the case back to
the FCC. Writers Guild of Am., 609 F.2d at 356. Although the appellate
court did not rule on the First Amendment issue, language from the
holding suggests that even an FCC-mandated family viewing hour might be
constitutionally permissible:
It simply is not true that the First Amendment bars all limitations
of the power of the individual licensee to determine what he will
transmit to the listening and viewing public. At issue in this case is
whether a family viewing hour imposed by the FCC would contravene the
First Amendment. This is a considerably more narrow and precise issue
than is the district court's bedrock principle and with respect to
which the FCC's expertise and procedures could provide enormous
assistance to the judiciary.
Id. at 364. On remand, the FCC concluded that the NAB freely and
voluntarily had chosen to adopt the family viewing policy as part of
its code, and therefore the informal FCC action did not violate the
First Amendment or the APA. Primary Jurisdiction Referral of Claims
Against Gov't Defendant Arising from the Inclusion in the NAB TV Code
of the ``Family Viewing Policy,'' Report, 95 F.C.C.2d 700 (1983). This
ruling was not challenged.
\26\ Writers Guild of Am., 609 F.2d at 358 n.2. The amendment
continued:
In the occasional case when an entertainment program in this time
period is deemed to be inappropriate for such an audience, advisories
should be used to alert viewers. Advisories should also be used when
programs in later prime time periods contain material that might be
disturbing to significant segments of the audience.
These advisories should be presented in audio and video form at the
beginning of the program and when deemed appropriate at a later point
in the program. Advisories should also be used responsibly in
promotional material in advance of the program. When using an advisory,
the broadcaster should attempt to notify publishers of television
program listings.
Special care should be taken with respect to the content and
treatment of audience advisories so that they do not disserve their
intended purpose by containing material that is promotional,
sensational or exploitative. Promotional announcements for programs
that include advisories should be scheduled on a basis consistent with
the purpose of the advisory.
Writers Guild of Am., 609 F.2d at 358 n.2.
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In 1983, the Department of Justice brought suit against the NAB,
challenging the NAB Code on antitrust grounds.²⁷ Although
the suit involved only the code's restrictions on television
commercials,²⁸ the NAB Board of Directors ultimately
cancelled the Code of Conduct in its entirety, eliminating all
regulations--even those not addressed by the suit, such as those
dealing with violent, indecent, and sexually explicit content. The
requirements for a family viewing hour were thereby rescinded.
---------------------------------------------------------------------------
\27\ United States v. NAB, 536 F. Supp. 149 (D.D.C. 1982).
\28\ Id.
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Recently, there have been efforts to reinstitute family viewing
policies. In 2001, twenty-eight members of Congress signed a letter to
the presidents of the major television broadcast networks asking them
to voluntarily restore the Family Hour.²⁹ That same year,
Senator Brownback introduced a bill whose express purpose was to
``permit the entertainment industry . . . to develop a set of voluntary
programming guidelines similar to those contained in the Television
Code of the National Association of Broadcasters.'' ³⁰
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\29\ Press Release, Office of Representative Chris Smith, Smith
Rallies Congressional Backing for Family Friendly TV Programming (Oct.
5, 2001), available at http://www.house.gov/chrissmith/press2001/
pr1005001tvfamilyhour.html.
\30\ Children's Protection Act of 2001, S. 124, 107th Cong. 3(a)
(2001).
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Advertisers also are taking steps to encourage the development of
family-friendly programming. A group of more than forty major national
advertisers, working through the Association of National Advertisers,
have formed the Family Friendly Programming Forum to address two
concerns: ``the dwindling availability of family friendly television
programs during prime viewing hours''; and ``the TV imagery, role
models, themes and language to which our young people are exposed.''
³¹ The Forum has begun a concerted effort to encourage the
entertainment community to provide ``more movies, series, documentaries
and informational programs, aired between 8:00 and 10:00 p.m., that are
relevant and interesting to a broad audience and that parents would
enjoy viewing together with a child.'' ³² This effort
includes a script development fund--in which CBS, ABC, NBC, and WB
participate--to finance new family-friendly television scripts, a
scholarship program for students who work on family-friendly projects,
and the Annual Family Television Awards to recognize outstanding family
television. I applaud the work the Forum is doing, and I congratulate
the winners of the most recent awards, as well as the networks that
aired the shows: CBS (three awards), WB (two awards), ABC (two awards),
and PBS (one award).³³
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\31\ Family Friendly Programming Forum Web site, FFP Mission, at
http://family
programawards.com (last visited Feb. 27, 2003).
\32\ Id.
\33\ Id. at Family TV Awards.
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Even more promising, ABC appears to be embracing the idea of the
family viewing hour. This year it launched its ``happy-hour'' strategy,
in which the network airs family-friendly programs from 8 p.m. to 9
p.m., in an attempt to capture a broad family audience. The reception
thus far has been positive, as the network has rebounded from a 23%
drop in viewership last season.³⁴
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\34\ Associated Press, ABC Gets a Feliz Navidad, Newsday, Dec. 11,
2002, at B31.
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In sum, I believe a voluntary commitment by broadcasters to devote
the first hour of prime time to family-friendly programming will be
good for families (and, one might think, good for business, as well). I
urge broadcasters to join this endeavor and collectively create at
least one hour, five days a week, when a family can turn to broadcast
television with comfort, confidence, and enthusiasm.

CABLE AND SATELLITE CHALLENGE: FAMILY-FRIENDLY PROGRAMMING PACKAGE

Broadcast, however, cannot be the end of the story. In a world in
which more than 85% of homes receive their television programming
through pay-TV, programming from these distributors clearly has become
pervasive. I believe cable and satellite, too, must rethink their level
of responsibility to the viewing public.
Certainly, cable and satellite operators carry a significant amount
of family-friendly programming. In fact, these providers offer parents
more options than ever before, such as Disney Channel, Nickelodeon, ABC
Family, Discovery Channel, The History Channel, and Hallmark Channel.
Thus, at all hours of the day, households that subscribe to these
services should be able to find programming that is suitable for
parents and children alike.
Unfortunately, that does not mean that subscription to a pay-TV
service is the complete solution. Because of the practice of
``packaging'' channels, when a parent purchases these services, that
parent necessarily buys a number of channels that are not intended for
children.
The advent of technological tools that could block objectionable
content was hailed as a potential panacea to this problem. The V-chip
(``violence'' chip), introduced in 1999, allows parents to use a rating
system to block a significant set of programs with violent or sexual
content. Since January 2000, the V-chip has been included in all new
television sets larger than 13 inches. To date, however, the V-chip has
not been as effective as its supporters had hoped. Recent studies have
shown that few parents know about the V-chip, and far fewer have
figured out how to make it work. Although more than 40% of American
parents now own a television equipped with a V-chip, less than 7% of
those parents use it to block programs with violent or sexual
content.³⁵ Thus, while the V-chip ultimately may prove to be
an effective long-term solution, it currently is not serving as an
effective tool for parents.
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\35\ News Release, Kaiser Family Foundation, Few Parents Use V-chip
to Block TV Sex and Violence, but More Than Half Use TV Ratings to Pick
What Kids Can Watch (July 24, 2001), available at http://www.kff.org/
content/2001/3158/V-Chip%20release.htm.
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Digital cable and satellite systems offer another tool for parents
to protect their children from certain content. Most providers employ
technology that enables a parent to limit access to whole channels
through use of a password. Fortunately, this function appears to be
easier to use than the V-chip. The number of digital cable and
satellite subscribers, however, is still relatively small. As a result,
it is still too soon to know whether most parents will actually learn
about this technology, whether they will use it, or whether it will be
circumvented too easily.
Accordingly, many parents today still may have concerns about
purchasing cable or satellite services. While most still choose to
subscribe, they nevertheless remain concerned about much of the
immediately accessible content. I therefore believe cable and satellite
operators would provide a valuable service to American families if they
would offer an exclusively family-friendly programming package as an
alternative to the ``expanded basic'' on cable, or the initial tier on
DBS.³⁶ Existing family-oriented premium channels could be
offered as well, either as part of the package or as an additional
purchase. As a result, subscribers who are interested only in
programming that they can enjoy with their family would finally have a
way to purchase only that programming. Other subscribers, meanwhile,
could continue to have the same options they have today.
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\36\ The existing package or ``tier'' could remain the same; the
operator could merely select certain family-friendly channels from the
existing tier and also offer them as a standalone ``family-friendly''
alternative package. An analogy could be made to the way cable
operators package the broadcast channels as part of ``basic'' package
as well as the ``expanded basic'' package.
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The availability of a family-friendly package would enable parents
to enjoy the increased options and high-quality programming available
through cable or satellite without being required to purchase
programming less suitable for children. I believe it would provide a
better tool to parents to enable them to enjoy excellent programming
options, yet it should not require significant change to existing cable
or satellite practices or regulatory intervention.
Alternatively, cable and DBS operators might choose to offer
relevant programming networks in a more a la carte manner. They could
permit parents to request not to receive certain programming that is
sold as part of a package, and reduce the package price accordingly.
Under this second option as well, parents would be able to receive (and
pay for) only that programming that they are comfortable bringing into
their home.
Under either of these two approaches, cable and DBS operators would
be empowering all parents--enabling them to bring multi-channel video
into their home without worrying about the channels their children
might fall upon while ``channel surfing.'' I believe such a tool would
be a significant benefit to parents, and I therefore encourage cable or
satellite providers to take up this challenge.

CONCLUSION

Over the last four decades, television has developed into a vastly
expanded medium, with more choice and excellent content. Certainly,
viewers are better off today. The viewing picture nevertheless leaves
something to be desired by parents who seek family-friendly
programming. Broadcasters and MVPDs can change this picture, and I
encourage them to provide parents with more options and better tools to
find such programming. We all will benefit.

Mr. Upton. Commissioner Abernathy.

STATEMENT OF HON. KATHLEEN Q. ABERNATHY

Ms. Abernathy. Thank you very much. Good afternoon, Mr.
Chairman, Congressman Markey and distinguished members of the
subcommittee. I appreciate the opportunity to appear before you
this afternoon to discuss what are very critical issues in our
society today.
A recent study found that even the youngest of children,
those under the age of 6, are immersed in today's media world
and a vast majority of parents have seen their children imitate
the behavior that they see on TV. Moreover, media has a
profound impact on our perception of the world and gives us an
impression of what is normal or acceptable in our society.
This hearing is the most timely response to an increasingly
urgent set of problems. The recent Super Bowl halftime show was
perhaps the most notorious, but only the most recent example of
a progressive coarsening of our culture as reflected in
broadcasting and cable and video games. And it's not simply an
issue with regard to excessive sexual content in many
mainstream programs. It's also reflective in the excessively
violent content of material that's distributed to children via
broadcasting and the internet. This has occurred despite this
Commission's vigorous enforcement of the indecency laws,
despite our announcement that these efforts would be further
intensified, despite our putting broadcasters on notice that
they're putting their licenses at risk and despite pending
legislation to increase our forfeiture authority.
Some broadcasters have clearly forgotten their public
interest obligations and the critical role that they play in
forming and shaping our society. In light of this environment,
the FCC must be given the ability to impose meaningful fines
that will deter the future airing of indecent programming.
Therefore, I wholeheartedly support your efforts to
increase our forfeiture authority as reflected in the Broadcast
Indecency Enforcement Act. Our current statutory maximum of
$27,500 is simply a slap on the wrist. The FCC also must do
more to clarify the legal parameters regarding the broadcast of
indecent material. Unfortunately, prior Commissions failed to
take up this issue and we are now forced to reconsider prior
precedent and provide new guidance to broadcast licensees. For
example, relying on past Commission rulings, the Enforcement
Bureau recently issued a decision determining that Bono's
language during a telecast of the Golden Globes was not
indecent. While I don't want to comment on what action the full
Commission may ultimately take, I will say that it's difficult
to imagine very many contexts where the knowing broadcast of
this particular obscenity would not be patently offensive under
contemporary community standards.
We must also recognize, however, that our enforcement based
measures at their best are necessarily after the fact and
monetary penalties alone may not fully prevent future
misconduct, especially when it comes to the live broadcasts of
radio or TV programming. Therefore, in addition to current and
even enhanced enforcement measures, we should improve and
amplify our forward-looking safeguards. Our laws try to help
parents understand and control the programs their children
watch in several different ways. The V-chip and the programs
rating legislation that Congress passed are intended to ensure
that parents can control access of broadcast programs into the
home. Is the system working well? I think clearly not. Most
parents do not understand how to use the V-chip and they're
unaware that a TV rating system exists.
The shortcomings of this early warning system are even more
troubling as it applied to violent programming, which unlike
indecency is not subject to FCC sanctions. This is not because
violence is less prevalent on television than indecency, on the
contrary. A recent report by the Kaiser Family Foundation found
that nearly two out of three programs contained some violence,
averaging about six violent acts per hour.
I know that you've grappled with the many legal and
practical issues involved in attempting legislatively to define
and limit televised violence, but in the absence of express
statutory authority, the Commission is reaching out to the
public to help make parents aware of the V-chip and the program
rating system and how to use them.
I've tried to address this problem by working with the
FCC's Consumer and Government Affairs Bureau to create an FCC
website called Parents Place. Parents Place explains the rating
systems, including what the ratings mean and when and where the
ratings are displayed and it directs parents to websites that
identify age appropriate programming by locality. It also
explains the V-chip as well as other blocking tools including
lock boxes.
But any system based on giving advance notice to parents
will only work when advance notice and information is, in fact,
made available. As last week's Super Bowl incident showed this
system simply won't work in the face of surprise. So we must
also consider ways to eliminate the kind of surprise indecency
that thwarts the best efforts of even the most vigilant parent.
Because such unwelcome surprises seem most apt to happen
during live broadcasts we should begin by evaluating the
effectiveness of audio and video delays on the broadcast of
live entertainment events. This type of safeguard has already
been implemented by a number of broadcasters and it would seem
to offer the best real time protection.
I also believe we need to enlist the help of broadcasters
if we are to ultimately address the core of consumer concerns
because the issues really go beyond more than simply what is or
is not legally indecent programming.
Mr. Chairman, if there's anything at all positive to be
said about what's happened it may be that all of us now
appreciate the significant challenges we face in ensuring that
our children are protected from indecent or inappropriate
programming while continuing to tap into the best of what media
has to offer.
In response to these challenges, I fully support your
efforts to increase our forfeiture authority, the expanded
enforcement efforts by the Commission and the possibility of
improving the existing safeguards and I welcome the opportunity
to discuss any of these matters further with you.
Thank you.
[The prepared statement of Hon. Kathleen Q. Abernathy
follows:]

Prepared Statement of Hon. Kathleen Q. Abernathy, Commissioner, Federal
Communications Commission

Good morning Mr. Chairman and distinguished Members of the
Committee. I appreciate the opportunity to appear before you this
morning to discuss ``The Broadcast Decency Enforcement Act of 2004''
and the FCC's efforts to protect children from indecent broadcast
programming.
A recent study found that even the youngest of children--those
under the age of six--are immersed in today's media world, and a vast
majority of parents have seen their children imitate behavior they have
seen on television.¹ This comes as no surprise: children are
a part of the broadcast audience for a substantial part of the
broadcast day. Moreover, media has a profound impact on our perception
of the world and gives us an impression of what is ``normal'' or
acceptable in our society.
---------------------------------------------------------------------------
\1\ Zero to Six, Electronic Media in the Lives of Infants, Toddlers
and Preschoolers, Fall 2003, The Henry J. Kaiser Family Foundation.
---------------------------------------------------------------------------
The law holds that broadcasters, because they make licensed use of
publicly owned airwaves to provide programming to the general public,
have a statutory obligation to make sure that their programming serves
the needs and interests of the local audience. These local audiences
inevitably include parents and children. The courts have upheld the
existence of a compelling government interest in the well-being of
children, as well as the prerogative of parents to supervise their
children in furtherance of that well-being. Those simple and
straightforward legal principles are the foundation of the laws and
regulations that limit the broadcast of indecent programming, and make
available to parents means to help them control the programming
available to their children.
Notwithstanding these well-established legal principles and the
steps taken in furtherance of them, this hearing is a most timely
response to an increasingly urgent set of problems. The recent Super
Bowl halftime show was perhaps the most notorious, but only the most
recent, example of a progressive coarsening of our culture as reflected
in broadcasting, cable, and video games. And it is not simply an issue
with regard to excessive sexual content in many mainstream programs; it
is also reflected in the excessively violent content of material
distributed to children via broadcasting and the internet.
It finally appears that the level of public tolerance is waning for
artists who regard any live appearance on broadcast television as an
opportunity for indecent utterances or actions. And it is also waning
for broadcasters who, despite all the surprise and contriteness they
display after an indecent incident has occurred, seem bereft of the
common sense and control needed to prevent such action before it
happens.
It is particularly surprising that some more recent incidents have
occurred despite this Commission's vigorous enforcement of the
indecency laws as described by Chairman Powell, despite our
announcement that these efforts would be further intensified by the
prospect of levying higher fines and subjecting each separate utterance
to a separate fine, despite our putting broadcasters on notice that we
would not hesitate to designate licenses for revocation if the
circumstances warranted, despite pending congressional legislation to
increase our forfeiture authority, and despite the Administration's
support for that legislation.
Historically the FCC's indecency rules and enforcement efforts have
generally been effective at balancing broadcasters' First Amendment
rights with society's right to protect its children from material that
is unsuitable for them. Our rules and precedents have allowed us to
calibrate our evaluations to the specific circumstances of particular
broadcasts and to reach results that, hopefully, reflect the judgment
an average broadcast viewer or listener would make. But with the advent
of new technologies that deliver hundreds of channels into consumers'
homes and an increased desire to target marketing to those elusive
viewers aged 18 to 24, it appears that some radio and TV broadcasters
have lost their footing and must be reminded not only of their public
interest obligations but also of the critical role they play in forming
and shaping society.
In light of this environment, the FCC must be given the ability to
impose meaningful fines that will deter the future airing of indecent
programming. Therefore, I strongly support the ``The Broadcast Decency
Enforcement Act of 2004'' and your efforts to increase our forfeiture
authority. Our current statutory maximum of $27,500 could be perceived
as a mere slap on the wrist. In contrast, for any violation of Title II
of the Act, we are authorized to fine up to $120,000 for a single
violation, and $1.2 million for continuing violations. The well-being
of our children is just as important as Title II violations and our
authority should be expanded to demonstrate this commitment.
The FCC also must do more to clarify the legal parameters regarding
the broadcast of indecent material and encourage best practices by the
industry. For example, relying on its understanding of past Commission
rulings, the Enforcement Bureau staff recently issued a decision
determining that Bono's use of the ``f word'' during a live telecast of
the Golden Globes was not indecent. The full Commission is reviewing
this staff decision. And while I would not want to comment on what
action the full Commission may ultimately take, I will say that it is
difficult to imagine very many contexts where the knowing broadcast of
this obscenity would not be patently offensive under contemporary
community standards.
Moreover, I am aware that concerns have been raised about the
processes currently used to handle indecency complaints, including how
these are enumerated and reported, the standard of documentation that
must be met even to file a complaint, and the length of time it has
taken us to resolve them. I support an expeditious reexamination of
these matters. If these or any other procedural rules are
unintentionally discouraging the public from filing otherwise credible
complaints, they can and must be changed.
Nevertheless, these enforcement-based measures, at their best, are
necessarily after the fact. And although I strongly support the pending
legislation to increase the amount the FCC may fine broadcasters for
violating the indecency rules, monetary penalties alone may not fully
prevent future misconduct, especially when it comes to the live
broadcast of radio or TV programming. Therefore, in addition to current
and even enhanced enforcement measures, it may also be appropriate to
consider improving and amplifying our complement of forward-looking
safeguards as well.
Currently, these forward-looking safeguards consist of laws and
regulations whose intent is to enable parents to limit their children's
television viewing to those programs consistent with whatever value
system the parents are striving to teach. Gone forever are the days
when a parent could simply sit a child down in front of the TV and
leave that child in the hands of the broadcast babysitter. Television
viewing today requires that responsible parents be proactive in
selecting and in monitoring the material their children are permitted
to watch.
Our laws try to help parents understand and control the programs
their children watch in several different ways, especially when it
comes to pre-recorded material. The rule restricting indecent
broadcasts to the hours of 10 p.m. to 6 a.m. puts parents on notice
that they must exercise particular care in supervising the material
that children watch or listen during those hours. But it is perhaps
even more important to understand what options are available to protect
children from adult programs that broadcast during the main part of the
broadcast day--programs that may not be indecent but include excessive
violence or sexual content or are simply inappropriate for young
children. The V-chip and program ratings legislation that Congress has
passed is intended to help parents understand the content of broadcast
programs, thereby assuring that the values they are attempting to
instill in their children won't be compromised by exposure to
programming at odds with those values.
Is this system working as well as one would wish? No, it is not.
Most parents do not understand how to use the V-chip and are unaware
that a TV ratings system exists.² At the same time,
broadcasters are trying to retain audiences that have been deserting
them in droves in favor of cable programming that is not subject to any
indecency restrictions. As a consequence broadcast licensees are
constantly pushing the programming envelope in an attempt to be more
like cable.
---------------------------------------------------------------------------
\2\ See, e.g., Parents and the V-Chip 2001, July 2001, The Henry J.
Kaiser Family Foundation.
---------------------------------------------------------------------------
The Commission is reaching out to the public to help make parents
aware of the V-chip and the program ratings system, and how to use
them. I have tried to address this problem by working with the FCC's
Consumer and Governmental Affairs Bureau to create an FCC web site
called Parents Place. Parents Place explains the rating systems,
including what the ratings mean and when and where the ratings are
displayed and directs parents to web sites that identify age-
appropriate programming. It also explains the V-chip is and how it
works. In addition, I dedicated an issue of my consumer newsletter,
Focus on Consumer Concerns, to how parents can protect children from
objectionable programming on television. This newsletter also includes
details on the V-chip technology and ratings system, as well as other
blocking tools, including lockboxes.
Nevertheless, any system based on giving advance notice to parents,
however it is constituted, will work only when advance notice and
information are, in fact, made available. As last week's Super Bowl
debacle showed, these early warning systems simply won't work in the
face of surprise. Whatever we may be able to do about either improving
the existing system or informing more parents how to use it, both
efforts are meaningless unless we also consider ways to eliminate the
kind of surprise indecency that thwarts the best efforts of even the
most vigilant parent.
Because such unwelcome surprises seem most apt to happen during
live-broadcast entertainment or awards shows, we could begin by
evaluating the effectiveness of a five- or ten-second audio and video
delay on the broadcast of live entertainment events. This type of
safeguard has already been implemented by a number of broadcasters, and
it would seem to offer the best assurance against the recurrence of the
kind of unfortunate spur-of-the-moment displays that we are
increasingly being subjected to.
I also believe we will need to enlist the help of broadcasters if
we are to ultimately address consumer concerns because the issues
encompass more than simply what is or is not indecent programming. I am
somewhat heartened that broadcasters are finally getting the message.
Just last week I spoke at a conference organized by Fox Entertainment
Group for their creative executives. All of senior management were
there, from Rupert Murdoch on down, and the focus of the conference was
how their producers and programmers can balance creativity and
responsibility. I discussed not only what the law requires with respect
to indecency on the airwaves, but how they, as broadcasters, cable
programmers, and filmmakers, can and should go beyond the letter of the
law to ensure that their programming reflects the values of the
communities they serve. My remarks were followed up be a series of
panels that included parents and their children, producers, government
officials, and members of such groups as Kaiser Family Foundation and
the Parents Television Council. The goal was to have an open and frank
discussion about media content, the FCC's indecency rules and the
networks responsibility to its viewers.
Mr. Chairman, if there is anything at all positive to be said about
what has happened, it may be that all of us now appreciate the
significant challenges we face in ensuring that our children are
protected from indecent or inappropriate programming while continuing
to tap into the best of what broadcasting has to offer. In response to
these challenges, I fully support your efforts to increase our
forfeiture authority and the expanded enforcement efforts by the
Commission, as well as the possibility of improving the existing
safeguards, and I welcome the opportunity to discuss any additional
matters the Members of this Committee may wish.

Mr. Upton. Thank you.
Mr. Adelstein.

STATEMENT OF HON. JONATHAN S. ADELSTEIN

Mr. Adelstein. Thank you, Mr. Chairman, Congressman Markey,
members of the committee. I appreciate your forceful leadership
on this issue and your tenacity today through this hearing and
over the years in the fight against indecency.
Like many of you, I sat down with my family to watch the
Super Bowl and like millions of others I was appalled by what I
saw. Not just the shock value stunt at the end, but the overall
crude performance in front of so many children, 1 in 5 American
children. And the advertising, I think, set a new low for what
should air during family time. A special family occasion was
disrespected.
One commercial that really hit home for me and really stung
me and a lot of my friends was a violent trailer for an unrated
horror movie that showed these terrifying monsters with big
fangs that were attacking people. I literally had to jump out
of my chair to try to get between the television and my child
so he didn't see it. I wonder how those who chose to air this
kind of violent programming can sleep at night when so many
American children had nightmares as a result.
No parent should have to jump in front of the TV to keep
their children from having to see such images. We need to help
parents navigate the difficult environment they face in today's
media. They're crying out for our help. Complaints are
exploding about the increasingly graphic and shocking
entertainment in today's media. Some observers note that
broadcasters are just responding to what cable programming has
on it. Take MTV, the cable network that is known for pushing
the envelope. It's owned by Viacom which also owns CBS. It's no
coincidence that MTV produced the halftime show. But the
network thoughtlessly applied the cable programmer standards
during the Super Bowl which is traditionally a family event.
As a musician myself, I recognize that there's a place for
MTV in our society, but many might prefer that MTV's more
explicit offerings not intrude into the mainstream of American
family life. Parents who purchase cable television have the
right, under the law and under our rules, to block any channel
they don't consider appropriate for their children. That choice
isn't available to over-the-air television and it certainly
took American families by surprise when it happened at the
Super Bowl.
As a parent and as an FCC Commissioner I share the public's
outrage with the increasingly crude radio and television
content we're seeing today. I've only served on the Commission
for about a year, but I'm proud that we've stepped up our
enforcement in that time. And we need to ramp it up even
further. In my view, gratuitous use of swear words or nudity
have no place in broadcasting. We need to attack indecency head
on and use the full authority provided to us by Congress in
fighting against profanity. We need to reverse the Bureau's
decision to allow the ``F-word'' to be used just because it was
in the form of an adjective.
I supported going to the statutory maximum under these
fines in many cases, but even this is woefully inadequate and I
welcome the efforts by you, Mr. Chairman, and by other members
of this committee to increase the fines tenfold. I'd welcome
that increase fining authority, I might add, across all the
areas of our jurisdiction.
Awaiting that authority, I've tried to find creative ways
and I've pushed for ways that we could deter indecency using
the authority that we have. These include fining for each
separate utterance and revocation hearings in serious repeated
cases. I worked last April to put the FCC on record and put
broadcasters on notice that we were beginning the stronger
enforcement regime going forward.
We now need to act more quickly as these complaints come in
and we have a lot of complaints before us that I think we're
going to get out the door rather quickly. We're going to try.
But there are limits to what the FCC can do. We've got to
balance strict enforcement of our indecency laws with the
requirements of the first amendment and the constitutional
protections that Americans enjoy. If we overstep, we risk
losing the narrow constitutional authority that we now have to
enforce the rules that and would set back our enforcement
efforts even further. So it may take more than the FCC to turn
this around.
Broadcasters have a big role. They need to show more
corporate responsibility. We grant them the use of the public
airwaves to serve the public interest. They've got to rise
above commercial pressures and recognize the broader social
problems that they may be compounding.
One question I often ask myself is whether the coarsening
of our media is responsible for the coarsening of our culture
or is it the other way around? I think it's both. I think they
feed on each other. And media consolidation intensifies those
pressures. Fast-growing conglomerates focus on the bottom line,
above all else.
Last summer, the FCC weakened its media ownership rules. We
need to reconsider that decision and restore those protections.
Local broadcasters also need the ability to reject network
programming that doesn't meet their local community standards.
The back and forth that local affiliates have with the networks
is critical in the fight against indecency and the FCC must
preserve it.
On the positive side, I think the FCC can do even more to
help families. We should complete a 3-year-old rulemaking on
children's television obligations in the digital age. This will
help meet educational needs and give parents tools they need to
help their children make appropriate viewing choices.
During the Super Bowl, and on far too many other occasions,
people feel insulted by what's broadcast at them. My job as an
FCC Commissioner is to protect our families from the broadcast
of indecent material. It's also my job to promote more healthy
fare for our children. After all, the airwaves are owned by the
American people and the public is eager to take some control
back.
Thank you, Mr. Chairman.
[The prepared statement of Hon. Jonathan S. Adelstein
follows:]

Prepared Statement of Hon. Jonathan S. Adelstein, Commissioner, Federal
Communications Commission

Mr. Chairman, Mr. Ranking Member, and members of the Committee,
thank you for inviting me to testify.
Like many of you, I sat down with my wife and children to watch the
Super Bowl. I was expecting a showcase of America's best talent, both
on and off the field, and the apotheosis of our cultural creativity
during the entertainment and advertising portions. Instead, like
millions of others, I was appalled by the halftime show--not just for
the shock-value stunt at the end, but for the overall raunchy
performance displayed in front of so many children--one in five
American children were watching, according to reports. And the
advertising set a new low for what should air during family time.
The Super Bowl is a rare occasion for families to get together to
enjoy a national pastime everyone should be able to appreciate.
Instead, a special family occasion was truly disrespected.
I could highlight any number of tasteless commercials that depicted
sexual and bodily functions in a vile manner. Any sense of internal
controls appeared out the window, so long as the advertiser paid the
multi-million dollar rate.
One commercial that really stung my family, and many other parents
with whom I spoke, was a violent trailer for an unrated horror movie.
It showed horrible monsters with huge fangs attacking people. I
literally jumped out of my chair to get between the TV and my three-
year old. Other parents told me they couldn't reach for the remote
control fast enough. I wonder how those who chose to broadcast such
violence can sleep at night when they gave so many American children
nightmares.
No parent should have to jump in front of the TV to block their
children from such images, whether during a commercial or a halftime
show. No parent should feel guilty for not being with their child every
single moment in case they need to block the TV during what most would
consider to be a family viewing event.
The entire Super Bowl broadcast was punctuated by inappropriate
images that were an embarrassment for our country. The halftime show,
with its global appeal, was a wasted opportunity to showcase the best
that U.S. culture has to offer. The U.S. has the world's greatest
musical culture to promote across the globe, and that includes the many
artists who performed at the event. Our musicians and artists offer a
vibrant musical melting pot that expands our horizons and enriches our
culture. As a musician myself, I am proud of artists who everyday
express their creativity without trying to one up each other in shock
value. There is plenty of magnificent talent here for the whole family
to enjoy. It is those performances that broadcasters should showcase.
Instead, the halftime show needlessly descended into lewdness and
crassness.
This latest incident is only the tip of the iceberg. There is
nearly universal concern about the state of our public airwaves. I
personally received more than 10,000 emails last week, and the FCC
received more than 200,000. But that pales in comparison to the number
of people who over the past year expressed their outrage to me about
the homogenization and crassness of the media. The public is outraged
by the increasingly crude content they see and hear in their media
today. They are fed up with the sex, violence, and profanity flooding
into our homes. Just this month at an FCC hearing in San Antonio, a
member of the audience expressed concern with indecency on Spanish-
language television novellas.
Complaints are exploding that our airwaves are increasingly
dominated by graphic and shocking entertainment. Some observe that
broadcasters are only responding to competition from cable programming.
Take MTV, a cable network known for pushing the envelope. It's owned by
Viacom, which also owns CBS. It's no coincidence that MTV produced the
halftime show. But the network thoughtlessly applied the cable
programmer's standards during the Super Bowl--the ultimate family
event.
As a musician, I recognize that channels like MTV have a place in
our society. I also understand and respect that many would prefer that
they not intrude into the mainstream of American family life. Parents
who purchase cable television have the legal right to block any channel
they don't consider appropriate for their children. More parents should
be made aware of this right. Free over-the-air broadcasting, however,
offers no such alternative to parents. For broadcast material designed
for mature audiences, it's a matter of the right time and place.
Enough is enough. As a parent and an FCC Commissioner, I share the
public's disgust with increasingly crude radio and television content.
I've only served on the Commission for about a year, but I'm proud
that we've stepped up our enforcement in that time. And we need to ramp
it up even further. In my view, gratuitous use of swear words or nudity
have no place in broadcasting.
We need to act forcefully now. Not surprisingly, complaints before
the FCC are rising rapidly, with more than 240,000 complaints covering
370 programs last year. In the cases on which I have voted, I have
supported going to the statutory maximum for fines. But even this
statutory maximum--$27,500 per incident--is woefully inadequate.
I welcome the efforts by Congress to authorize us to increase fines
substantially across all our areas of jurisdiction.
Awaiting such authority, I've pushed for new approaches to deter
indecency. We can increase the total amount of fines by fining for each
separate utterance within the same program segment. And we need to hold
hearings to consider revoking broadcasters' licenses in serious,
repeated cases. I worked last April to have the FCC put broadcasters on
notice that we were taking these steps to establish a stronger
enforcement regime. Our challenge now is to act more quickly when we
get complaints, and to ensure that our complaint procedures are as
consumer-friendly as possible.
But there are limits to what the FCC can do. We must balance strict
enforcement of the indecency laws with the First Amendment. If we
overstep, we risk losing the narrow constitutional authority we now
have to enforce the rules. Nevertheless, many cases I have seen in my
tenure are so far past any boundary of decency that any broadcaster
should have known the material would violate our rules.
So it may very well take more than the FCC to turn this around. We
are not the only ones with a public trust to keep the airwaves free
from obscene, indecent and profane material. Broadcasters are given
exclusive rights to use the public airwaves in the public interest. The
broadcasters themselves bear much of the responsibility to keep our
airwaves decent. As stewards of the airwaves, broadcasters are in the
position to step up and use their public airwaves in a manner that
celebrates our country's tremendous cultural heritage. Or they can
continue down the path of debasing that heritage. Their choices
ultimately will guide our enforcement.
Serving local communities is the cornerstone of the broadcaster's
social compact with the public. When people choose to become licensed
broadcasters, they understand that a public service responsibility
comes with that privilege. In his famous remarks lamenting the ``vast
wasteland'' of television, Newton Minow rightly observed that, ``an
investment in broadcasting is buying a share in public
responsibility.'' ¹ Every broadcaster should take that to
heart. Public responsibility may mean passing up an opportunity to
pander to the nation's whims and current ratings trends when it is more
important to stand up and meet the needs of the local community.
---------------------------------------------------------------------------
\1\ Newton N. Minow, ``Television and the Public Interest'' Speech
Before the National Association of Broadcasters (May 9, 1961).
---------------------------------------------------------------------------
Broadcasters need to show more corporate responsibility. They must
rise above commercial pressures, and recognize the broader social
problems they may be compounding.
Many factors set the cultural and moral tone of our society. I
welcome the attention that our indecency enforcement is receiving. I
don't think of it as silly or overblown, as some have suggested. The
question before America is whether the coarsening of our media is
responsible for the coarsening of our culture, or vice versa. My answer
is both. They feed on each other.
Media consolidation only intensifies the pressures. Fast-growing
conglomerates focus on the bottom line above all else. The FCC should
reconsider its dramatic weakening of media ownership limits last
summer.
Local broadcasters also need the ability to reject network
programming that doesn't meet their communities' standards. The FCC
must preserve the critical back-and-forth local affiliates have with
the networks in the fight against indecency.
In terms of taking positive steps, the FCC can do more to help
families. Because our particular focus today is on children, one vital
step is completing a pending rulemaking on children's television
obligations of digital television. The FCC started this proceeding more
than three years ago, yet it remains unfinished. We should quickly
complete this proceeding to help meet children's educational needs, and
give parents tools to help their children make appropriate viewing
choices.
During the Super Bowl, and on far too many other occasions, people
feel assaulted by what is broadcast at them. My job is to protect our
families from the broadcast of obscene, indecent or profane material.
That also means promoting healthy fare for our children. After all, the
airwaves are owned by the American people, and the public is eager to
take some control back.

Mr. Upton. Thank you.
Mr. Copps.

STATEMENT OF HON. MICHAEL J. COPPS

Mr. Copps. Mr. Chairman, Mr. Markey, Mr. Dingell, members
of the committee, thank you for having us up here this
afternoon to talk about an issue that has all America talking.
This is not the first time that I have expressed my concern to
the members of this committee on the important issue of
indecent and violent programming on the public's airwaves.
There is frustration and there is anger out there. I saw
the people's anger all last year when Commissioner Adelstein
and I took to the road during our media ownership forums and I
saw it again just 2 weeks ago when all the Commissioners went
to San Antonio. We saw parents lined up to talk from their
hearts about programming's addiction to sex, violence and
profanity. People all across this land of ours are demanding
action, action now to put a stop to it.
Certainly there have been a couple of high profile
incidents that have garnered widespread attention, none more so
than last week's shameful halftime display at the Super Bowl.
But that's just the tip of the iceberg. The real test for the
FCC is how we address the thousands of other complaints
pertaining to hundreds of other programs and so far we don't
have any results to crow about.
Until we walk the walk of enforcement and until it's there
for industry to see, they're just going to thumb their noses at
us.
To tackle the problem of sex and violence on our airwaves,
I am all for additional authority from Congress. We need all
the help and all the push that we can get from you. But in the
meantime, I want to see the Commission use the arrows we
already carry in our quiver. Accordingly, I'm asking my
colleagues to take the following five concrete steps.
One, use our full authority to punish transgressors with
license revocation, license non-renewal and higher fines. We
need to send the more outrageous transgressions and the repeat
offenders to license revocation hearings. We've already had
some sterling candidates for that. The Commission has never
used this authority and nothing would send so powerful a
message to those who produce these programs. We should have
done this long ago.
We need to impose meaningful fines for each utterance
rather than mere cost of doing business fines. We need to get
serious about enforcing the profanity part of the statute. It
sits there ignored. Let's also look at ads as well as
programming. And we need to establish an effective license
renewal process that meets our responsibility not to renew the
licenses of those who traffic in indecent and violence
programming. Companies that do not serve the public interest
should not hold a public license.
To reform the complaint process, the Commission should
commit to addressing all complaints within a specific
timeframe, such as 90 days. It is the Commission's
responsibility to investigate complaints that the law has been
violated, not the citizens' burden to prove those violations.
There is much we can do to make the complaint process user
friendly and Commissioners themselves, rather than the Bureau,
should be making the important indecency calls.
Three, tackle graphic violence. Compelling arguments have
been made that excessive violence is every bit as indecent as
the steamiest sex. We don't need more studies. We need action.
The Commission needs to move on this now.
Four, convene an industry summit that includes
broadcasting, cable and DBS. Industry needs to step up to the
plate to tackle the issues of indecent and violent programming.
I'll bet there isn't one executive sitting in this room this
afternoon who hasn't heard my personal plea on this over the
past 2\1/2\ years. I'm very pleased that Chairman Powell is
supporting this effort. Broadcasters used to police themselves
with a voluntary code. Why can't they do it again. This summit
needs to include, and absolutely must include, cable and
satellite providers. Perhaps cable could explore such options
as offering a family tier. Commissioner Martin has made
positive suggestions about this. Cable could also make sure
that family channels offer all family friendly programming and
broadcasters could commit to family hours during prime time.
A summit like this is not a substitute for us doing our job
or enforcing the law, nor should it be allowed to let anybody
off the hook, but I really think it's the least that industry
can be doing to step up to meet its public interest obligations
in this environment.
Five, affirm the rights of local broadcasters to control
their programming. In 2001, local broadcasters filed a petition
alleging that networks are hindering affiliates' ability to
refuse to broadcast network programming not suitable for their
communities. This petition has sat unaddressed for over 2
years. The Commission needs to issue a decision.
One other thought, I think it's important. At the same time
that we have not been adequately enforcing indecency laws, the
Commission has been loosening media concentration rules without
considering whether there is a link between increasing media
consolidation and increasing indecency. It makes sense that as
media conglomerates grow ever bigger and control moves further
away from the local community, community standards go by the
boards. We open the door to unprecedented levels of media
consolidation. And what do we get in return? More filth, less
real news and a lot of programming that our kids just should
not be experiencing. We should have examined this last year
before we opened the doors to more concentration.
The consolidation locomotive continues to barrel down the
track, doesn't it, with the wires reporting this morning the
possible bid by Comcast to take over Disney. I think we'll all
want to look seriously at how this would impact the ability to
control distribution and content.
In closing, I want to see this Commission really step
forward and focus on the things we can do with the authority
you long ago gave us. This is about the public interest,
responsible broadcasting and the well-being of our kids. This
is about telling millions of Americans that we are going to see
this job through.
Thank you again for this hearing. I think it's a true
public service. Thank you for the commitment and dedication of
so many of you on this committee on what I think is both a
legal and a moral issue.
I look forward to hearing your comments and for your
thoughts on all of this.
[The prepared statement of Hon. Michael J. Copps follows:]

Prepared Statement of Hon. Michael J. Copps, Commissioner, Federal
Communications Commission

Mr. Chairman, Members of the Committee, I am honored to appear
before you today on the subject of indecency on the people's airwaves
and at a time when millions of those people are looking for action to
halt what appears to be media's race to the bottom--if, indeed, there
even is a bottom to it. I appreciate the attention this Committee is
devoting to the issue and I am grateful to you for the opportunity to
share some of my perspectives, and more importantly, to hear yours.
Every time I boot up my FCC computer, every time I visit a town or
city across America, I hear the same refrain from people: we are fed up
with the patently offensive programming--the garbage--coming our way so
much of the time. I saw the people's anger all last year when
Commissioner Adelstein and I took to the road in our media ownership
forums, and I saw it again just two weeks ago when all the
Commissioners were in San Antonio--parents lined up to express their
frustration with programming's addiction to sex, violence and
profanity. We even heard from children who were fed up with what
they're seeing and hearing. People all across this land of ours are
demanding action--action now--to stop the increasing sex and violence
bombarding their airwaves.
Indecency was the subject of my first statement when I arrived at
the FCC in 2001. For much of the past two and a half years, it has been
an uphill battle. I am pleased that the Commission now seems to be
coming around to the idea that we need to take action against
indecency. I hope we will now also get serious about our obligation to
enforce the profanity part of the statute. In any event, I will know
the Commission is serious about tackling indecency when we compile a
record to match our rhetoric. We are not there yet.
Certainly there have been a couple of high profile incidents that
have garnered widespread attention, none more so than last week's
shameful half-time display at the Super Bowl, as probably a quarter
billion people around the world watched us celebrate what should have
been an all-American evening of sports and artistic creativity for the
entire family. We got something far different. This latest episode has
had a galvanizing effect both within and outside the Commission.
Sometimes one incident can spark a revolution, but the seeds of this
revolution have been building--and have been painfully obvious--for a
long, long time.
The real test for the FCC is not how we address this particular
incident, although what we do and how quickly we do it will be
instructive. The real test is how the Commission addresses the
thousands of other complaints pertaining to hundreds of other programs.
And we have so far failed this test. Let's look at the facts. Under the
FCC numbers, which at that time significantly under-counted the number
of complaints we actually received, there were almost 14,000 complaints
about 389 different programs in 2002. Yet, of those hundreds of
programs, we issued a mere seven notices of apparent liability (NALs)
that year--and only two of those have been fully resolved. In 2003, the
number of complaints jumped to over 240,000 and concerned 375 different
programs. Yet, this past year we issued only three NALs. If I was a Big
Media executive or an advertising consultant figuring out how to
attract all those 18-34 year old eyeballs to shows so I could sell them
products, I wouldn't exactly be quaking in my boots that the big hammer
of the FCC was about to cause me serious pain. I'd say: ``There aren't
any torpedoes, full speed ahead.'' Too many indecency complaints from
consumers and an avalanche of truly indecent broadcasts are falling
through the cracks. Concerned parents are paying the price. Worse, our
kids are paying a price they shouldn't have to pay.
``Why don't those parents just turn the set off,'' I have been told
as I push to get some action on indecency. But are we supposed to just
turn off the all-American Super Bowl? The half-time show gives the lie
to that one. ``Let the V-Chip handle it'' is another refrain I hear.
Don't get me wrong, I like the V-Chip. But it was irrelevant that
Sunday night. How do you warn against half-time shows or slimy ads or
sensation-seeking previews of coming movie and television attractions?
Not enough has changed over the past few years in the FCC's
enforcement of the indecency laws. And at the same time, I believe that
some of the Commission's actions pretty much guarantee that things will
get even worse. Instead of enforcing indecency laws, the Commission
recently rewarded giant station owners by dismantling media
concentration rules that provided at least some protection against too
few Big Media companies owning too many broadcasting outlets. We open
the door to unprecedented levels of media consolidation and what do we
get in return? More garbage, less real news and progressively crasser
entertainment. Should we really be surprised that two of the very
biggest media conglomerates--Viacom and Clear Channel--alone accounted
for more than 80 per cent of those fines that were proposed for
indecency? We weakened our concentration rules without even considering
whether there is a link between increasing media consolidation and
increasing indecency on our airwaves. It makes intuitive sense that
there is. As media conglomerates grow ever bigger and control moves
further away from the local community, it stands to reason that
community standards go by the boards. Who is going to be more attuned
to community standards--the national owner who is driven by Wall Street
and Madison Avenue, or a broadcaster closer to the local scene and who,
in some communities, you still see at church, at the store, and around
town? I begged for us to study what relationship exists between the
rising tide of media consolidation and the rising tide of media
indecency before we voted on June 2 to loosen the ownership safeguards.
I thought we owed that to our kids. Maybe now the rising tide of public
anger will force some action.
We know this: there is a law against indecency. The courts have
upheld it. And each one of us at this table has an obligation to
enforce that law in a credible and effective way. Each of us has a
mandate to protect children from obscene, indecent and profane
programming.
Some have argued that the Commission needs additional authority
from Congress so that it can make a serious effort to stop indecency. I
am all for more authority. But in the meantime, let us use the arrows
we already hold in our quiver. Accordingly, I am asking my colleagues
to take the following five steps, all of which can be done under our
current statutory authority and which would send a strong message that
the FCC is serious about eliminating indecency on our television sets
and radios.
1. Use Our Full Authority to Punish Transgressors--License
Revocation, License Non-Renewal and Higher Fines: We need to send some
of the more outrageous transgressions and repeat offenders to license
revocation hearings. Taking some blatant offender's license away would
let everyone know that the FCC had finally gotten serious about its
responsibilities, and I think we would see an almost instantaneous
slamming on of the brakes in the race to the bottom. The Commission has
never used this authority.
If the Commission can't bring itself to do this, we should at least
be imposing meaningful fines. ``Cost of doing business fines'' will
never stop Big Media's slide to the bottom. We should have long since
been fining violators for each utterance on a program, rather than
treating the whole program as just one instance of indecency. All of
the fines we have imposed against Viacom could be paid for by adding
one commercial to the Super Bowl--and the company would probably end up
with a profit. Fining every utterance could lead to significantly
higher fines. We have long had the authority to take this step. We
should have been using this authority years ago.
The Commission should also establish an effective license renewal
process under which we would once again actually consider the manner in
which a station has served the public interest when it comes time to
renew its license. It is our responsibility not to renew the licenses
of those who air excessive amounts of indecent and violent programming.
We need to take our job seriously in the license renewal process. It
all comes down to this: station owners aren't given licenses to use the
public's airwaves to peddle smut. They are given licenses to serve the
public interest. When they no longer serve the public interest, they
should no longer hold a public license.
2. Reform the Complaint Process: The process by which the FCC has
enforced the indecency laws has for too long placed inordinate
responsibility upon the complaining citizen. That's just wrong. It is
the Commission's responsibility to investigate complaints that the law
has been violated, not the citizen's responsibility to prove the
violations.
The Commission should commit to addressing all complaints within a
specific timeframe such as 90 days. Today, when complaints often
languish, the message is loud and clear that the FCC is not serious
about enforcing our nation's laws. Recent cases such as Infinity's
repulsive WKRK-FM case, Infinity's Opie and Anthony show and Clear
Channel's ``Bubba the Love Sponge'' all took more than a year for an
initial decision. Congress expected action from the FCC, but all too
often our citizens' complaints seem buried in bureaucratic delay or
worse. I would add here that some of this material goes beyond the
indecent to the obscene. We ought to treat it as such and move against
it or, if we're still timorous about it, send it over to the Department
of Justice with a recommendation for criminal proceedings.
Lack of complete information about what was said and when it was
broadcast should not be allowed to derail our enforcement of the laws.
The Commission appears to be coming around to the idea that a tape or
transcript is not required. Yet, the Commission's website still seems
to indicate that this information is needed or a complaint will be
dismissed without an investigation. I have suggested that broadcasters
voluntarily retain tapes of their broadcasts for a reasonable period of
time. Many broadcasters already retain such recordings, but I believe
that all broadcasters should do so. That way, when someone complains
about what went out on the public airwaves we can have a record to see
how those airwaves were used--or abused.
And, in matters of such importance, I believe the Commissioners
themselves, rather than the Bureau, should be making the decisions.
Issues of indecency on the people's airwaves are important to millions
of Americans. I believe they merit, indeed compel, Commissioner-level
action.
3. Tackle Graphic Violence: It's time for us to step up to the
plate and tackle the wanton violence our kids are served up every day.
Compelling arguments have been made that excessive violence is every
bit as indecent as anything else that's broadcast. Those arguments are
strong enough to demand our attention. We don't need more studies. Over
the years, dozens of studies have documented that excessive violence
has hugely detrimental effects, particularly on young people. I don't
say this is a simple problem to resolve, because it is not. But that's
no excuse to run away from it. Wanton violence on the people's airwaves
has gone unaddressed too long. Here too, we pay a high price,
especially the kids.
4. Convene an Industry Summit that includes Cable and DBS: I have
long suggested, without much success, that broadcasters voluntarily
tackle the issues of indecent and violent programming. I'll bet there
is not one industry executive sitting in this room today who hasn't
heard my plea on this over the past two-and-a-half years. Many of you
will remember the Voluntary Code of Broadcaster Conduct that for
decades saw the industry practicing some self-discipline in the
presentation of sex, alcohol, drug abuse and much else. It didn't
always work perfectly, but at least it was a serious and credible
effort premised on the idea that we can be well-entertained without
sinking further into the bottomless depths of indecency. The issue here
is not forcing industry to do this; it's a question of why doesn't
industry step up to the plate and have a conversation with itself that
tens of millions of Americans want it to have.
This summit must include cable and satellite providers. Eighty-five
percent of homes get their television signals from cable or satellite.
Most people don't recognize the difference as they flip channels
between a broadcast station and a cable channel. Because cable and
satellite are so pervasive, there is a compelling government interest
in addressing indecency when children are watching. The courts have
already applied this to cable.
It would be infinitely preferable, and far quicker, to have
industry step up to the plate rather than have to go the route of
legislation and regulation that can take a long time and is likely to
be contested every step of the way. Perhaps cable could explore such
options as offering a family tier so that families don't need to
receive channels like MTV in order to get the Disney Channel. My
colleague Commissioner Martin has made positive suggestions about this.
Cable could also make sure that family channels offer all family-
friendly programming. And broadcasters could commit to family hours
during prime time.
I believe that with encouragement from Congress and from the
Commission, and to the applause of most Americans, our radio,
television, cable and satellite chieftains could come together to craft
a new code of conduct that would serve the needs of their businesses as
well as those of concerned families. And I'll bet they could get it
done this very year. Where is the industry leader who will do this?
5. Affirm the Rights of Local Broadcasters to Control Their
Programming: I was struck at our recent Charlotte localism hearing when
I asked both a local broadcaster and a representative from one of the
stations owned by a national network how often they had preempted a
show based on community standards. The national station representative
admitted he had never done so. The local owner stated that he
frequently took the initiative--and this isn't easy--and he refused to
run shows like Married by America, Cupid, and others.
In 2001, local broadcasters filed a petition asking the Commission
to affirm a local broadcaster's autonomy in making programming
decisions for its station. I think we should be concerned about
allegations that networks are hindering affiliates' ability to refuse
to broadcast network programming that is not suitable for their
communities. Yet, this petition has sat unaddressed for over two years.
The Commission should issue its decision promptly.
Mr. Chairman, distinguished Members of this Committee, these are a
few concrete steps that I advocate our taking to demonstrate that this
Commission is finally dead serious about taking a firm stand against
indecency as the level of discourse on the public's airwaves
deteriorates and stations continue to push the envelope of outrageous
programming and promotions ever further. I don't know what the precise
mix of legislative initiative, regulatory enforcement and voluntary
industry action should be here, but millions of Americans are asking us
to get on with the job. Today we have the best of television and we
have, undeniably, the worst of television. When it is good, it is very,
very good; and when it is bad, it is horrid. It is also shameful. I
don't believe this is what the great pioneers of the broadcast industry
had in mind when they brought radio and television to us.
This is about the public interest, responsible broadcasting, and
providing programming that appeals to something other than the lowest
common denominator. There needs to be inviolable space out there that
appeals to the better angels of our nature and that carves out a safe
harbor for our kids. That may become harder and harder to do as
technology evolves, but our public interest responsibility does not
evolve. It is a constant. And if we are true to it here, we will find a
way to translate all the concern and anger over this issue into
policies and procedures that can yet vindicate what the public airwaves
can do for us all. We need to do this now.
This hearing is a public service and I appreciate the opportunity
to testify. I am pleased that this Committee is on the job and
demonstrating its commitment on a matter that so many Americans want to
see tackled and resolved. I look forward to hearing your comments and
further thoughts on all this.

Mr. Upton. Thank you all for your testimony. As you know we
have a 5-minute rule for us with questions and I want to ask
you a question that you probably didn't hear us ask the first
panel. I asked Mr. Karmazin it was my understanding that
Infinity Broadcasting which had been fined in a number of
cases, but one was $357,000, and he indicated that Infinity had
not ever paid the forfeiture penalty in the two Opie and
Anthony cases. As I read the transcript from that case, I can't
imagine something more indecent than what I read. What is the
FCC going to do about cases like that where you render a
judgment, you issue a fine and in fact, it's not paid years
after it was done?
Chairman Powell?
Mr. Powell. Let me explain how that works because I think
it's an important question.
Mr. Upton. And I want to get into the due process of what
their rights are and how you look at license revocation.
Mr. Powell. What happens is the statute requires us to (a)
once you receive a complaint, conduct an investigation. Then if
you believe that a violation has occurred, you have to issue a
Notice of Apparent Liability. Then the parties under the due
process rights get to challenge your supposition.
The case that you're talking about, for example, the
Commission agreed with your judgment as to the substance and
has issued a Notice of Apparent Liability just last year, just
recently. The parties, in response, have filed challenges to
our decision, sort of the equivalent of reconsideration or
appeal of the apparent liability. That process now is with us.
We'll either accept or reject their plea. If we reject it, and
they refuse to pay, we refer those forfeiture collections to
the Department of Justice who goes in to District Court in the
local community, usually, to enforce those judgments. There are
no forfeitures outstanding pending at DOJ now, but if CBS
continued to fight this after we reach a final conclusion, then
that's what our next process would be.
Mr. Upton. When are you likely to reach a final conclusion?
Mr. Powell. I think that case, in particular, is probably
fairly imminent.
Mr. Upton. And are you able to revoke the license? Let's
say they continue not to pay the fine, you send it to the
Department of Justice. I've heard and I'd like you to correct
me if I'm wrong, I've heard that there are some in the
Department of Justice say it's not working, fines are too
small. Forget it. We're going to spend more going after these
folks. Some of the fines are in the magnitude of $350,000, some
are much smaller, but it's not worth it in terms of our time to
go seek some judgment in Federal Court to go after them. Is
that accurate?
Mr. Powell. Well, I can't speak for them and I haven't
heard that directly from a Justice Department official, but I
think it points out another consequence of inadequate
penalties, that if you're talking about $6,000 or $7,000 which
is the base amount of forfeitures or even if you're talking
about the maximum for one single incident of $27,500, you know,
packing the lawyer's bags cost almost that much money to go
collect it.
Now fortunately, at least in the last couple of years we've
had relatively good success of getting the parties to stop
contesting and pay the forfeiture. But if they go to the wall
and we have to prosecute the case, I do worry that we're not
talking about amounts high enough----
Mr. Upton. You have to go through all those steps to revoke
a license?
Mr. Powell. You even have to go through more to revoke a
license. All those steps are to find liability to revoke a
license. The statute requires you first put it into hearing,
and then you have an adjudicatory hearing that can last as long
as it takes, literally, a mini-trial at the Federal
Communications Commission in front of an Administrative Law
Judge who then would reach a recommendation that would then
come back to the Commission.
Mr. Upton. I was asked yesterday about our Bill 3717 which
you've all commented on in a very favorable light and we
appreciate that. I was asked that, Mr. Upton, if your bill
passes does that mean we'll have to increase the FCC's
enforcement budget. My immediate response was I hope that we
can decrease it because the penalties will be so severe that,
in fact, you won't have anyone looking to violate the law and
therefore you aren't going to have the complaints to move
forward.
Now what concerns me as I read through the testimony of the
thousands of cases and the hundreds of thousands of complaints
that are before you and yet we see a relatively few judgments,
as you weigh it against all of the complaints that are
measured.
I'd like you to comment on that. As you look at all of the
number of complaints, how many judgments are you able to have
and in fact, do you need more staff, more time to go after
these folks that clearly are in violation?
Mr. Powell. Let me try to do that as briefly as I can and
anyone else can comment. One, we could always use more staff.
I'm trained to always say that. I also think that if you start
talking, and I'm more than happy to be engaged in that dialog,
about time limits. You want decisions, complaints processed in
90 days. You can imagine 14,000 complaints in a year period at
90 days' interval is a fairly intense task. We have 25
attorneys dedicated solely to this. I think you'd be talking
about an order of magnitude need in increase in resources and
penalties. I just want to make that point.
And so in terms of the number of fines. My view is we can
always do better, but I think it is important to get the
perspective. There can be lots of complaints, but you should
focus on how many programs are being complained about. So for
example, in 2002, there were 14,000 complaints for some 389
programs. In 2003, there were 250,000 complaints, but actually
toward fewer programs, but not by much, 375 programs. So how
many actions we bring is against the number of violating
programs. So I wouldn't compare--I personally would compare 3
or 6 to the 375, and you could go through them individually and
decide whether you agree with the merits of the Commission's
decisions. But a lot of those complaints turn out to not meet
the indecency standards. Some of them are cable where we don't
even have authority, so they're gone already.
And I can only say that while I'd like to be more
aggressive, the number of complaints per year is roughly
similar to and actually this Commission has a higher record of
prosecuting than almost every Commission in the history of the
FCC.
I also would note finally and I'll leave it at that that
the amount of fines per finding for us is dramatically higher
than at any other time. It's something like $71,000 per finding
as opposed to closer to $7,000 or $10,000 in years past. And I
also would say that the time isn't over. I think there are a
very serious number of very serious cases moving toward the
Commission now and I think you're going to see an order of
magnitude increase in the findings.
Mr. Upton. Mr. Markey?
Mr. Markey. Thank you. Mr. Chairman, there's a filing over
at the Commission that would give affiliates more ability to be
able to reject indecent programming. It's been sitting there
for 3 years. It's been referenced by Mr. Martin and Mr. Copps
in their testimony. You seem to oppose that, otherwise,
apparently on its face. It doesn't appear to be a good reason
why we wouldn't have some action on it.
When will you have action on this empowerment of the
affiliates to be able to reject the quantity and quality of
violence and sexual material that comes into people's homes?
Mr. Powell. I think it's very important to put on the
record that whatever the substance of that petition, there is
no question whatsoever under the law that a local affiliate has
a right as a matter of statute to reject programming and has a
legal obligation to do so----
Mr. Markey. When will action on that petition be taken, Mr.
Chairman?
Mr. Powell. It will be taken this year.
Mr. Markey. This year?
Mr. Powell. Yes.
Mr. Markey. Not 3 months, not 6 months, but over the next
10 months after waiting 3 years?
Mr. Powell. The only problem I have with that, Mr. Markey,
is one of the reasons it's stalled is the Commission hasn't
exactly figured out the best thing to do with it.
Mr. Markey. I appreciate that, but I think--will you put it
on the front burner? And I think right now is the time, Mr.
Chairman, to put this issue on the front burner.
If you're going to be doing something, that's the issue.
Empower the affiliates to say no and you'll get a marketplace
reaction from the networks. Don't wait a year, Mr. Chairman. It
will be a big mistake.
Mr. Powell. I'll accept it, but I'll also emphasize again
that they have absolutely----
Mr. Markey. I appreciate that. Second question is this,
yes, there were 375 different programs and 240,000 complaints,
but only three Notices of Apparent Liability, three. Why was
that? Why was the number so low, Mr. Chairman?
Mr. Powell. First of all, it's important to note that we're
not finished. There are three that have been issued and there
are 30 that are pending and the reason they are the remaining
that are pending is because they are the most serious. And I
can tell you without revealing the specifics of them, that a
significant number of them are heading for apparent liability.
So we're not done with closing out that year of complaints.
We have a significant number of them under investigation.
Mr. Markey. Well, you closed out 2002 with only seven.
Mr. Powell. The calendar year is closed, but there are
14,000 complaints. All but 30 of them have been----
Mr. Markey. How long does it take to close out a year, 2002
is still open?
Mr. Powell. There are complaints from 2002 that are still
under----
Mr. Markey. We're in 2004.
Mr. Powell. Yes.
Mr. Markey. It's critical for the FCC, Mr. Chairman, to act
in a timely fashion to create the disincentive before the
programs themselves get canceled. There has to be some
punishment that reflects the contemporaneous commitment of this
violation of the law. You can't have 2002 complaints still open
in 2004 with no point at which you're sure that you've
completed all of those actions.
Third, in the 1992 Cable Act, there's a provision requiring
cable operators to provide by sale or lease equipment to block
unwanted cable channels so if you don't want MTV, you can
request equipment to block that out and the cable operator is
required to block out MTV if you request it.
What can you do to mandate that all cable operators notify
all subscribers in America that they have this right and if
they request it as consumers that the cable companies will
provide that service to that home immediately. What can you do
to provide that immediate mandate to the cable operators and
information to subscribers across America?
Mr. Powell. I actually think it's a decent idea. I'd have
to look at what authority we have to mandate it, but I will
note two things. One, in the letter that I sent to the cable
industry just yesterday urging them to take a role in
indecency, there was mention of specifically improving the
educational efforts----
Mr. Markey. I don't want improving educationals. I want the
cable industry to be mandated to provide this information to
consumers. When you reach a level of concern that parents have,
I think the least that the FCC should be able to do is to
mandate to the cable industry, inform every parent that they
have a right to disconnect MTV and that the cable company will
do it for them. What's wrong with that formula?
Mr. Powell. There's nothing wrong with that if we have the
legal authority and I just don't have confidence right now,
without looking at it carefully whether we do. We don't have
legal authority to do everything----
Mr. Markey. If you don't have it, do you want us to give it
to you?
Mr. Powell. Sure.
Mr. Markey. Okay. And Mr. Adelstein or Mr. Copps, could you
tell us how you believe that media concentration is affecting
indecency and affecting the marketplace of ideas?
Mr. Copps. Well, we don't know for sure, but it's common
sensical, it's intuitive almost that the more you take the
design of programming, the production of programming away from
the local community or the region and put it in some
advertiser's headquarters whose main reason to live is to sell
products to 18 to 34 year old eyeballs, that you're probably
going to end up with fare that's a little bit less family
friendly and child friendly. And we've seen this time and
again. I was distressed to see after one of the recent mergers
involving DirectTV, one of the first things we read about was
an agreement to set up a porn channel. I don't think there's
any question that there's a connection, but we need to know for
sure. And I pleaded before we voted on media consolidation last
June 2, we owe it to our children, let's look to see if there's
a connection between the rising tide of consolidation and the
rising tide of media indecency. And we did not do that and I
think that was a disservice to our kids and we need to be
serious about this and get on with it.
Mr. Markey. Mr. Adelstein?
Mr. Adelstein. Well, you do see the rising tide of
indecency and crassness in the media, coarseness. You see the
rising tide of consolidation. Is there a connection? Maybe. We
don't know for sure. As Commissioner Copps indicated, we should
know that before we take any steps to loosen the media
ownership rules.
The question I have is a market-based question. What do
these companies do as they become larger and larger, and
they're accountable to Wall Street. They have a fiduciary
responsibility to make as much money as they possibly can. They
are doing everything they can to make as much money. It's an
eat or be eaten world.
Just today, we heard about Comcast trying to swallow
Disney. So it's swallow or be swallowed. How do you avoid being
swallowed? You get your stock price up so that you can swallow
somebody else. How do you do that? It's quarterly results. You
have to make as much money as you can every quarter. How do you
do that? If it takes pandering, if it takes crassness, if it
takes making people eat worms on TV, if it means having people
dance in lewd ways, whatever it takes, apparently these
broadcasters are willing to do it. So there may well be a
connection there.
Mr. Markey. Thank you. Thank you all for coming here today.
Mr. Upton. Mr. Bilirakis.
Mr. Bilirakis. Thank you, Mr. Chairman. Mr. Chairman, and
members of the Commission, thank you for being here and I don't
know whether you sat through this entire thing since 10
o'clock, 10:30 this morning, but if you did, then you did hear
so much that took place.
Mr. Markey made a punch regarding the petition which was
submitted some 3 years ago. The network affiliate stations
alliance, I don't know, I'm sure you have a lot of
complications and complexities in your job, but 3 years seems
like an awfully long time.
Can I ask you if you can respond, do you believe, Mr.
Chairman, that under the Communications Act and the FCC's
rules, local TV stations have the right indeed, the legal duty,
if you will, to reject network programs they deem to be
unsuitable for their communities?
Mr. Powell. Absolutely.
Mr. Bilirakis. You do. Ms. Abernathy?
Ms. Abernathy. Yes, absolutely, they have the legal right.
Mr. Bilirakis. Absolutely, you agree, go ahead.
Ms. Abernathy. Absolutely. They have the right and they
have the obligation.
Mr. Bilirakis. And Mr. Martin, you certainly went into it
in your written testimony. You certainly agree.
Mr. Martin. Yes sir.
Mr. Bilirakis. Mr. Adelstein, do you?
Mr. Adelstein. Yes. I indicated in my testimony that I do
believe they have that legal right and the right under our
rules to reject programming they consider inappropriate.
Mr. Bilirakis. Mr. Copps?
Mr. Copps. They do indeed. It's very difficult for them to
exercise that right.
Mr. Bilirakis. What is taking 3 years? You all agree,
apparently. I realize that terminology is important and what
not, but I can't get over that. You apparently agree.
Well, we've got some votes coming up. It's important, Ms.
Abernathy and gentlemen, that you realize that what we're
trying to do here is to be helpful. We have constituents out
there that we represent and we want to be helpful to them and
responsive to them and we want to be helpful to you in terms of
helping you to do your job, the job as you see it. It seemed to
me in this particular area, at least, I realize the definition
of indecency and what not is very difficult and no matter how
much we define it here now as one of the witnesses said, shared
with us at the last hearing that we had, new words and new
phrases would come out of the woodwork that we can't even
imagine now and it would be difficult. But it seems to me that
one way, as long as this is tailored correctly so that it does
exactly what we intend, would be to give the local programmers,
the local broadcasters, the local affiliates the right to make
those types of decisions regarding content.
We can go into the profit motive and we can go into the ads
and things of that nature. I don't know that I think they
should have the right regarding some of those areas, but if we
all agree that they should have that right in terms of content,
then by golly, we ought to do it.
I was planning, the Chairman asked me to hold off, but I
was planning to offer an amendment to his bill, his and Mr.
Markey's bill to that effect. We're apparently going to wait
here, because as I understand it, the Commission is really
addressing this now or trying to address it now and hopefully
you will satisfactorily. If not, by the time we hit the full
committee mark up we're going to do something in that regard.
The additional thing, just very quickly, in terms of
authority, lines of authority and what not, I'm not really sure
what authority you have over MTV, over the NFL, over the
performers, that sort of thing. You ought to share with us
areas--you've already indicated in one of your responses, Mr.
Chairman, to Mr. Markey the areas that you feel you should have
authority and I'm not saying we're going to give you carte
blanche, the authority that you would ask for, but certainly
help us to help you so to speak.
Having said all of that, I guess I won't go take any more
time, Mr. Chairman, because I know we have that series of
votes.
Thank you very much.
Mr. Upton. We have 12 minutes remaining. We have two votes.
Mr. Dingell, do you want to do your 5 minutes now or do you
want to come back after the two votes?
Mr. Dingell. Mr. Chairman, it would be my preference to
come back.
Mr. Upton. Okay, we'll adjourn until the two votes are
over. My guess is that we'll come back at 4:25.
[Off the record.]
Mr. Upton. I just want to remind my colleagues and the
staff that we do still intend to go with the markup tomorrow
morning at 9:30. I don't intend to see it last very long. We
have an agreement on both sides to offer and withdraw
amendments and even though we're done with votes, recorded
votes on the House floor for the week, I think this will be
fairly quick and members will be able to go back to their
Districts immediately following.
We will continue with the questions. I know Mr. Dingell is
on his way back. I talked to him on the floor but since he's
not here yet, we'll go to next on the list which is Mr. Stupak,
5 minutes.
Mr. Stupak. Thank you, Mr. Chairman. Chairman Powell, on
indecency, can you tell me how many employees does the FCC have
looking at this issue? Let's say in 2000, there were 14,000
complaints to the FCC on indecency. How many employees did you
have then looking at whether or not you should take action?
Mr. Powell. We have roughly 20 to 25 that do it virtually
full time. Depending on work load, sometimes we have to try to
reallocate resources to zoom that up a little bit, but that's
usually the dedicated amount.
Mr. Stupak. And then in 2003, it went to 340,000
complaints?
Mr. Powell. Yes.
Mr. Stupak. Still same 20 to 25 people?
Mr. Powell. Oh yes.
Mr. Stupak. You talked about the length of time it took to
get a response because I'm a little critical here of the FCC.
It just seems like it takes so long to get any kind of
resolution. Do we have to develop some kind of scheme where you
have so many days to respond, so many days to respond back, to
speed up this process? I mean it doesn't seem to me it should
take this long, especially when the problems seems to be
spiralling out of control.
Mr. Powell. I won't attempt to disagree that we could be
faster. I'm not satisfied with our pace of decision and we've
worked very hard and by the way, I think we have dramatically
increased our pace of decision.
One area you could look at, if you were interested in that
is we have a very lengthy required process by statute. As I
described at the very beginning of the investigation, you can't
even go to liability, you have to go to apparent liability and
then the parties can respond. I don't think there's any
specific time limit on them, so we're pushing them to get
responses back. And then we move to decision and if the
Commission is going to take it, it's another level. But you
know, that's a lengthy process. And it's a little difficult for
me to generalize because some cases just are longer and more
substantive, but we're not satisfied with that and we're
looking within our own processes.
Mr. Stupak. So if we could expedite it, you would have no
objections there?
Mr. Powell. I wouldn't, as long as we really were given the
resources we would need to meet those expectations. It's only a
matter of how many people we can dedicate----
Mr. Stupak. Speaking of the resources, when a fine is paid,
is it paid to the FCC or DOJ or U.S. Treasury?
Mr. Powell. It's paid to the U.S. Treasury, sir.
Mr. Stupak. Do you get any kind of part of that back to
invest into the enforcement team?
Mr. Powell. No sir, we don't.
Mr. Stupak. Would that be something you'd be looking for?
Mr. Powell. I'd love it.
Mr. Stupak. Let me ask you this, there was some testimony
earlier about a $1.4 million settlement was the word used by
Viacom and the impression left me, it wasn't because of
indecent programming, it was sort of a settlement of some
issues. It's a heck of large settlement, $1.4 million, but Mr.
Karmazin said it really wasn't for indecent programming, but
for settlement of issues.
Is there ever--is that unusual to have a payment without
some kind of admission of wrong doing?
Mr. Powell. It's not unusual, but that's why he won't admit
it. As far as we're concerned, it's a settlement for indecent
conduct. That's what was--but this is an old, 1994, 1995.
Mr. Stupak. That's the point I was going to drive. It's not
that unusual. So how do you get broadcasters or I should say
stations like this to really acknowledge, hey, maybe there
really is something wrong.
It seemed like he didn't have any problem saying I paid
$1.4 million. He had problems saying because we had improper
programming. I mean if they don't appreciate it or understand
it, how are we ever going to clear this matter up?
Mr. Powell. Well, I would agree with that. Again, the
specifics of that case pre-date me, but sometimes when a party
settles, they refuse to admit liability. Sometimes they do. But
the vast majority of the cases we have, when we find, when we
affirmatively find liability, there's no escaping that that's
the resolution and many companies do admit their culpability
and pay the fines and those are more common than the kind of
settlements from 1995.
Mr. Stupak. The other concern I have is let's say like,
let's take the Super Bowl, CBS aired it. In my rural District,
it was probably carried on every CBS station there was.
Underneath the current legislation, the Upton legislation,
would CBS, the main CBS pay the fine or would each affiliate
that aired the program, would they also be required to pay a
fine?
Mr. Powell. The Commission's authority runs to licensees,
so the licensees are the actual station holders. Contrary to
popular opinion, we actually don't regular networks directly.
Mr. Stupak. Right.
Mr. Powell. Except in a very limited way. The reason we can
get CBS is because they own stations.
Mr. Stupak. Sure.
Mr. Powell. Very often, however, they have affiliate
contract relationships that sometimes causes them a lot of
trouble and they're willing to allow them to pay the cost of
the fine on behalf of the affiliate.
Mr. Stupak. But how do we protect the affiliates when you
run a show like this, like the Super Bowl or some big show?
Affiliates, from what I understand can always say no to the
local programmers. Local affiliates can only say no three times
and then CBS, NBC, whatever it is, can cut them off or break
that contract with them. How do the local people, especially
when we have more mergers and conglomerates can say no, this is
not the type of programming we want in our neck of the woods?
Mr. Powell. There are a couple of things I would suggest.
One, they do have the right to reject programming. That is
statutorily conferred on them and they have the right to
exercise it and do have the duty and obligation to exercise it.
Also, local stations----
Mr. Stupak. But that's limited though.
Mr. Powell. Well, this is the subject of some dispute.
There are allegations by some that certain contracts are trying
to prevent and limit them and that is what the subject of the
petition is.
But the other thing is, just like the networks have
announced this week, as have many stations, that you can time
delay live programming, affiliates or any distribution property
could time delay also. So in addition to rejecting the Super
Bowl which I doubt anybody would really want to do, you could
also, if it's a live event, have your own delay in addition to
whatever the network does that would allow you to prevent stuff
going over the air.
Mr. Stupak. I see. One more quick one. In your definition
of decency, does violence have any role in this decency
definition? Not necessarily yours, but I mean the Commission?
Mr. Powell. Putting ahead my opinion, no, it does not.
Indecency has developed as a term of art. It's defined, it's
first laid out in the statute, but there are 40 years of
precedent as to what it means and the Supreme Court sanction as
to what it means has never been read. The phrase ``indecency''
has never been read to include violence.
Mr. Stupak. Should you revisit that because the 1996 Act
says programming that contains sexual, violent or other
indecent material.
Mr. Powell. Certainly one could argue----
Mr. Stupak. Not us, but you, the Commission.
Mr. Powell. There has been an argument that we could try to
be cute and suggest that indecency also means gratuitous
violence. My suggestion would be even though we could consider
that, that you would be on sounder ground with any attempt to
prosecute violence with a statutory backdrop because the
Supreme Court and the first amendment jurisdiction tends to
view indecency as something of sexual and explicit nature. I
think if we suddenly lumped in violence, there would be some
difficult legal questions. I would hate that we would try to
pursue this only to have it all thrown back at us when--I think
Senator Hollings and others have recognized that in proposing
specific statutes that would laid that out.
Mr. Stupak. Thank you, and thank you, Mr. Chairman.
Mr. Upton. Mr. Walden.
Mr. Walden. Thank you very much, Mr. Chairman. Is there
anything that would prohibit you from doing a new rulemaking on
the issue of indecency, trying to clarify these various
definitions? We heard sort of a call for that from some that
say that this question in different decisions, take Bono, for
example. You've got staff saying no, if it's used as an
adjective it's one thing, if it's used over here it's another.
You all may reverse that. I mean do you have any plans to do a
rulemaking?
Mr. Powell. Let me suggest, I think the rulemaking
suggestion, not surprising from the industry, is a trap.
Mr. Walden. Why?
Mr. Powell. The definition of indecency has existed for 30,
40 years. It has been approved by the Court and it's been
prosecuted aggressively by the Commission. I don't think
there's any question about what the indecency standard is as to
the parties' right.
The second thing I would say is we can rule by
adjudication, meaning when there's a complaint and there is a
particular alleged indecent context, we can rule on that case
right then and there. I can do that a lot faster and a lot
swifter in adjudications than a lengthy rulemaking that could
easily take the better part of 8 months to a year and at least
in the area of indecency, I'm not sure I agree there's any
compelling reason to do so.
Mr. Walden. Let's take Janet Jackson. Was that profane,
indecent, obscene?
Mr. Powell. Well, that's what our investigation will
determine. But when we make a decision, we'll rule on that and
that decision will have the effect and it will be a lot quicker
and swifter and it will include forfeiture and I daresay
defensible in court, a lot more than a comprehensive rulemaking
on a subject that's been with us and has been approved and
established over many, many decades.
Mr. Walden. What would the public process be to try and
bring in others to comment then on defining sort of today's
standard? I mean you hear the revulsion that we represent of
what we're hearing and seeing on the air, cable, satellite, at
all, but it focuses on broadcast because that seems to be the
only place where it can go right now.
Mr. Powell. Well----
Mr. Walden. You get hundreds of thousands of complaints.
Mr. Powell. I think that's part of how we do it, meaning to
a great degree, we do hear from the public about the things
that they complain about. We take it in the form of formal
complaints, informal complaints, e-mails, letters----
Mr. Walden. Investigations.
Mr. Powell. Do the investigation.
Mr. Walden. How many have actually resulted in fines in the
last each year, how many?
Mr. Powell. In the last 3 years under our tenure, it's been
about $1.4 million in fines.
Mr. Walden. Fines?
Mr. Powell. Fines and forfeitures.
Mr. Walden. For indecency and obscenity?
Mr. Powell. Yes.
Mr. Walden. So not three that we heard about?
Mr. Powell. This is the dollar amount. The three that you
heard about----
Mr. Walden. I mean numbers of fines, not dollar amounts.
Mr. Powell. Yes, I don't have that right in front of me,
but I would say somewhere in the neighborhood of six or so per
year.
Mr. Walden. Six or so per year?
Mr. Powell. Yes.
Mr. Walden. And you've got 379 separate programs you're
investigating?
Mr. Powell. That's the number for last year.
Mr. Walden. I realize some roll off, some roll on. Well,
each year you're getting new ones and dispensing with----
Mr. Powell. This may help you and I may not have this
exactly right, but 375 for last year, 389 for the year before.
Then it starts to drop off. I think there have been--let's see,
I can give it to you precisely; 375, 2003; 389, 2002; 346,
2001; and in 2000, 111.
Mr. Walden. Okay, so 300 something a year, generally.
Mr. Powell. Yes, close to 400.
Mr. Walden. Of those 300 or so, how many each year then
have resulted in fines?
Mr. Powell. Well, they vary. But if I were to give you an
average, I'd say it averages 6 to 7 per year that go to fine or
forfeiture.
Mr. Walden. And the others have been rejected or are they
still in process?
Mr. Powell. Most of the others have been rejected. For the
most recent year of prosecutions where you've heard about the
14,000 complaints, all have been dealt with except for 30 that
remain and those 30 are still in prosecution.
Mr. Walden. Do you have the authority to do apply similar
standards to cable, satellite, TV and satellite radio?
Mr. Powell. No.
Mr. Walden. Is that an authority you'd like to have or is
that an authority we could give to you?
Mr. Powell. It is an authority you could give to us, yes.
Mr. Walden. Is it an authority you'd like to have?
Mr. Powell. I wouldn't mind having more authority at all.
Mr. Walden. You would have been the first one in government
I've ever heard if you were to have said it differently.
Mr. Powell. I don't think you've ever heard anything
different.
Mr. Walden. The final question I have relates to networks
and affiliates and I'm obviously sensitive to that. I've made
no secret about the fact that I an a licensee. So here I am at
your mercy, as it were, but do you differentiate between
programming that is created and distributed sort of in-house,
if you will, Clear Channel that has whatever that show was and
distributed among their stations, versus somebody that's buying
programming from a syndicator.
Mr. Powell. We do not distinguish between those two.
Mr. Walden. You do not distinguish.
Mr. Powell. No.
Mr. Walden. So if I'm the non-O & O affiliate that carried
the Super Bowl in small town America out there because I'm a
CBS affiliate, I'm going to hit equally as if I were Mel
Karmazin's station in New York City?
Mr. Powell. No, not necessarily. I think it's important----
Mr. Walden. You do distinguish between?
Mr. Powell. Where we can distinguish is in what penalty you
subscribe and to who.
Mr. Walden. That's what I was asking.
Mr. Powell. Substantively, we don't distinguish in terms of
whether you could be liable, but the benefit of having a
penalty phase is that the Commission enjoys discretion to
assign penalties based on culpability or other factors and
that's one of the reasons why I think Congress told us to first
have a Notice of Apparent Liability. It allows a local
broadcaster to come in and explain the circumstances that might
suggest that that liability should be rescinded or not apply to
them. And I think the Commission has a pretty good record of
being fair about that.
Mr. Walden. Do you go back to the provisions in the 1934
Act that suggest you should look at market size and ability to
pay and all of that? Or is that something that needs
clarification?
Mr. Powell. I'd like to look into that a little further for
you, but I do think all of those things would be legitimate
factors for consideration in determining penalties. That's why
not to draw a parallel to something like sentencing guidelines,
but the fact that the Commission has discretion when you're
talking about in the television area, almost 1400 unique
television stations in different markets in the country, you're
talking 13,600 radio stations. I think the Commission should
have some discretion to figure out whether the circumstances,
in fact, but someone who had a conscious intent, for example,
if CBS knew what they were doing----
Mr. Walden. Did it on purpose----
Mr. Powell. It's a very different case than someone who
just got caught up by it.
Mr. Walden. Thank you.
Mr. Upton. Mr. Dingell. You need to hit that mic button.
Mr. Dingell. Mr. Powell, you recognize action is
appropriate. Let me mention last year there were some 240,000
complaints received by the FCC against 375 shows. However, the
FCC issued only three NALs. Is that correct?
Mr. Powell. Yes, thus far.
Mr. Dingell. Now in 1995, FCC and CBS Radio now owned by
Viacom settled at least five NALs for indecency going back to
1990 for the sum of $1.7 million. Is that correct?
Mr. Powell. I believe so.
Mr. Dingell. On October 23, just 1 month later, CBS
broadcast additional sexual explicit programming for which it
received an NAL, is that correct?
Mr. Powell. I believe so.
Mr. Dingell. In fact, since the $1.7 million settlement,
Viacom has received NALs for at least nine broadcasts of
sexually explicit programming including a song describing a
father making his daughter perform oral sex on him and a show
that challenged listeners to have sex in St. Patrick's
Cathedral, Disney Store and FAO Schwartz. Is that correct?
Mr. Powell. Yes.
Mr. Dingell. In addition, isn't it true that Clear Channel
Communications, the largest station owner has received over 20
NALs since 1990 for broadcasting indecent material?
Mr. Powell. There is one case in which they had 20 NALs. I
don't know about the time period.
Mr. Dingell. Now, Mr. Chairman, I note that the answers to
the following questions are critical to how the committee will
consider legislation.
Since the FCC was last reauthorized in 1990--I'm going to
submit to you a letter asking how many NALs the FCC has issued
and to which companies.
How many of these NALs have been resolved and how long did
it take to resolve each one?
Which NALs resulted in fines for less than the amount of
the NAL and what was the amount in each case?
How many complaints does the Commission receive on a yearly
basis and how many shows per year has it been subject to
complaints?
I also am going to ask you how many times the FCC has
raised questions with regard to license renewals or how many
questions relative to revocation have you brought forward in
matters of this kind?
Now I understand you may not have the information available
to you at this particular time, so you will get the letter and
I ask, Mr. Chairman, that that letter be inserted in the record
at the appropriate place.
Mr. Powell, you've also said that the FCC's authority to
fine stations is not adequate and in your testimony you've
called for the Congress to increase it by at least tenfold. I
applaud that. That is correct, is it not?
Mr. Powell. Yes sir, it is.
Mr. Dingell. It is my understanding that the FCC has the
authority to fine violators up to $27,000 for each utterance of
content that violates FCC indecency rules. Is that correct?
Mr. Powell. Yes sir.
Mr. Dingell. Have you ever used that authority?
Mr. Powell. We have used the authority fine----
Mr. Dingell. For each utterance?
Mr. Powell. No, and let me explain.
Mr. Dingell. All right, now it is also my understanding
that the FCC has the authority to revoke a station's license
for violations of FCC's indecency rules. Is that correct?
Mr. Powell. Correct.
Mr. Dingell. And you have the authority to take, to
consider these questions if and when the question of license
renewal comes before the Commission. Is that right?
Mr. Powell. Correct.
Mr. Dingell. Have you ever done that?
Mr. Powell. No.
Mr. Dingell. Now is it fair to say that the broadcasters
are using public resources and that the right to use these
should be in full accord with the law and in compliance with
the rules and regulations?
Mr. Powell. Absolutely.
Mr. Dingell. That responsibility, Mr. Powell, belongs to
the Commission, does it not?
Mr. Powell. Absolutely.
Mr. Dingell. Now, Mr. Powell, in the speech to the Media
Institute in 1998 you criticized the heavy handed enforcement
action and you said and I quote now ``that the government''--
and here's the quote--``has been engaged for too long in wilful
denial in order to subvert the Constitution so that it can
impose its speech preferences on the public.''
Is that correct?
Mr. Powell. Yes, but it was not a speech about enforcement.
It was a speech about the first amendment.
Mr. Dingell. Now you went on to say in your first news
conference that you ``don't want the government to be my
nanny.'' Is that correct?
Mr. Powell. Yes, it is.
Mr. Dingell. Does this represent the philosophy of the FCC
with regard to questions related to indecency, tasteless
presentations on the airwaves, license renewals and the level
of penalties to be imposed upon violators of your rules with
regard to indecent and tasteless programming?
Mr. Powell. No, it doesn't and I'd like to submit to the
record quotes that make that clear from my position.
Mr. Dingell. Well, Mr. Powell, I'm not going to argue with
you about that. You said these things. I did not. I'm just
inquiring about what you meant when you said them and you have
13 seconds, according to the clock in which to respond.
Mr. Powell. Those were in a general speech about the first
amendment and the first amendment's limit on government
intrusion on content. But I've also said that when something is
well within the rights of government to regulate, and
consistent with the first amendment, that we have a duty to
enforce it effectively. How am I doing?
I want to be clear. I think that's right. The indecency
statute has been upheld as constitutional. It's been upheld
that our enforcement is consistent with the first amendment and
when it is, I think we have a duty and a responsibility to
enforce aggressively and effectively and we can do better; but
we're working really hard to continue to do that.
Mr. Dingell. Thank you, Mr. Powell. Thank you, Mr.
Chairman.
Mr. Upton. Mr. Stearns.
Mr. Stearns. Thank you, Mr. Chairman. Chairman Powell, my
question is for you. The FCC has the authority to fine
individuals, but as I understand, my knowledge is you have not
done so. And I guess the question is why? Is it something
that's just very legally, very difficult to do from a legal
standpoint to fine an individual or why hasn't an individual
been fined?
Mr. Powell. Candidly, it's easier to go after a licensee or
the programmer because the statute requires us to take several
additional steps required to an individual that would prolong
the case.
For example, in the case of Janet Jackson, if you tried to
go after her, the statute requires you have to first issue a
citation. You're not authorized to bring any kind of penalty or
forfeiture and the citation, that is a warning. And then if
that single individual does it a subsequent time, only then can
you bring forfeiture. So the Commission and I'm trying to speak
now for decades of Commissions, but I think they have not
generally pursued that route because they tend to pursue those
who are within direct jurisdictional responsibility.
Mr. Stearns. Because then you have to monitor----
Mr. Powell. Janet Jackson forever.
Mr. Stearns. For the next citation. And do you think a
citation and hearing is enough due process for the individual,
especially when it's been flagrant?
Mr. Powell. Well, I think within the context of the statue
we have, probably. But I think it would depend on what kind of
penalty we're talking about.
The other interesting thing that I think has never been
adjudicated is that the statute is a criminal statute and if
the Commission cites them for civil forfeiture, query what
would be the criminal due process rights associated if somebody
attempted to prosecute criminally, but 1464 is a criminal
statute in the United States.
Mr. Stearns. So you're telling me 1464 says if Janet
Jackson went out and subsequently did the same thing on the
same broadcasting network, then you could not issue a citation,
but you could actually criminally prosecute her?
Mr. Powell. We couldn't.
Mr. Stearns. No, but someone could?
Mr. Powell. This law is very----
Mr. Stearns. It sounds like you've never used it, so no one
knows exactly what it does because the counsel in the back----
Mr. Powell. There's a reason though. The legal prosecution
would have to be a prosecutor which we're not. I mean the
Department of Justice or the local----
Mr. Stearns. So what would you do?
Mr. Powell. If we were doing it, we could only impose civil
forfeitures and we couldn't do that unless we had first issued
citations.
Mr. Stearns. Okay, so you've issued a citation. She goes
out and does another example of the same thing in flagrant
disregard to you. What would you do then?
Mr. Powell. Well, then theoretically you could bring a
forfeiture against her like we do with the licensee and that's
never been done, so I'm not----
Mr. Stearns. Never been done and it would be a fine?
Mr. Powell. It would be a fine.
Mr. Stearns. And it would be a fine of $27,500 like it is
today?
Mr. Powell. I think so. They say yes.
Mr. Stearns. So it's the same as we do for the
broadcasters.
Mr. Powell. Same thing.
Mr. Stearns. Okay. What do you think of the idea of just
saying, just like you post a speed limit, and everybody knows
what the speed limit is, if you go beyond the speed limit,
bingo, they get a fine. You tell the individual entertainers,
look, this is the set up. It's prominently displayed in the
broadcasters, in the affiliates. It's known by everybody and
these are the rules. We're posting it just like a speed limit.
You disregard it. It's no more citation. No more subsequent.
We're are going to come right down and fine you $27,500. What's
wrong with that?
Mr. Powell. Nothing theoretically. You know the question is
it's easier to say 65 than exactly what the conduct which would
result in automatic penalty and that's always been the problem
with indecency that----
Mr. Stearns. You couldn't determine what she broke.
Mr. Powell. Well, I'm just suggesting the definitional
difficulty of how you specifically define absolutely clear
conduct that automatically results in a fine.
Mr. Stearns. But you have that same problem with the
citation.
Mr. Powell. Right, but what we do is we review these cases
on their facts in context, as opposed to have some flat, if
this happens you will immediately be fined, so you could say
well, if you do this, then you're immediately subject to a
proceeding which will determine whether you should be fined.
Mr. Stearns. Commissioner Martin, you mentioned a Family
Hour and the broadcasters' former family viewing policy as part
of its code of conduct for TV broadcasts. Can NAB reinstate
such a policy without running into the anti-trust arguments
that have plagued that policy since 1983?
Mr. Martin. Congressman, when the code of conduct was
struck down, it was based on anti-trust concerns in the
advertising side, so they didn't actually address the issues
related to the Family Hour. It was because of concerns about
anti-trust and what was going on in advertising.
There's actually an opinion that was issued by the
Department of Justice in the 1990's that said that they could
do so on some concerns related to family viewing, but I think
they could. There's also been legislation introduced on the
Senate side, Senator Brownback has introduced legislation in
the past to clarify that the broadcasters should be able to
engage in that kind of a code of conduct without triggering
those anti-trust concerns. But there's at least some people who
think that they're able to today, as related to the family hour
and content.
Mr. Stearns. Thank you, Mr. Chairman.
Mr. Upton. Mr. Green.
Mr. Green. Thank you, Mr. Chairman. I want to thank both
the Chairman and Commissioners for spending the afternoon with
us and the morning over in the Senate.
Obviously, this hit a nerve and being from Houston and
being at the Super Bowl and seeing the groundswell of publicity
on what happened, it took what I thought was a great football
game and for the next week we didn't know anything except what
happened at the halftime performance.
Let me--I have some questions because we're going to work
on amendments on the bill and I want to talk a little bit about
in following up on my colleague from Michigan, on local
stations and their control over network programming. There's a
lot of talk about who's responsible and did I hear you, Mr.
Chairman, say that the FCC has the authority over the local
stations, but not networks?
Mr. Powell. What I was trying to say is we have authority
over licensees and a network, if it had no stations it would be
a very different entity. We tend to be able to get at them
because they're license holders.
Mr. Green. That brings up the concern of if we have
stations that are maybe not owned by the network but also
members on the control on it and one of the reasons I've heard
that the FCC initially was hesitant to issue Notice of Apparent
Liability for fines to the NBC and affiliates because of the
Golden Globe incident because of the limited ability of
stations to edit the network feed. Is that correct?
Is that a correct statement that in that particular case
with liability for fines with NBC with the affiliates and not
with the network because they didn't have the ability to
control the programming?
Mr. Powell. The Bureau decision found no liability, so it
never got to the point of who would be responsible. The
Commission is currently considering possibly reversing that
decision and I suppose those questions will be part of whatever
it resolves. But I think that, to clarify, part of what you're
asking is true which is one of the greatest things that people
have complained about in the context of that performance was
that the precautions of time delay and the kinds of things that
a distributor can sometimes do were not in place.
Mr. Green. And I think the time delay on the Super Bowl
issue, but I guess going to the liability again, no affiliate
would not want to carry the Super Bowl.
Mr. Powell. Right.
Mr. Green. But they might want to be able to have the--
again, I don't know if local affiliates have the ability what
like networks have to have that delay and to blank out or
whatever.
Mr. Powell. I understand that they do. The real issue, I
think, for consideration is for really small broadcaster, it's
a pretty significant expense.
Mr. Green. We know that CBS, it's possible to edit both
the video and audio by networks which are responsible for
producing the program in the first place.
Does it make sense for networks to be the focus of the FCC
fines rather than local affiliates who most likely whether by
contract or maybe by technology are unable to alter a network
feed?
Mr. Powell. I think the Commission's position and its
record tends to be that it does focus most exclusively on the
network and its stations. We don't want and I'm not prepared to
say, we foreclose that you wouldn't also hold an affiliate
responsible.
Some of our recent fines are because things were done
locally by local affiliates. But you know, for example, in the
case of CBS and the Super Bowl, most of our efforts to date
have been focused very squarely at CBS and we'll see how the
ultimate resolution of that is.
But we like to maintain the view as an enforcer that no one
necessarily is beyond our reach because we think everyone has a
role in helping push back when this stuff happens, including
the local affiliate.
Mr. Green. And I agree. But again, you're looking for the
culpability and who has the ability to deal with it and
oftentimes an affiliate doesn't.
Commissioner Copps, have you noticed a change at the
Commission on this issue in the recent weeks? It just seems
like after starting on this legislation with the Chairman,
there's been so much on the indecency issue and it seems like
the FCC is recognizing there's a concern. I know you've been
concerned about it for a good period of time.
Mr. Copps. I really hope so. I think the initial statements
we heard today are positive, but I still have some concern. I
think the message that needs to go forth from this time and
place and that needs to go forth from the Commission is that we
are aggressively pursuing all of these other avenues and trying
to instill a little bit of respect in those who are purveying
this stuff on the airwaves.
I think we need to be looking aggressively and saying so
and have an item on profanity, looking at ads, looking at
making the consumer complaint process more user friendly, T-up
something on violence. Certainly, it's difficult, but I think
credible cases have been made that violence is every bit as
indecent as some of this salaciousness of sex that we see.
Sure license revocation hearings may be time consuming, but
let's accent the positive and let's do it and let's get on with
it.
I'm not even convinced and I say this only in a tentative
way, but I don't know that the networks are so far beyond our
reach as some would have us say. If you look at 503(b)(5) and
we're talking about you can find anyone if you have a citation
to go through that process, but it says if they own a license,
then you can go right after them. Well, can you make the case
that CBS owns a license so you can go directly after them? That
may be tentative, but it doesn't mean we can't consider it and
look at it and try to figure out what the law empowers us to
do. And that's the message that's got to go out. We have helped
create this culture in the media of no fear, no respect for the
authority of the FCC. So now we're trying to change that. The
only way we're going to change that is to really be aggressive
in all of this.
I think that's the message that I would want to convey.
Mr. Green. Thank you, Mr. Chairman. Thank you, panel.
Mr. Upton. Mr. Terry.
Mr. Terry. Thank you, Mr. Chairman. Chairman Powell, along
some of that same vein, it seems like common sense that if we
had more enforcement, more frequent enforcement instead of only
a few examples of fines, that we had a hundred, that would be a
deterrent in itself. Would you agree?
Mr. Powell. Sure, but it's a little too easy from my
perspective to simply count numbers without looking at specific
cases and say that if you have this many numbers you must not
be enforcing.
These are judgments made about specific programs and
specific fact patterns and we certainly could put them on the
table and debate whether when we dismissed one, one would have
agreed, but I think we've been clear that the Commission has
for the last several years, frankly, been increasing its
aggressiveness in enforcement and been increasing the fines,
increasing the way it counts them, raising its aggressiveness
in this. And I think we're not there yet, but I think we
definitely, this group is working very hard to be there.
Mr. Terry. Well, from what I heard today I think the entire
group is working toward that goal and I just think it's
intuitive that if you've only got a few examples of fines, no
matter what the specific nuances of each case, you know if
there's a lot of examples out there, I think they'd start
thinking well, geez, I need to be a little bit more careful in
what we do here.
But with that, let me ask, you've all endorsed the Upton-
Markey et al. bill, multiplying the current by a multiplier of
ten. Well, when we look at, talk about Comcast taking Disney,
Viacom, billion dollar companies, I mean $275,000 falls out of
their pocket walking to the elevator. Are we still talking
about something that's so de minimis that it wouldn't be a
deterrent even at ten times the current?
Mr. Powell. To be clear, my position has been at least ten
times, at least. I would leave to your judgment to take it as
high as you would feel comfortable with, we would use it, if
you do it. I think that particularly when you start to do
things like count utterances, $275,000 may be peanuts if that's
all it is to maybe a billion dollar company, but if something
were repetitive and there were multiple utterances that can
become serious money.
Mr. Terry. And there's no cap on those? I mean if you have
a 3-hour radio show----
Mr. Powell. You could rack up a lot of dollars.
Mr. Terry. A lot of utterances that could add up in some of
these 3-hour morning shows.
Mr. Powell. Particularly radio shows. You could be in----
Mr. Terry. If we're talking about some of the specific
utterances are the radio shows. Those just are way out----
Mr. Powell. It's interesting, until just I think last year,
the vast majority of our complaints for very, very long time
has been principally focused on radio. But I also think it's
important to remember we're trying through strong enforcement
and high finance, create a deterrent.
Mr. Terry. Yes. All of these things add into the totality.
I'm going to leave you alone and I want to talk to Mr.
Martin for a second.
You brought up something that I've been struggling with and
you mentioned with broadcast kind of in a race to the bottom
with cable and the competition with cable that cable television
is a little seedier, a little--maybe let's call it edgier and
that network tries to compete with that.
And I think that's true. I think they do try and compete
with that edginess. But frankly, I'm confused why. For example,
I just went to Nielsen ratings before the hearing today and
pulled off the top 10 shows for networks. CSI had 30 million
viewers. The top rated cable show that wasn't ESPN-related is
number 3 at Monk with 5,000, I'm sorry 5,500,000 viewers and
then tied at number 4, Sex and the City at 4.8. I don't
understand the philosophy in the networks that a program that's
going to get 30 million viewers has to try and compete and
outbeat a program that's going to get 4 million viewers.
Can you help me understand that?
Mr. Martin. Not completely and obviously I think it would
be better if the broadcasters were still focusing on those
viewers that they had, but I think that they have seen a
migration away from broadcast television. So while they have a
significant audience share, that audience share has been
diminishing each year. And this was recently, it was the first
time that all of the cable programming combined actually
achieved a greater audience share than the broadcast
programming combined.
And so it's that dynamic that they're seeing their audience
base slowly erode that is trying to--that they are trying to
recapture and that's why I think it's some of the race to the--
in that sense the race to the bottom, as you were describing.
Mr. Terry. Thank you.
Mr. Upton. Mr. Davis.
Mr. Davis. Thank you, Mr. Chairman. I'd like to ask whether
any of the Commissioners have a concern that the $3 million
maximum penalty under the proposed bill provides to you
sufficient authority to act as a deterrent.
Mr. Powell. I have to be candid and say that I wasn't,
until you just mentioned it, aware of the cap. It would be
something I would rather give more consideration.
Mr. Davis. Mr. Chairman, I stand corrected. There is no
maximum amount. So it's unlimited. It's just based on the
monetary amount per incident or utterance.
Are any of the Commissioners asking for additional
authority beyond what's proposed in the Upton-Markey Bill to
provide you sufficient authority to act as a deterrent?
Mr. Copps. I think we could be looking at some other
options as we go down the road. I'm very interested right now,
we're getting into the world of multicast and digital
television and the ability to multicast on many channels and
how those are going to be used in the public interest. That
goes to indecency, both to the bad programs but more than that
to the positive commitments that stations should make to carry
family oriented programming or children's oriented programming,
and how it's going to be done. We've got 217 stations in the
United States already multicasting which is unbelievable to me.
The whole area of what are the public interest obligations of
those broadcasters has gone unaddressed and I think we need to
address it now. It may not be in this particular bill we're
talking about here and this may be only tangentially related to
that, but I don't think it's entirely unrelated.
Mr. Davis. With respect to the issue of penalties,
Commissioner Copps, and again to any of the Commissioners, is
there anything specific, specific legislative authority you'd
like to ask us to at least consider providing to you?
Mr. Copps. Other than to say the more authority you can
give us, that's fine. I'd be happy to try to think about
additional ways we can do it, but if we're going to really use
this as a deterrent, and it's going to be effective, I think we
should include everything we possibly can.
Mr. Powell. I would like to consider it more, but I've
heard mention a number of times the concept that if you are a
repeat violator at some level that you would either get a
multiple of penalties or potentially revocation. I'm a little
unprepared to say I'm totally convinced of the necessity, but I
think that would be another thing worthy of some additional
consideration.
Mr. Copps. How about this one, some particular cases would
go in the first instance to a license revocation hearing?
Mr. Davis. So the Commission doesn't have the authority to
go to license revocation upon a first instance?
Mr. Copps. I think we have that authority, but I think it
also helps to motivate the Commission when Congress comes
behind it and encourages it to do what it may should be doing
in the first place.
Mr. Davis. So you'd like a nudge.
Mr. Copps. You bet, push us as hard as you can.
Mr. Adelstein. You might consider fine authority even
greater than ten times. I note that Janet Jackson's album, for
example, is at the very top of the charts and the profits are
enormous. I'm not saying that is or isn't why she did it, but
there can be enormous profits to be had and in order to have
deterrence, I don't think necessarily $275,000 is a sufficient
deterrent. It could be that the higher amount would be more
effective because these are multi-billion dollar companies and
the benefits could outweigh the costs and we have our authority
to lessen it in cases where we feel that it would be excessive.
Let's have a higher top amount and trust our discretion to try
to limit it in cases that are less egregious, but that would be
preferable to topping out in ways that aren't a sufficient
deterrent.
Ms. Abernathy. To the extent that we're just talking about
fines against broadcasters, I think what you're doing is headed
in the right direction. To the extent that we're discussing our
ability to go after violent programming or our ability to
regulate indecency or other kinds of programming for cable,
again, both those instances, there are significant legal issues
associated with them that would require some legislative
guidance from you first.
Mr. Davis. Would all of you like for the Commission to have
the authority to reach cable in terms of regulation of indecent
content?
Mr. Copps. Absolutely for me.
Mr. Davis. I think what we've heard today is a clear
consensus on the part of each of you to act more firmly and
aggressively with respect to repeat offenders. Would all of you
agree with that?
Mr. Powell. Yes.
Mr. Copps. Yes.
Mr. Davis. Mr. Chairman, there also seems to be consensus
about the need for the Commission to proceed in a more timely
fashion. I'd like to ask you today or supplement the record
with exactly what the Congress' responsibility is to enable you
to proceed in a more timely fashion with respect to these
enforcement proceedings.
Mr. Powell. Well, candidly, I think this is first and
foremost our responsibility in the management of the agency and
the management of its workload.
I think if we wanted to see a real order of magnitude
increase in speed of decision, there would be some
congressional issues that I think would be presented. No. 1,
it's just simply resources. I know chairmen complain about
their money all the time----
Mr. Davis. Mr. Chairman, let me interrupt you because I
don't know how generous the Chairman is going to be. If you
could provide us some particulars in writing, I think there
would be a lot of support for that.
Let me say as a Floridian, I think this isn't just true for
Florida, there's a growing amount of Spanish speaking and
listening radio and television. I understand the Commission
only has one attorney or personnel in the Enforcement Division
who is fluent in Spanish and while your Enforcement Division
thinks you could adequately handle right now, as you plan for
the future, Mr. Chairman, and see the growing amount of content
in this area, I'd like to ask you to advise at least me and
perhaps other members what resources you will need or will need
to start planning for so that you don't get behind the curve in
that as well.
Mr. Powell. Good point, yes.
Mr. Davis. Thank you, Mr. Chairman.
Mr. Upton. Mr. Pickering.
Mr. Pickering. Mr. Chairman, again, thank you for this
hearing and let me just follow up from the gentleman from
Florida's conversation because I really do want, as we go to
the subcommittee mark and as we go to the Full committee, to
get the legislation and the tools that you need in a way that
we can make this an effective enforcement piece of legislation
and it's something that we can bring consensus to.
Some of the concepts that have been discussed, three
strikes and you're off, as a way of giving the incentives. You
can debate whether financial deterrents actually work or are
actually significant. How do you fine smaller versus larger and
you get into problems with financial deterrents. But it seems
to me as a condition of renewing licenses if they know that
they're multiple offenders, repeat offenders, that they are
jeopardizing their very company asset, their economic worth
completely, that that would be the best deterrent that we could
ever have.
Is that something, three strikes and you're off, is that
something that the majority of the Commission would support and
let me just ask starting on one end going to the other?
Mr. Copps. I like three strikes you're out as long as it
doesn't get in the way of the Commission acting if there is a
particularly outrageous case. We should not create the
expectation that a station has three shots at this.
Mr. Adelstein. I would agree, Congressman, that revocation
is the ultimate sanction in that it would have an incredible
deterrent effect. I would note that we do have authority under
our current rules to take steps to do such a thing. We can do
that under our own authority, but we would welcome
congressional guidance on that matter.
Mr. Powell. I think I would agree. Although I'm always
hesitant without thinking through all of the implications. I
agree with Commissioner Adelstein that maybe this is something
that's possible, but that the Commission should consider with
the benefit of its tools to look at what would really be at
issue there.
The conception in and of itself is not bothersome, so is it
three in a year, five in a year, three over a period of what
and what kind of mitigating factors would be permissible
because I think once you set it in statutory law----
Mr. Pickering. I appreciate the need to be thoughtful and
flexible, but also to create a framework where I think that we
will--sometimes it's difficult to get corporate leaders'
attention. Sometimes it's difficult to get political leaders'
attention, but I think we've reached that critical, probably
what Secretary of State Powell would say, it's that tipping
point and a cultural----
Mr. Powell. He stole that from me.
Mr. Pickering. Yes. And I do think that we need both the
financial deterrents and through a condition of renewal, a
framework that we can have true teeth in enforcement and I just
want to go all the way down and get your all's input as well on
the same concept.
Ms. Abernathy. Absolutely. I support the ability to revoke
a license. I think it's the ultimate sanction and there has to
be a little bit of fear out there. The exact process, I'd want
to get more into the details, but we can do that today,
certainly it never hurts to have legislative imprimatur on it
also.
Mr. Martin. I would think the best way to approach it would
be staying with some number of multiple offenses and we'd have
to set it for a revocation hearing, but then the Commission
would still have some discretion, depending upon the facts of
the hearing that actually arose. And that actually might mean,
even if you had two, if there were even two instances of a
violation, you'd have to set it for hearing, that might be a
little more flexible than saying you have to take away the
license after three violations.
That might not take into account the third violation was
unintentional if it was a performer you had warned and had
gotten a promise, a contractual obligation that they wouldn't
do it and they did it anyway. That doesn't mean, I don't think
that ultimately we have to take some steps, but I think that
kind of flexibility might be what I might recommend.
Mr. Pickering. I understand that judges sometimes chaff at
mandatory sentencing and they want to have the flexibility of
good judgment. And so we want to give you that flexibility but
at the same time we want to have a very clear signal of
certainty that what we have allowed to evolve into what is
acceptable which is truly for the great vast majority of
Americans and American families unacceptable and crass and
crude and indecent and profane and violent and all of that,
that we do need to send a clear signal and set a clear certain
standard and make that part of their conditions for renewal.
So I look forward to working with the Commission on that
concept and creating a framework that gives you the flexibility
that you need, but also at the same time sets a very clear
standard.
The shot clock is another concept that's been discussed, to
resolve a complaint that's been filed within a time certain,
whether that is 6 months, a year or whatever that is, I would
like to have your all's input on what is a reasonable period of
time by which complaints should be addressed. I realize there
is a resource issue, possibly involved in this, and we need to
get your input on this.
The third thing and I know my time is running close, but
I'd like to get your input as you look at cable issues and
whether you need greater regulatory authority, I know that
there are constitutional and other issues that could make that
more problematic and difficult, but to what degree and I'd like
you all to comment, could we or should we require cable
companies to provide family tier programming or a la carte
programming or some type of package of programming that
families across this country would truly appreciate, demand and
want. I'd like to get your input on that.
Mr. Martin. On the first issue of a timeframe, I think that
that actually may be as critical as the authority to have three
strikes and you're out to make sure that we're dealing with the
many complaints that are pending.
I've in the past said that we should have an 8-month
timeframe, time deadline that we should go and set ourselves
and so I think that's the kind of timeframe that I think we
should be saying we should act on all complaints within.
And I think it's critical and maybe the most critical
aspect of this is to address cable in some way. I've put forth
several different options, whether it's family friendly tiers,
some kind of more of a choice for consumers to be able to say
they don't want to receive certain programming and have
programming not included in the package or applying some kind
of indecency restrictions with the same kind of standard to
cable, I think is critical.
And one of the things that is actually unexplored today is
that actually I think many of our indecency obligations already
apply to DBS. DBS is technically a radio, is already a radio
licensee and we are just not acting, we don't enforce them in
that manner and I think it would be somewhat more incongruous
if we applied them to DBS and not to cable, but I think
probably ultimately addressing cable may be one of the most
important things for us to do.
Ms. Abernathy. I guess my concern is I think we need
legislative help if we want to go after cable. I think it
absolutely makes sense. I was discussing with someone the fact
that there are many apartment buildings where that's all you
can get, so you don't even have the option of free over-the-
air, so it seems to me that given that most consumers don't
even know whether it's a free over-the-air or a cable channel
that they're watching, we should be trying to apply the same
rules and regulations, but we can't today without legislative
assistance.
As far as the shot clock in order to make sure that we
resolve these complaints expeditiously, you know, it all goes
to resources, as you said, but I do believe we have to do a
better job and I think all of us recognize that.
Mr. Powell. Yes sir, I'm not adverse to looking at ways to
provide affirmatively better packaging programs to people on
cable, but I also think it's really worthwhile and maybe
constitutionally compelled that you look at the possibilities
of rather than saying what you get, how do you empower somebody
to make sure what you don't get, that is, Commissioner
Adelstein has talked about it today. There are statutes, but
there could be better ways to make sure that you could block
programming on your cable channel that you didn't want to
receive, even though it was available.
Right now, technically that's supposed to be possible.
Cable, in contrast to broadcast, has a lot of technical
possibilities you could explore for empowering individuals and
parents that don't exist in broadcasting and certainly worth
exploring.
I say constitutional because it's important to remember all
of this gets ultimately measured, even your acts are going to
ultimately get measured by the first amendment standard and one
of the parts of that is that it has to be the least restrictive
means possible. So we've run into that before and I'd hate to
see us spend three or 4 years going down the wrong road to only
have it flap back in our lap because in the Playboy case the
Court said, ``Yes, the government has an interest in
restricting Playboy but there are less restrictive ways in the
ways they were employing.''
There are going to be a lot less restrictive possibilities
in cable than there are in broadcasting. Something worth
thinking about.
I definitely believe that the Commission ought to hold
itself to a high standard on shot clocks, but I would just
introduce for your consideration things, problems I have with
shot clocks. I've seen them before at the Commission, 90 days
for 271 approvals, other things. Sometimes I'm worried what you
do is if you really don't make sure the resources are there,
you put more pressure to get rid of complaints. I'm almost
worried that you can actually, that the perverse result is less
gets brought because you're still going to have to follow
certain basic investigatory and due process obligations in
order to prosecute somebody. And if it's Day 89 and you just
haven't gotten what you need, then I'm just worried it's going
to be this sort of classic bureaucratic pressure to dismiss it
or to punt it.
So if there were a clock, I do think you're talking orders
similar to what Commissioner Martin just said as opposed to
things like 90 days because I think with all candor it will be
another committee that decides whether we actually get the
money to do it and I can tell you with all certainty that if
you wanted 249,000 in a year done in 90 days it's not
physically possible without an equally committed order of
increase in resources.
Mr. Adelstein. I think we do need to explore all of these
options to determine how to help parents get control over what
happens on cable. I think that they feel that it's a little out
of control and their kids don't distinguish between channel 4
and channel 30. They don't know whether it's cable or otherwise
and we have very little control over what goes out over cable
currently. So we need to empower parents to help them.
I think one of the most frustrating things I have with
cable is that the current rules do provide that parents are
able to block a channel if they want to. As a matter of fact,
the Playboy decision that's been referred to limited the
ability of us, of Congress, as a matter of fact, or the FCC to
control cable precisely because cable allows its customer to
block a channel. And yet, I don't think most parents are aware
they can do that.
In the case of MTV, for example, a lot of people were
alarmed when that sort of MTV culture intruded into their
living rooms during the Super Bowl and they were alarmed by
what they saw. And they might think geez, I never thought about
it, but I don't want my kids watching that channel. They don't
realize that they have a right under the law and under our
rules to block that. And the cable industry needs to do more to
ensure that parents have ability to do that, that it's easier
for them, that it's transparent for them, that they know what
their rights are and that they can take advantage of them
easily.
Mr. Copps. Cable absolutely needs to be a part of any long-
term solution to this. It's become so pervasive in our homes
and so intertwined with broadcast. Most people get their
broadcast from cable television, so it needs to be included.
Now we may need some legislative help in that, but that
doesn't mean, I think, that there's nothing that we can be
doing right now or that cable should be flying blithely up
there saying oh, the Commission can't touch us, the Commission
can't touch us. They do use the airwaves. We do have a Supreme
Court decision that says there's a compelling government
interest to protect children against indecency on cable. Have
we found the least restrictive means to get there? No. Does
that mean we can't be looking for something? No. I don't think
it does. I think we need to be going down that road. I think
there are compelling government interests that would make that
desirable to do.
On the blocking of programs, that's fine, but you're still
making families pay, I think, for channels that they don't want
and that's why I'm more attracted to the idea of a family tier
type of system like Commissioner Martin has mentioned.
On the shot clock, I understand the difficulties with that,
but I think we ought to set ourselves a target of 90 days for a
first initial decision. I don't think that denies due process.
There may be times when we're utterly overwhelmed when that
doesn't work, but I think the world ought to be on notice and
the industry ought to be on notice that we have a time certain
in which we are attempting to wind these things up.
Mr. Upton. Mr. Rush.
Mr. Rush. Thank you, Mr. Chairman. Mr. Copps, in your
statement you correctly stated that excessive violence is ever
bit as indecent as anything else that is broadcast. In
addition, you stated that wanton violence, on the people's
airwaves have gone unaddressed too long in a quote. That said,
what can we do in the Congress, how can we help you to enforce
nonviolent programming.
Mr. Copps. I think there are a couple of options. No. 1,
you can bring statutory clarity to it by putting it into law
and making our attention to that mandatory. Short of that, I
think you could be encouraging us or instructing us to tee up
an item on this. We don't need a lot more studies. We've had 50
years of studies on this, Congress has been looking at this for
nearly half a century. We have two U.S. Surgeons General who
have reported on the link between violence on the media and
aggressive behavior in our kids, it's like 300 studies out
there. So we need to get on with it and tee up an item and get
a public record built so that we can proceed on this.
I know it's delicate. I know it's sensitive, but there is
violence on television that a kid should not be expected to see
and should not be available to them.
Mr. Rush. Also in your testimony you state that cable and
satellite should explore options such as offering family tier
channels and I think Mr. Martin also addressed that issue. Do
you believe that the route of legislation and regulation is too
long and it would be contested by the cable and satellite
industry and how can we compel the industries to do the right
thing absent legislation and regulation?
Mr. Copps. I don't know that absent strong direction you
can compel. We can certainly try to persuade. I talked in my
statement about trying to convene some kind of a broadcaster,
cable, satellite summit and I think there may be enough grass
roots sentiment in the United States right now and enough
concern about this where if such a summit gathered, that it
would propel it in the direction of doing something substantive
or moving in that direction, of doing something substantive.
Again, you can't use a summit like that for purposes of
letting people off the hook or coming up with some kind of a
pablum that doesn't really address the problem, but it seems to
me that that's the least that the industry could be doing and
if I was Eddie Fritts at the National Association of
Broadcasters or Robert Sachs at the National Cabel and
Telecommunications Association, I would be urging my guys to
get out and live up to their responsibilities. They used to
have, for broadcasters, a voluntary code of conduct. It was not
perfect. It was not a golden age of broadcasting, but at least
it was a credible effort to put some limitations on the
depiction of graphic sex, drug addiction, violence and it made
some positive contributions on children's programming and
things like that. That can help us get there. It doesn't
substitute for us doing our job. It doesn't substitute for
enforcing the law, but in some way, that the industry can step
up to the plate after hearing your concern today and hearing
your concern and say okay, we've heard it, we can help, we can
take some steps, let's get together and figure out what we can
do. Absent that, you really wonder if they've heard a thing.
Mr. Rush. Can you offer some suggestions then? We've talked
about the FCC. We've talked about the Congress and the
industry, what can the average citizen do? What can they do in
terms of helping to put pressure?
Mr. Copps. I think the average citizen has helped bring us
to where we are today. I think the average citizen has kind of
compelled the attention of the Federal Communications
Commission for the first time in many, many, many, many years
or even going farther back. I have a great trust in the average
citizen when he or she speaks out, and if given the facts I
hold to that quaint notion that the American people will
probably arrive at the conclusion of what is the right thing to
do for the country. I think millions of Americans have arrived
at the conclusion that the time is now to do something on
indecency and I'm looking to you and I'm looking even more at
us to do something about it.
So I think they've already done a lot. I think our leaders
also, like Brent Bozell and the Parents Television Council, Jim
Steyer, Common Sense Media, the list goes on and churches and
others who have been instrumental in this, not because they're
directing an orchestra, but because they're responsive to the
grass roots and they appreciate the sentiment that's out there
and how widespread it is in every nook and corner of this land.
Mr. Rush. I'm just a little concerned. I just think that
we're here primarily because of the sexual indecencies that
have occurred both at the Super Bowl and around other events
also and I'm afraid that we've missed or we're going to miss
the target in terms of violence which is to me just as obscene
as some of the provocative sexual matters that we've been
subjected to. So can you--do you have the same kind of
apprehensions about which way we're going and the focus on the
sexual indecencies that are occurring? Do you have the same
concern as it relates to violence?
Mr. Copps. Yes, I absolutely do and I think the American
people do too and I think, as I said earlier, I think the
excessive violence we see in the media is every bit as indecent
as the graphic sex that we've seen and that needs to be
tackled.
But to your other point, the future is now. If we're really
going to do this, this is the time. If we're really serious,
this is really the time to bring it home both legislatively and
in a regulatory fashion. We've got everybody's attention and
we've got support around the country and if we miss this
opportunity, I would be apprehensive. I don't think we will.
I'm optimistic. I think we have turned the corner in this, but
we've got to bring it home now.
Mr. Rush. Thank you.
Mr. Upton. Mr. Engel.
Mr. Engel. Thank you, Mr. Chairman and thank you to all the
Commissioners for testifying. I think if nothing else, you've
learned one thing today that the bad thing about being on the
first panel is you have to sit through everybody's opening
statements, but the bad thing about being on the second panel
is you have to sit here until 5:45 and miss your dinner.
So I'm going to try to be----
Mr. Upton. How about lunch?
Mr. Engel. What's that, Mr. Chairman?
A lot of the questions that I have have been touched on but
let me try just a couple. Several hours ago I asked Mr.
Karmazin what he thought we should all be doing. And he said
and I wrote it down that we in the Congress ought to urge the
FCC to have rulemaking on indecency. And I just wonder if any
of you would care to comment on his--I'm assuming you were here
when he said that. If not, I'm wondering if anyone would care
to comment on that.
Mr. Powell. I commented on that earlier. I'll be happy to
do so again. I would be very cautious about accepting that
invitation because it presumes that our indecency rules are not
clear and enforceable. The indecency definition that we employ
has been with us for virtually 30 or so years. It has been
specifically approved by the Supreme Court. It is a definition
that has passed constitutional muster. I think we believe that
we can forcefully prosecute against it. This Commission can
also make decisions on a case specific basis in rulemakings
without all of the extensive process associated with
rulemaking. If I did a rulemaking on indecency tomorrow it
would be a year in the making. I can rule on an indecency case
tomorrow and it will be just as effective as law as any rule.
The delicacy, and I think we all are honest and faithful
enough to understanding the parameters of the first amendment,
is that context can matter, specific facts can matter. Words
that we find offensive can be protected or if in the right
context acceptable. I think we can all agree violence in
Schindler's List can't be removed and it shouldn't somehow be
expunged from our society. So the idea that there's a one rule,
a rulemaking that will somehow pronounce for the country
clearer parameters than the ones we're using, I'm just quite a
bit suspect about. I think that that actually detracts us from
enforcement and adjudication which I think we're talking about
increasing aggressively. I think we'll make more progress that
way in the next couple of months rather than next year in a
rulemaking.
Mr. Copps. Can I add to that?
Mr. Engel. Yes, please.
Mr. Copps. I was really distressed by a little bit of the
presentation I heard earlier today about woe is me, if only we
knew what the standards of indecency were we could maybe do a
better job of cleaning up our act. If you look at some of these
transcripts and look at the WKRK-FM case in Detroit or the Opie
and Anthony or the list goes on, I don't think there's any
ambiguity or confusion or lack of understanding that these
things are contrary to the standards of the statute, so I think
the definition we have is workable, if we're resolute in trying
to see it through. If you want to conclude that three citations
out of 240,000 isn't very much and we need a new definition of
indecency, fine, but in the meantime I hope we wouldn't stop
enforcing the one that we have.
Mr. Adelstein. I would agree with my colleagues. I think
that this is not really a valid request. He says he wants
clarity on our rules. We say right in our regulations that
indecency is material that offends community standards for the
broadcast medium involving sexual and excretory activities and
organs. Now in the Detroit case, Infinity owns that station,
the transcript is one of the most disgusting things I've ever
seen. It combines sexual and excretory activities and why
hasn't CBS owned up to that? Why are they fighting that? Why
are they not saying we're wrong? Why do they say they don't
have any guidance? If that is the most extreme case and they
say we don't know what it means. I think they know what it
means. I think we know it when we see it and we saw it in that
case and if he doesn't know it in that case, then there's no
definition of indecency that he could possibly find acceptable.
Mr. Engel. Anybody else?
Ms. Abernathy. I think the only thing I'd add is if you
look at what this Commission has done to sort of rethink prior
precedent, we didn't need a rulemaking for that. So for
example, when Commissioner Martin and others discuss the per
utterance violation, we put that into an order. When
Commissioner Copps talked about license revocation and the need
to put them on notice, we did that in response to a complaint
and when we're talking about what specific words may or may not
be indecent, we're going to be dealing with that recently too.
So the beauty of the Notice of Apparent Liability procedure
is that we can immediately, as a Commission, reinterpret,
reapply our rules and put all the parties on notice immediately
that this is what we expect.
Mr. Engel. Thank you. Commissioner Martin?
Mr. Martin. I agree with my colleagues that I think that's
the--we can continue to proceed through the enforcement actions
that we have.
Mr. Engel. Chairman Powell, I'm told that when I left to go
to my other committee, by the way, to listen to the testimony
of Secretary Powell that you had said when Mr. Stupak asked the
question that you didn't believe that the FCC could on its own
add violence to the indecency standard. A lot of my colleagues
have talked about violence and obviously that's a major
concern.
I just want to make sure that I was told that that's what
you had said and I wanted just to make sure that that was what
you had said and I wanted to also ask your colleagues if they
would agree with what you purportedly said.
Mr. Powell. I would say this, I think it can be a matter of
debate. But first of all, I would absolutely associate myself
with the comments of Congressman Rush and others. I think
violence is a very significant problem. For example, today in
the Senate we were talking about little boys don't watch TV any
more. They play X-Box. You'll see it in Nielsen ratings. You
have a whole generation of young men who really have moved to
video games which I don't know if it's bad in and of itself,
but have you seen one of--Grand Theft Auto will put to shame
anything we're talking about on television.
So if we're serious about this, we can talk about broadcast
TV which certainly has a lot to do to improve itself, but it's
by no means the most serious in these things. And what I said
about violence is that it's unchartered territory. I've looked
at this very hard as a legal matter. I think we would be taking
a big risk if we thought the Commission will just suddenly
after 40 years of defining indecency say it also means
excessive violence which the Supreme Court has never said.
Indecency is a bit of a legal term of art. And I think that
if we were serious about it, we should go right to what we
think we need which is a legislative backdrop for that right
from the beginning as opposed to spending several years, I
think, probably putzing around with it, probably lose in court
and then it would be back to Congress anyway.
So my view is yes, the best course, if I were to recommend
one is that there would need to be a legislative statute to
give the Commission clear jurisdiction there.
Mr. Engel. Is there anyone who would disagree with that?
Mr. Copps. I would like to see us tee up an item on that
and develop a public record and see what the reaction is. We
know this is a huge issue. We know the American people are
concerned, same airwaves we're talking about. Credible
arguments have been made that you can include violence under
the indecency--let's have a record and look at it and if we
think we can do it then, fine, proceed. If the record says you
folks need legislative endorsement to do this, then come up and
tell you and we already have a record and I think we can
probably expedite a little bit.
Mr. Engel. Thank you. Thank you, Mr. Chairman.
Mr. Upton. I'm told Mr. Davis has one more question.
Mr. Davis. Thank you, Mr. Chairman, you are generous.
Chairman Powell, I thought I heard you say earlier that you
found little or any merit in the concept of the proposal from
Clear Channel and perhaps others to engage in some sort of
rulemaking or national rule on indecency or obscenity. Do I
understand that correct?
Mr. Powell. I was referring to the same thing I think we
just spoke with Mr. Engel about the idea of whether Mr.
Karmazin's suggestion that you need a rulemaking to clarify
indecency and my comments about I think that's a bit of a red
herring went to that, yes sir.
Mr. Davis. Thank you. And so my question was do any of the
other Commissioners have a different view as to whether that
idea or concept would have any merit as we try to meaningfully
tackle the issue here?
Mr. Adelstein. I would agree with the Chairman that it has
no merit. I think we have authority. We have clear authority.
We have a clear standard that's been developed over the years.
We have clear guidance. I believe and I voted that Viacom has
violated that. Thus far, they haven't agreed. But we tend to
address these on a case by case basis.
We have a standard, we're enforcing it now. We can send
strong signals that way. We can send a signal about the ``F-
word,'' for example, in the case on the Golden Globes and that
is the rule. There is the standard. Do you want to know what
the standard is? Look at what you did in Detroit. That's
unacceptable. Do you want to know what the standard is? Look at
what you did with Opie and Anthony. That is unacceptable.
That's the definition right there.
Mr. Powell. Could I add something, Congressman?
Mr. Davis. Yes sir.
Mr. Powell. It might be useful to you. The Commission in
the settlement that you've heard about in 1995, part of that
settlement including the Commission developing in 2001, it
issued indecency guidelines to broadcasters. While it's not a
rule per se, it's an effort to try to find examples of things
that the Commission has done in the past to help put you on
notice about what's reliable.
So I think the Commission has attempted to be responsive,
that broadcasters do have a right to have some understanding of
what's in the parameter, but we have consistently tried to do
that and I would agree with Commissioner Adelstein.
I think if you took us down the rat hole of go off for a
year and do rulemaking, we'd come back to the same place we are
right now, probably with the same definition and maybe be
accused in court that we can't enforce our current definition
because we've raised questions about its continuing vitality
and I just--I really recommend against it.
Mr. Martin. Mr. Congressman, I agree with my colleagues
that I don't think we need to have a proceeding at this time. I
think some of the comments that Clear Channel may have made in
the past about having a national, some kind of national
proceeding, they were also talking about having something that
said that everyone had to play by the same rules.
And I think that gets to some of the other discussion that
we've had today about making sure that the same kind of rules
apply to everybody. I think that may have been some of their
comments that I've seen publicly recently in response.
Mr. Davis. Same kind of rules in terms of all the providers
being----
Mr. Martin. Exactly, exactly. For example, some of the very
radio personalities that we find in the past in the radio
context have now moved to satellite radio, for example, and I
think that's raising some of the same kind of concerns about
making sure that everybody is playing by the same rules.
Mr. Davis. Thank you. Thank you, Mr. Chairman.
Mr. Upton. Well, thank you all. Chairman Powell, your dad
said if we finish by six he'd give you a ride home.
I don't know. I want to compliment all of you and my
colleagues as well on both sides of the aisle. I just would
like to say a couple of things in closing.
Commissioner Adelstein, I want to particularly commend you
for your statement with regard to the case with Infinity. If we
don't know that that's gross and indecent, where is the
standard? I think every one of you share that thought as well
as the members of this subcommittee.
I would just note that in, as I prepared a letter to one of
America's largest newspapers on this very issue, I couldn't
even reference some of the descriptions of the case because
they're so gross and indecent that I just struck it. I just
couldn't go that far. And I would hope that we would see some
movement in that case or very soon, particularly with regard to
getting to the final conclusion in terms of the fine.
I want to say from start to finish, the last 8 hours we
have had a very good hearing. I'm going to ask that the record
stay open for members' questions that they may not have been
able to ask this morning and this afternoon and this evening
and for those members that were not able to be here because of
other events and I would appreciate the answers of all of you,
as well as the earlier panel.
I also want to thank you for your positive words and your
statements and your remarks today with regard to H.R. 3717, a
bill that I would note that on the last series of votes, a
number of members came to me on the floor and asked that I put
their name as a co-sponsor. So we're over a hundred, that is
for sure.
It's our desire to move this legislation as quickly as we
can. We've had some early discussions with the Senate, but I
know that the Administration supports it. My leadership
supports it. Obviously, the majority of this subcommittee
supports it in terms of co-sponsorship. We are intending to
mark it up tomorrow morning in subcommittee and I know that Joe
Barton, the next chairman of this full committee is very
supportive and will be moving it as soon as he can.
As I indicated this morning, I made a commitment to my good
friend Mr. Dingell that we'll have another hearing with those
that were not here today, but those that were invited today and
we will hear them after the break.
Again, I appreciate your time. I look forward to working
with all of you as we look to make this even a better bill.
[Whereupon, at 6:01 p.m., the hearing was concluded.]
[Additional material submitted for the record follows:]

Response for the Record of Hon. Michael K. Powell, Chairman, Federal
Communications Commission

Question 1. What current authority does the FCC possess to demand
or seize records, tapes, transcripts or the like from broadcast
licensees in furtherance of investigations of complaints for violating
18 U.S.C. 1464?
Response: The FCC has broad authority to obtain such material from
broadcasters under investigation. See e.g., 47 U.S.C. 308(b), 403,
409. The FCC typically obtains such materials through a letter of
inquiry, but has authority to issue subpoenas if necessary.
Question 2. Would requiring broadcast licensees to retain tapes or
transcripts of their programming for a relatively short period of time
assist the Commission in its investigations of Section 1464 complaints?
If Congress were to require such record keeping for purposes of FCC
investigations of indecency complaints, what would be an appropriate
amount of time to require the keeping of such tapes or transcripts by
broadcast licensees?
Response: Requiring broadcast licensees to retain tapes or
transcripts of their programming would assist the Commission in our
Section 1464 investigations. Commission staff is currently working on a
proposal for such a requirement. We think an appropriate amount of time
for retention would be six months after the broadcast. Complaints are
not always filed immediately after a broadcast and a six-month period
would ensure that broadcast licensees still have the material at the
time an FCC investigation commences. Should Congress enact a six month
deadline for the FCC to act on complaints, this period could be
shorter.
Question 3. What is the Commission's policy and case precedent
concerning the issue of nudity or partial nudity on broadcast
television, for both live and non-live, scripted programming?
Response: The Commission defines indecency as ``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.'' Industry
Guidance on the Commission's Case Law Interpreting 18 U.S.C. 1464 and
Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd 7999
(2001). Indecency determinations involve two distinct determinations.
First, the material alleged to be indecent must fall within the subject
matter scope of the indecency definition--i.e., the material must
describe or depict sexual or excretory organs or activities. Second,
the material must be patently offensive as measured by contemporary
community standards for the broadcast medium. Indecency Policy
Statement, 16 FCC Rcd at 8002. In evaluating the second prong, the
Commission considers three factors: (1) whether the material is graphic
or explicit; (2) whether the material dwells on sexual or excretory
activities or organs; and (3) whether the material is used to pander,
titillate or for shock value.
In evaluating whether material is indecent, including material
containing nudity, the Commission looks at the context of the specific
material broadcast. The Commission has stated previously that, ``nudity
itself is not per se indecent.'' WPBN/WTOM License Subsidiary, Inc.,
Memorandum Opinion and Order, 15 FCC Rcd 1838 (2000). In WPBN/WTOM, the
Commission denied a complaint alleging that full frontal nudity
contained in the network presentation of Schindler's List was
actionably indecent because the material broadcast depicted a
historical view of World War II and wartime atrocities which, viewed in
that context, was not presented in a pandering, titillating or vulgar
manner or in any way that would be considered patently offensive.
The Commission has, in another case, proposed enforcement action
where such nudity was fleeting. In a recent Notice of Apparent
Liability the Commission proposed a $27,500 forfeiture against a
broadcast station for airing an interview during a live news program in
which one of the interviewees briefly exposed his genitals. In so
ruling, the Commission held that the exposure, although fleeting, was
in its overall context intended to pander, titillate and shock and,
therefore, was patently offensive and apparently indecent. Young
Broadcasting of San Francisco, Inc., Notice of Apparent Liability, FCC
04-16 (rel. Jan. 27, 2004). The licensee filed a response to the NAL on
February 26, 2004.
Question 4. How many complaints has the FCC received in the past
five (5) years concerning nudity or partial nudity on broadcast
television and how many individual programs did these complaints
encompass? Please list the number of complaints and programs with their
corresponding year from 1999-2003.
See Exhibit 1.
Question 5. How many proceedings has the FCC opened in the past
five (5) years in response to complaints concerning nudity or partial
nudity on broadcast television? How many complaints on this subject
have been formally dismissed by the FCC with notice given to
complainants? How many Notices of Apparent Liability or Forfeiture
Orders has the FCC issued in response to such complaints?
See Exhibit 1.
Question 6. Has the FCC received any complaints about a commercial
during the 2004 NFL Super Bowl for an episode of the CBS sitcom ``Two
and a Half Men'' depicting the partially nude buttocks of a woman while
a pre-teenage boy looked on? If so, how many complaints have been
received by the FCC? Has the FCC opened an investigation into this
matter? Is this matter included in the FCC's investigation of the
programming broadcast before, during, and after the Super Bowl?
As of March 2, 2004, the FCC received 11 complaints about the above
commercial. The FCC is reviewing this commercial as part of its ongoing
investigation of the Super Bowl broadcast.Exhibit 1

Nudity-Related Indecency Complaints \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
Number of Investigations Number of Such Notices of
Number of Programs Commenced for Complaints Apparent
Complaints \2\ (Episodes) Such Programs Dismissed/Denied Liability
\3\ \4\ Issued
--------------------------------------------------------------------------------------------------------------------------------------------------------
2004.......................................................... 530,830 \5\ 3 1 0 0
2003.......................................................... 41,706 \5\ 20 \7\ 4 2 0
2002.......................................................... 12,906 \8\ 21 9 12,873 1 \9\
2001.......................................................... 7 7 1 7 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Reliable statistics are unavailable for 1999 and 2000. We also note that no forfeiture orders have been issued in any of these matters.
\2\ We have included complaints alleging nudity that has been pixilated or otherwise obscured.
\3\ This column reflects complaint proceedings in which Letters of Inquiry were issued.
\4\ In some cases in which we received multiple complaints about the same program, we issued a single dismissal or denial to the lead complainant.
\5\ This number reflects 530,828 complaints regarding the recent Super Bowl broadcast.
\6\ This figure reflects 41,529 complaints regarding the February 25, 2003 episode of ``NYPD Blue'' and 159 complaints regarding the April 7, 2003
episode of ``Married By America.''
\7\ Some complaints from 2003 are still being reviewed for possible investigation or dismissal/denial.
\8\ This figure reflects 12,856 complaints regarding ``Girl Next Door: Playboy Centerfold.''
\9\ The NAL for this complaint was issued in January, 2004; it is the Young Broadcasting case mentioned in response to question 3 above.

______

THE BEST OF THE BEST
EXAMPLES OF LOCALISM AND INDEPENDENCE AT INFINITY RADIO STATIONS
LOCAL AND INDEPENDENT MUSIC: INFINITY AIRS LOCAL, UNSIGNED AND
INDEPENDENT LABEL ARTISTS

Atlanta
WZGC

Each week on Sunday night WZGC airs a legendary program called
``The Dunhams.'' The Dunhams is an hour-long show, beginning at 9:00
pm, which features live local performances from local and independent
artists such as Stealth Trucks Band, moe., Disco Biscuits, Vicki Salz,
and Sloppy Joe, among very many others. Most of the artists played on
The Dunhams get little to no radio airplay otherwise and many are local
bands.
Austin

KKMJ

KKMJ-FM (Majic 95.5) airs ``The Majic of Austin Music Show'' every
Sunday Night. This is a two-hour slot where 90% of the music played is
by local artists on small or no labels. For example, on a recent
program local singer Ashley Culler visited the station to give a live
performance. Majic also features numerous local artists during the
``Majic of Christmas'' programming, where for over a month Majic plays
only Christmas music. Many cuts are from local artists and groups,
while some are from local church choirs.

Baltimore
WXYV

WXYV's usual menu of talk programming is an unusual but fruitful
haven for local, unsigned and independent label artists. Each week, the
``Out to Lunch'' program features live performances by local, unsigned
artists. The program's duration is one hour, but often extends an
additional half-hour, based upon listener reaction to, and input about,
the performances.

Boston
WBCN-FM

WBCN has played independent/small label music since its inception
in 1968 and continues to do so. When Viacom purchased CBS/Infinity,
WBCN's programming was not altered. Currently, the Transplants
(Hellcat), Interpol (Matador), and Hot Hot Heat (Sub Pop) are in
rotation. Other bands being played on labels that are not part of the
``big five'' labels include Creed (Wind-Up), Moby (V2), and the White
Stripes (V2).
Further, WBCN's weekly new music show on Sunday nights, ``Nocturnal
Emissions,'' features two hours of brand new music with over 90% from
small or independent labels. This show has been in existence since the
late seventies.
Nocturnal Emissions is followed by ``Boston Emissions,'' two hours
of new Boston music selected from tapes, records and discs. A number of
these bands do not even have local record labels.
WBCN also features a ``Local Band of the Month,'' which the station
features on air and on its Web site. The station Web site provides
exposure for the local artist by providing an opportunity for listeners
to listen to a song from the artist any time, posting a biography of
the artist, and posting a link to the artist's Web site for more
information. The station also features a ``Local Song of the Week'' and
an ``Indie Song of the Week'' on air and on its Web site.
In addition, for the past 24 years, WBCN has presented an annual
Battle of the Bands called the ``WBCN Rock `n' Roll Rumble.'' The Rock
`n' Roll Rumble displays the talents of 24 local bands over nine nights
at a local venue. To participate in the Rumble a band cannot have a
major label deal.

Charlotte
WPEG

WPEG has a specialty show entitled ``Future Flavas'' that
spotlights local talent and new artists. It's a weekly one-hour show
that has been on the air for about a year. Future Flavas has
spotlighted local artists such as Inifinique, Low Key, and Supastition
just to name a few. Infinique has since signed a record deal with Rico
Wade of the Dungeon Family which is based out of Atlanta. Each week
WPEG gets over 20 CDs submitted by up-and-coming artists. A team of
street team listeners review the products and present the best 5 for
that week to be showcased on the air. Future Flavas is an important
show to up-and-coming artists because it gives them an avenue to reach
the station's listeners and help further their careers.

Chicago
WXRT-FM

WXRT has a weekly show featuring the music critics of the Chicago
Tribune and Sun-Times. This live, local show discusses the local music
scene. It often plays new music from local bands.
In addition, WXRT features a local music show each Sunday night
(``Local Anesthetic''--see below). Since 1991 WXRT has been airing
``Local Anesthetic.'' It currently airs weekly in prime time (Sundays
at 7:30pm). 90% of the labels aired on ``Local Anesthetic'' are
``local'' and 80% of artists who receive airplay on Local Anesthetic
are unsigned in any form. There is also a short-form feature version of
the program, ``Anesthetic Capsules,'' which airs six times per week in
various P.M. dayparts (12Noon-12Mid). Here is the description from the
station's monthly Program Calendar (press release):

Local Anesthetic with Richard Milne. Chicago's longest-running
radio show devoted to local artists and music; offering a
weekly overview of the Chicago music community, featuring
exclusive interviews and live performances, as well as artist
profiles of the area's top musicians and leading cultural
figures.
The station also airs a weekly show entitled ``The Big Beat,''
featuring esoteric music from domestic and international artists rarely
heard on American radio.
In addition, WXRT airs a weekly locally produced concert show
featuring music recorded at local Chicago venues.

Cincinnati
WAQZ

WAQZ airs a show on Sunday Nights from 8pm-10pm called ``Miss
Sally's Playhouse.'' This is a ``Newest in New Rock'' feature that
plays small label, indie, and unsigned bands. The station has two
features on its website that promote these bands as well, called the
``What's Next'' page and the ``Miss Sally's Play list'' page. The
latter Web page has links to the bands played on the air on the show.

Columbus
WAZU

This year WAZU hosted ``Cringefest,'' which is a local hard rock
festival featuring 18-20 local rock bands. The event draws around 1300-
1500 people in the station's demo. Eighteen local active rock bands
performed.

Dallas
KOAI-FM

KOAI's annual Jazz festival gives the stage to many local artists,
including Joseph Vincelli, FACES and Joe McBride. The station heavily
promotes their appearance on air, and gives their songs airplay
exposure.
KOAI is the presenting sponsor for ``Smooth Jazz Music in the
Atrium'' every Thursday evening at the Dallas Museum of Art featuring
local smooth jazz artists. KOAI provides on air mentions and website
exposure for the featured local talents each week. The station also
heavily promotes their appearance on air, and gives their songs airplay
exposure.
KOAI is the presenting sponsor for ``Smooth Jazz Sunday Brunch''
every Sunday afternoon at the Dallas Museum of Art featuring local
smooth jazz artists. The station heavily promotes their appearance on
air, and gives their songs airplay exposure.
KOAI is the presenting sponsor for ``Smooth Jazz Fridays'' every
Friday evening at the Renaissance Worthington Hotel in Fort Worth
featuring local smooth jazz artists. The station heavily promotes their
appearance on air, and gives their songs airplay exposure.
KOAI has provided ``top of page'' website exposure for local
talents.

Denver
KDJM

KDJM hosts an annual Battle of the Bands competition among local
unsigned bands. The winning band becomes KDJM's ``house band'' and
performs at station events over the next year.

Houston
KILT-FM

KILT-FM airs the ``Roadhouse'' show on Saturday nights from 7p-
12midnight featuring music from local Texas artists such as Roger
Creager, Robert Earl Keen, Pat Green and Cory Morrow. KILT-FM provides
email blasts to over 30,000 listeners and website exposure of when and
where the musicians (major and local) will be playing and how listeners
can purchase their music.

Kansas City
KMXV

KMXV hosted a 16-week promotion at Raoul's Velet Room in Overland
Park, KS called ``The Search for Kansas City's Best Band.'' The winning
band opened at the station's annual Red, White and Boom concert in June
at Verizon Wireless Amphitheatre.

Los Angeles
KROQ-FM

KROQ has a demonstrated commitment to supporting small/independent
label music with shows such as:

``Jed the Fish's Catch of the Day''--Every day at 4:40pm Jed
features an artist or song that is not on KROQ yet. Quite often
he plays things that are not even signed to a label.
Jason Bentley--Electronic show every Saturday night from
midnight-3am. Jason exposes music from primarily independent
labels such as Ministry of Sound, Perfecto, K7, Pitch Black,
and Forensic.
Rodney on the ROQ--Independent Music show every Sunday night
from midnight-3am. For the last 15 years Rodney has done his
show focusing on new bands on small and independent labels such
as Saddle Creek, Creation Records, Nitro, and Food Records.
Mixmaster Mike--Mix show every Friday night from 10-11pm.
Mike exposes the newest in hip hop and rock music quite often
playing ``white label'' cuts and many independent releases.

Memphis
WMFS

93X Locals Only, Memphis radio's only local music spotlight,
features three different songs from three local artists every
weeknight.
In addition, certain local bands warrant regular airplay rotation
on 93X. Examples include artists that later secured major label deals
including Dust for Life (Wind Up), Saliva (Island/Def Jam) and Breaking
Point (Wind Up).
WMFS's Annual Christmas show, 93Xmas, is a two night event with the
first night dedicated exclusively to local bands. This year's event
(7th annual) expanded to a three-night event with two nights of local
music.
Other regular WMFS events throughout the year that spotlight local
talent include Dingo Fest, Budweiser True Music Live, Locals Only Live
at Hard Rock Cafe, Memphis in May Locals Only Stage and major label
talent showcases.

Philadelphia
WYSP

WYSP airs ``Loud and Local'' a one-hour program every week at 10pm
on Sunday nights. The show features bands and artists that are
exclusively from the Philadelphia area. Bands like Sinch, CKY, Familiar
48, Liquid Gang, Sound Of Urchin, Tidewater Grain and Silvertide among
others, have been featured first on Loud and Local have gone on to
major label record deals. The show is hosted by Tommy Conwell, who was
also a local rock star who went on to national fame. Tommy's connection
to the bands in the area and the community gives the station a
connection to the local scene that no other station in the city can
match. Most recently, bands that have been featured this year on Loud
and Local such as Octane and 13 Even have had successful record
releases and headlining shows at the Trocadero and the TLA, two venues
often reserved for national acts. Although the music from these bands
has been featured on local shows on other stations, only the WYSP and
Loud and Local were invited to these shows to introduce the bands on
stage. Any station can play local bands, but WYSP's Loud and Local
takes the next step to actually support local bands.
WYSP is the only station in Philadelphia to put local, unsigned
acts into regular rotation on the station. Most recently, for example,
the station has put the local band Octane into regular rotation, and
continues to support the band both with airplay and promotional
support, as well as helping the band by utilizing industry connections.
Since June, WYSP has played Octane's single ``I For One''' over 400
times. WYSP helped Octane establish management, enabled the band to use
famed producer Phil Nicolo to produce their album and have promoted the
band by putting them on the bill with several national acts, such as
Mudvayne and Poison. The effect of WYSP's support has been incredible.
The band's album, which was released on September 16th, sold over 1000
copies in its first week, while selling out the TLA for their own
headlining show on the day of the record's release.
Exposed is a one-hour program aired weekly on WYSP on Sunday nights
at 9pm. The show focuses on new music, often times on very small
labels, and often times on no label at all. Just this year, Exposed has
featured unsigned acts Bombchild (CA), and My Downfall (Scranton, PA).
Also, Exposed has featured several acts on small labels, such as The
Fire Theft, Shadow's Fall, Godhead, and Murder One.

Phoenix
KZON-FM
KZON broadcasts a daily feature showcasing local talent and invites
unsigned local artists to the station to play on air as part of a show
called ``The Local Zone,'' which airs from 8PM-midnight on Sundays.
The station also includes local artists in its regular playlist,
and at least one credits the station with providing the exposure
necessary to get signed:
[The Daylytes] have also garnered the attention of the
independent label ``Knot Known Records.'' Label President,
Chris Richardson heard the Daylytes being played on Arizona's
leading rock radio station, 101.5 KZON, during DJ Tracy Lea's
midday show. He immediately set about making contact with the
band's management and Knot Known have since teamed up with the
band to release ``SPIN'', and are helping the Daylytes to
realize their potential. www.daylytes.com/band/index.php.
The station also puts out an annual compilation CD to showcase
local artists called the ``Local Zone Compilation.'' The station has
also partnered with a weekly publication, ``The New Times'' on a local
music showcase that attracts large crowds. The most recent event drew
more than 15,000 people.

Portland
KLTH
KLTH sponsors ``Museum After Hours'' each week from October through
April at the Portland Art Museum. Each week, a different local artist
plays live at Museum After Hours, and KLTH supports each week's event
with at least $6,000 in promotional support. These on-air promos, which
air in all dayparts, include examples of the music performed by the
local artists appearing at Museum After Hours.
KINK-FM
KINK plays many local/independent artists as part of its regular
and special programming.
In addition, KINK features three programs made up primarily of
small and independent artists:

``Sunday Night Blues'' (Sunday, 7-10 PM),
``Lights Out'' (Sunday-Thursday, 10PM-midnight), and
``Acoustic Sunrise'' (Sunday, 7-10AM).
KINK also airs a daily weekday feature at 9PM called the ``Local
Music Spotlight.'' The station picks a song by a local artist and the
jock talks about the artist, the CD, and airs the song.
Regarding local and unsigned artists, KINK has a feature that runs
weekday evenings called ``Local Music Spotlight,'' which features local
Northwest artists, mostly unsigned. The show gets highlighted
throughout the day on KINK in its regular programming, as well as on
its website. KINK announces a run-down of local musicians playing in
clubs daily at 6:20 p.m. In addition, the station sponsors a series of
concerts called ``Rising Star Showcase,'' in which unsigned and newly
signed artists play a concert for $1.02.

Rochester
WCMF
The ``Radio Free Wease Musical Styles'' program airs each Saturday
morning from 10am-12n. This program features relatively obscure and
unrecognized artists and material from independent/small labels.
Local musicians and groups are regularly featured on the ``Radio
Free Wease'' morning program. Appearances include interviews as well as
performances.
``Homegrown'', a weekly 2-hour program that features local music
exclusively, has aired continuously on WCMF since 1970. Few of these
bands have any type of commercial releases of any kind.
WCMF promotes live local performances at Rochester area nightclubs
on a daily basis.

Sacramento
KXOA-FM
KXOA has promoted many unsigned local bands over the past few
years. Every year, KXOA has a ``Club Concert Series'' that features not
only established bands but up and coming unsigned local acts. These
bands, like ``The Atomic Punks'', ``Deconstruct'', ``Barking at
Flies'', ``Larger Than Life'', ``Larissa Brisky'', ``Soul Taco'', and
others have received promotional campaigns on-air in connection with
either the ``Club Concert Series'', or as local opening acts for major
shows starring nationally signed bands at one of Sacramento's major
venues.
KXOA also held a ``battle of the bands'' series with the local
unsigned band winner getting to open for a major concert-in this event
the winner opened for a Journey concert. In addition, KXOA assisted in
getting unsigned local band ``Deconstruct'' local promotion as they
opened for a major concert event, headlining established acts including
Iron Maiden, Dio and Motorhead. KXOA plans to run a similar promotion
this next summer.

San Francisco
KITS-FM
KITS has a history of airing local musicians and unsigned artists.
Aaron Axelson, the station's music director, is responsible for the
playing and the subsequent signing of dozens of local bands. Examples
include Papa Roach, Greenday, Third Eye Blind and Rancid just to name a
few. All got their start with heavy airplay on KITS, many before they
had much more than a test pressing. That tradition continues today with
KITS breaking AFI and The Donnas in the last 12 months alone.
KITS also promotes these local artists by creating local lounge
showcases that get bands in front of thousands of people. The station's
goal is to have at least four local lounge showcases per year. The
station also attaches local band involvement to just about every show
it produces.
Recently the station had a ``Locals-Only'' music weekend where it
showcased 12 Bay Area local bands on the air in a heavy rotation. This
included artist interviews and magazine-style ``info blasts.''
Examples of local/independent music on KITS also include the ``11
o-clock Rewind,'' which runs Monday through Friday. This is a flashback
show that highlights the music that was popular in San Francisco over
the past 16 years. A quarter of the titles in this program were only
played in San Francisco.
Another example is a weekly show called ``Fast Forward.'' This
program runs every Wednesday at 4 PM. Locally hosted by KITS's
personality, Jared, this one-hour program provides an opportunity for
local record company representatives, San Francisco publication
writers, band managers and regular listeners the opportunity to bring
in music they like and play it on the air. The three guests and the
moderator discuss and rank the selections that are heard. Over a third
of the selections on the show are from local bands and a quarter of the
music is from bands and artists who have no label.
KITS also airs two weekend programs that garner much listener
interest and showcase music and content that is not avidly being
promoted:

``Subsonic'' is KITS's weekly electronica program. This Saturday 10PM
to 4AM program features cutting edge electronic and dance music
catered to San Francisco's rich electronic community.
``Sound Check'' is KITS's weekly two-hour new music program that
features much new music both local and international in
offering. Again, many of the selections come from the unsigned
artists or artists on small labels.

KLLC-FM
KLLC features a monthly Emerging Artist Showcase program. The
station solicits tapes from Bay Area musicians then selected national
and local artists are invited to play live at Bay Area nightclubs. The
program is free for local musicians to participate and for listeners to
attend the shows.
KLLC replaced its Saturday night nationally syndicated program with
the locally produced ``Thump Radio'' program. The five-hour show
features local and national mix DJ's.
Each Sunday from 9AM to 2PM, KLLC broadcasts a specialty ``Chill''
music program. The show plays down tempo music from local, national,
and international artists. The program is designed to play songs and
artists rarely heard on commercial radio. Small and independent record
labels have their music featured on a weekly basis and they include Sub
Pop, Skint, ESL and Minty Fresh.
The KLLC Morning Show regularly talks about the local live music
scene and once per week features a song from a local artist during the
``Pick of the Week.'' Local bands that have been featured include AFI,
Los Mocosas, The Pleased, One Man Army, Imperial Teen, The Dwarves,
Divit, The Roofies, and The Transplants.

Seattle
KMPS
KMPS-FM airs a regular feature during its morning show called
``Music From Our Own Backyard,'' which features Seattle-area musicians.
A recent ``Music From Our Own Backyard'' show featured local country
musician Myron Thomas Kline and R & B band Bump Kitchen. Bump Kitchen
posted the following on its Web site, www.bumpkitchen.com: ``Bump
Kitchen would like to thank everyone at KMPS 94.1 for playing our song,
``Big Ol' Bones''! When we checked out our guestbook we were blown away
at all the entries from people who heard us on KMPS!''
KMPS takes music calls and music service from all of the
Independent Labels. Artists from independent labels were part of the
station's program ``5 O'Clock Test Track'' on which the station airs
new music. Many of the songs were also added to regular airplay due to
popularity with the audience.

Washington, D.C.
WPGC-FM
Each summer WPGC holds ``Streetjams'' weekly around the DC area. In
conjunction with area police departments and local community leaders,
the station shuts down a street, erects a stage and brings out its
promotional and broadcast vehicles. WPGC then brings local talent to
perform, broadcasts live and has community and church leaders present
to speak to the neighborhoods about empowerment and peace on the
streets. These are free and open to everyone and been very successful.
The station has done these every summer for the past 12 years.
WPGC-FM has a Sunday evening show that has aired for 13 years,
called ``DC Homejams''. It is a 30-minute program where the station
features local artists exclusively. This program, hosted by DJ Flexx,
has given airtime to many groups who would normally never have a chance
to be on a major market radio station. One of the station's biggest
discoveries was a local group called ``Shai''. The group gave the
station a demo tape, which it played on the air. The response from
listeners was strong so the station gave the song a high rotation and
the group was signed to MCA records. The song the station played, ``If
I Ever Fall In Love Again'' went on to be a national hit!
On Friday nights, the station's night show, the Hometeam has a show
called, ``Friday Night Mic Fight'' where local rap artists come on the
show and do a freestyle rap of their music. The weekly winner stays on
to take on a challenger the next week. It is another way to expose
local talent and give them publicity.
WPGC-FM recently held a contest to find the next ``dj/mixer'' for
the station. The winner received a shift on WPGC. To win, they had to
be from the DC/Baltimore area and had to send the station a demo tape
of their work. The winner is now handling a weekend shift on the
station.

WHFS-FM
WHFS has a long tradition of strong support for local artists and
bands, epitomized by its annual ``Big Break'' competition, a month-long
talent competition that gives local, unsigned bands exposure and
airplay on WHFS. Bands submit material and perform live for the
opportunity to be one of the featured acts at the HFStival. WHFS has
conducted this contest since 1998, and devoted a substantial amount of
airtime recruiting local artists to participate in this massive talent
search. Finalists receive extensive promotion, publicity and exposure
on WHFS. A panel of music industry executives and WHFS personnel have
acted as judges and chosen the most talented local artists to receive
prizes that have included recording studio time, a slot on the Main
Stage at the HFStival, slots on the ``Locals Only'' stage at HFStival,
and airplay on WHFS. Several of the station's local acts have
subsequently been signed to recording contracts as a direct result of
their heightened profile during this contest, including Jimmie's
Chicken Shack, Good Charlotte, SR-71, O.A.R., Sev and many others.
``Now Hear This'' is a long-standing Sunday night program on WHFS
that airs mostly independent and unsigned bands. The nature of the
program favors an artists' first release rather than their later
projects. Artists sometimes ``break'' on this program and then get
airplay on the rest of WHFS.

West Palm
WPBZ
In March of 2003 WPBZ-FM began airing Buzz Junior, a weekly two-
hour show featuring the music of up and coming independent bands as
well as local bands and area musicians. The show airs Sundays from 10pm
to 12 midnight and plays a wide mix of music from Indy labels artists
such as ``The Fire Theft'' on Rykodisc, ``Hot Hot Heat'' (Sub Pop),
``Mando Diao'' on Mute Records in addition to local bands like as
Legends of Rodeo, Boxelder, Darwin's Waiting Room and Ashley Red to
name a few. In short more than 75% of the programming on Buzz Junior is
derived from bands that are not signed by a major record label.
Aside from Buzz Junior, WPBZ-FM has supported local music by
holding five Buzz Battle of the Bands competitions in 2003. The last
three competitions select local bands to play the ``local'' stage at
the station's annual concert event, Buzz Bake Sale 2003, which was held
on Saturday December 6th at Sound Advice Amphitheatre in West Palm
Beach. The estimated crowd for this event is 15,000.
WPBZ also supports local music through its website:
www.buzz103.com. On it the station features a ``local band of the
week'' section where listeners and web goers can sample and/or download
music. Each Friday WPBZ-FM's morning show features a segment called
``Live and Local Fridays'' where a ``local band'' is invited into the
studio to perform live on air. This has been an ongoing morning show
segment for two years during the fall and spring ratings periods.

LOCAL INVOLVEMENT:
INFINITY STATIONS ARE INVOLVED WITH THEIR COMMUNITIES AND CHARITABLE
CAUSES

Boston
WBCN-FM
For the past 9 years WBCN has been putting together the River Rave
concert, which is held in the spring. Over 20-plus bands participate in
the all-day event and portions of the proceeds are donated to the
charities the station has selected as benefactors of the rave. Over the
last 9 years the station has donated hundreds of thousands of dollars
to these charities. Charities involved over the years have been The
Surfrider Foundation, Metro West Humane Society, Save the Music,
Community Servings, Stop Handgun Violence, MassMic, LifeBeat, The
Jordan Boys and Girls Club of Chelsea, The Dana-Farber Roni Sunshine
Fund and more.
For the past 7 years WBCN has been putting together its X-Mas Rave
concert, which is held in the winter. The concert consists of over 20
bands playing in different bar locations all over Boston. All proceeds
generated for this concert are distributed to charities the station has
selected as benefactors of the concert. Over the past 7 years WBCN has
donated over hundreds of thousands of dollars to these charities.
Charities that have been involved over the years are Stop Handgun
Violence, the Dana-Farber Roni Sunshine Fund, The Mark Sandman Music
Education Fund, Conservation Law Foundation, Boston Living Center,
Margaret Fuller House and more.
For over 29 years WBCN has held their annual ``Rock n Roll Up Your
Sleeve'' Blood Drive in July making significant contributions to the
Region's volunteer blood donor program for the American Red Cross. WBCN
sets-up stands and holds live broadcasts from 4 different locations
around Boston. Prizes are given away to everyone that participates in
the blood drive as well. It is the largest blood drive promotion in
Massachusetts.
WBCN is responsible for setting up The Roni Sunshine Fund at the
Dana-Farber Cancer Institute. The fund was set up in memory of the
station's co-worker, Roni Sunshine. As a result of WBCN's efforts, the
Fund continues to make an extraordinary impact on the lives of women
fighting breast and gynecologic cancers at the Institute.

WBZ

Every year for more than 25 years, WBZ proudly teams with WBZ-TV to
promote and hold a joint telethon/radiothon to benefit Children's
Hospital of Boston. In 2003, WBZ held the radiothon on December 14 and
WBZ's on-air talent participated as hosts of the December 16 telethon.
The station promoted the event on air for several weeks. Altogether the
event raised 3.1 million dollars for Children's Hospital.

WBMX

The single biggest commitment WBMX has made toward helping the
community is the ``Mix Cares For Kids Radiothon,'' which WBMX staged in
2003 on July 25th & 26th. The two-day broadcast brought the station
talent live from the local Children's Hospital, with a mix of
interviews and songs integrated with stories of families helped by
Children's Hospital, and a call to action to donate money. The station
fundraiser raised over $460,000 during the broadcast.
WBMX is also a major supporter of the ``Susan G. Komen Race for the
Cure Boston'' benefiting breast cancer research each September. In
conjunction with the race, WBMX has produced four (4) ``Live from the
Mix Lounge'' CDs, with the net proceeds benefiting the Race for the
Cure, as well as the Dana Farber Cancer institute in Boston. Typically,
each CD has raised between $40,000--$100,000 for the two charities.
In addition, the station has utilized its annual holiday concert
``Mix 98-5 Holiday Hoedown'' as an opportunity to collect toys for the
New England Home for Little Wanderers. Dating back to 1799, the mission
of the Home is to ensure the healthy development of children at risk,
their families and communities through an integrated system of
prevention, advocacy, research and direct services.

Buffalo
WJYE
WJYE has been awarded the ``Media Award'' from the local chapter of
the Leukemia and Lymphoma Society three years running for the Leukemia
Society's ``Light The Night Walk,'' which brings more than 3,500
walkers every year to Buffalo's historic Delaware Park.
WJYE this year partnered with Hospice for their Playhouse Project,
featuring miniature homes that families toured, and then purchased
through auction, as well as Hospice's 5k Walk. The monies raised
through both events combined totaled $500,000 to benefit Hospice.

CLUSTER

The Infinity Buffalo cluster conducted a RadioThon with Children's
Miracle Network raising $50,000 to benefit Buffalo's Women's and
Children's Hospital.
For the last four years Infinity Buffalo as a cluster held a
holiday lights event in Buffalo's Delaware Park from the week prior to
Thanksgiving through Christmas. The event was called Lights In The Park
with a portion of the proceeds going to the United Way of Buffalo and
Erie County. The contribution to the United Way totaled over $200,000.
The Buffalo cluster this fall is, for the second consecutive year,
doing remote broadcasts, and hosting events to raise money for the
Buffalo City Mission. Last year with the help of Infinity Buffalo, the
City Mission raised 1.3 million dollars.

Charlotte
WPEG
WPEG has served its community with over 3.5 million dollars in
donations, partnerships, and sponsorships over the past 10 years. In
just this past year alone, WPEG has been a part of the following:

January 2003 WPEG-FM sponsored the annual United Negro College Fund
Telethon at the First Union Atrium in Charlotte. The live
broadcast efforts raised a total of over $350,000 for the area
Historical Black Colleges and Universities.
Also in January 2003 WPEG-FM sponsored the Annual Martin Luther King
Jr. Prayer Breakfast at First Union Atrium in Charlotte. More
than 850 attended.
February 2003 Tone-X & Fly-Ty, members of the Breakfast Brothers
Morning Show, sponsored ``Boys To Men'' an outing for African-
American boys. The day included a limousine ride, lunch,
shopping and a one-on-one conversation with a member of the
morning show. The goal was for morning show personalities to
bond with a young black male and teach him responsibility and
respect.
March 2003 WPEG-FM News Director Sheila Stewart spearheaded a Step
Show Competition co-sponsored by Charlotte Mecklenberg Schools.
The show featured 15 area high schools. More than 1500 attended
the event at the Grady Cole Center in Charlotte. The event
raised enough funds for nine scholarships.
April 2003 WPEG-FM co-sponsored the Syphilis Elimination Campaign
with the Charlotte Health Department to raise awareness about
the disease.
May 2003 Janine Davis co-host of the Breakfast Brothers Morning Show,
collected new and used prom dresses for young ladies who were
unable to afford a dress of their own. Davis collected more
than 250 gowns. The event was held at the Afro-American Culture
Center.
August 2003, WPEG-FM co-sponsored a Back To School Drive for Kids,
hosted by evening air personality No-Limit Larry at Eastland
Mall. WPEG collected school supplies and donated them to the
Charlotte-Mecklenburg school system.
September 2003, WPEG-FM co-sponsored the Annual ``Guess Who's Coming
to Dinner'' Program for the Metrolina Aids Project to help fund
AIDS research and counseling. More than $150,000 was raised.
October 2003, WPEG-FM sponsored the Susan Komen Annual Race for the
Cure. The event raised more than $800,000. The event serves as
an annual fundraiser in the fight against breast cancer.
November 2003, WPEG-FM worked closely with the Charlotte NAACP,
Charlotte Chapter Black Political Caucus Banquet and the
Hispanic Voter Coalition to encourage minorities to vote in the
November 4th elections.

WSOC

Following is a representative list of WSOC Community Service
Projects during 2003:
January 22, 2003: Rockin' Country Christmas Show at Dale Earnhardt,
Inc., WSOC sold over 500 tickets to this event and its ``Loyal
Listeners'' attended the show that featured Andy Griggs and Steve Holy.
This event raised over $13,500 and benefited the Juvenile Diabetes
Research Foundation and the Dale Earnhardt Foundation.
The Juvenile Diabetes Foundation--WSOC's Jeff Roper from the Jeff
Roper Morning Show was the Celebrity Co-chair and he and WSOC helped
the JDRF raise over 1 million dollars this year during their Walk to
Cure Juvenile Diabetes, which was held at Paramount's Carowinds on
Saturday, March 29th.
WSOC partnered with Outback Steakhouse to raise over $5,000 to
benefit the Tim Hayes Fund, a local EMT who lost his legs in January
while helping another injured motorist. WSOC also formed a ``WSOC FM
103 Good Neighbor Fund'', in February in which the station partnered
with area Wachovia Banks and encouraged the station's ``Loyal
Listeners'' to contribute to this fund and in turn, the station gave to
a local charity or organization in need of financial assistance. The
amount of money raised for this fund was over $500.00, so WSOC donated
the money to the Kannapolis, NC Non-denominational church, who gave the
money to help some of the 700 Pillowtex workers who were laid off due
to the company folding.
On April 22nd, WSOC hosted the Tim Hayes Golf Tournament that also
helped raise money for the Tim Hayes Foundation, with all proceeds
benefiting Tim Hayes, the Charlotte CMT who lost his legs while helping
another injured citizen. The combination of money collected during this
golf tournament and through the WSOC FM 103/Outback Steakhouse
Fundraiser, enabled Tim to receive two prosthetic legs, which will
contribute to him walking again someday soon!
WSOC was the selected host and official sponsor of the Charlotte
Firefighters annual fundraiser. This year's event was held at the
Cricket Arena and featured Country Music Artist, Ricky Van Shelton. The
event raised over $150,000 for Charlotte area firefighters.
WSOC was once again chosen as the official sponsor and presenting
Media partner to participate in the Harris Teeter Race Fest held on May
19th at the Charlotte Knights Stadium, in Rock Hill, SC. This event
featured an autograph session with NASCAR Busch Series and Winston Cup
Series Drivers, a silent auction featuring lots of sheet metal and
autographed NASCAR memorabilia. The event benefited Motor Racing
Outreach and raised over $450,000.
WSOC partnered with area Charlotte-Mecklenburg Humane Society and
conducted a Poker Run on August 16th which raised over $250,000 to help
unwanted animals in the community.
WSOC partnered and supported National Readers Day on November 13th.
Several on-air personalities took time out of their schedules to read
to students at the Balls Creek Elementary School in Newton, NC.

Chicago
WUSN-FM
WUSN conducts a radiothon for St Jude's Children's cancer research
each year during the weekend before Christmas and raises over $1
million in pledges. In 2003, the radiothon collected more than $1.3
million, the largest amount in the radiothon's history.

Dallas
KRLD(AM)
KRLD has a proud history of supporting local charities and
community organizations, the arts and economic development efforts. In
1993, KRLD received the NAB's Crystal Award, which is presented to one
station across the nation each year in recognition of its community
service efforts
Here are just a few of the highlights of KRLD's involvement:
Local Charities--2003 marked the 25th anniversary of KRLD's
Christmas is for Caring charity drive, benefiting people with severe
developmental disabilities at the Denton State School. In addition to
providing two gifts for each of these less fortunate citizens each
year, this program has raised millions of dollars for the facility.
Among other things, these monies have been used to build a custom
wheelchair workshop (and hundreds of wheelchairs) and to refurbish the
outdated medical facilities at the school, including the purchase of
much-needed diagnostic equipment.
August will mark the fourth annual ``KRLD Restaurant Week,''
benefiting the North Texas Food Bank and the Lena Pope Home for
children. Modeled after a similar program in New York, KRLD recruits
local restaurants to provide a 3-course Prix Fixe meal at a discounted
price with $6 from each meal donated to the charities. More than
$100,000 has been raised through this effort.
Community Organizations--KRLD has been a longtime partner with the
Greater Dallas Chamber of Commerce, supporting their varied efforts
across the area. Some of the specific initiatives KRLD supports include
``BusinessPlace,'' the largest chamber-sponsored business-to-business
trade show in the country and the annual Women's Business Conference.
KRLD also participates in various efforts of the Fort Worth and Hurst-
Euless-Bedford Chambers.
For the second consecutive year, KRLD will be a host organization
for Junior Achievement of Dallas's ``Job Shadow Day.'' This is an
opportunity for local high school students to spend a day in a business
environment, learning about the careers available in that organization.
KRLD hosts 14 students each year. KRLD also supports Junior
Achievement's annual ``Business Hall of Fame'' fundraiser and charity
golf tournament.

Detroit
WKRK
WKRK is involved in its community and supports numerous local and
national charities in various ways, including:

Conducts Bob Bauer's Marathon for Meals, one of the longest-running
charitable initiatives in Metro Detroit, this event feeds
thousands of need local Detroiters. Bob has been the driving
force behind his ``Marathon for Meals'' food drive and 2003
will be the 19th year of this incredible initiative. Each year
in December, Bob lives in a trailer at the corner of 13th and
Woodward collecting food for The Detroit Hunger Coalition.
Raised over $40,000 to help Pat and Ethel Hawley, an elderly couple
from Harland, MI, rebuild their home, which was destroyed by a
tornado.
Organized a charity paintball game to benefit the family of Michael
Scanlon, a slain Detroit Police Officer. Scanlon was killed in
the line of duty and left behind a wife and two very young
children. Several hundred listeners participated.
Launched a fundraiser for Ms. Chiquita Washington who lost her 11
year old honor roll student son in a drive-by shooting and then
suffered a heart attack the following day.

Fresno
KSKS
KSKS sponsors an annual KIDS Radiothon benefiting the Children's
Hospital of Central California. The 2003 event raised more than
$465,300. As part of the Radiothon, KSKS recruited more than 1,300
listeners to act as ``change bandits'' who collected $150,000. Because
of these phenomenal results, KSKS was selected to represent central
California at the national Children's Miracle Network Conference where
it was given an award for setting a North American Record.

Hartford
WTIC-FM
WTIC is involved in its community and supports numerous local and
national charities in various ways, including:

WTIC-FM's morning personality founded the ``We Are the Children''
charity which provides an annual Christmas Day celebration for
more than 1,400 underprivileged children, including food,
entertainment and presents.
WTIC-FM also conducted a 28-hour radiothon and benefit dinner with
members of the cast from ``The Sopranos'' that raised more than
$90,000 for the ``We Are the Children'' charity.
WTIC-FM conducts an annual ``All Star Christmas'' event with tickets
to the show given for free in exchange for toy donations.
WTIC-FM constructed eight traveling ``Walls of Support'' billboards
and took them to twenty-two different locations to be signed by
listeners to show their support for U.S. military troops and
then delivered them to the Connecticut National Guard to
display for troops as they returned home.
WTIC-FM has annually produced an ``Acoustic Cafe CD'' generating more
than $50,000 for the Hartford Wolf Pack Foundation, an umbrella
charity for 100 local children's charities.

Houston
KILT-FM
KILT makes every effort to support charitable organizations in many
ways. This effort has not gone unnoticed! In August 2003, KILT won the
Bonner McClain Award for Community Service from the Texas Association
of Broadcasters.
In 2003, the station supported the following causes:

Rodeo Houston 2003 The Houston Livestock Show and Rodeo is an
entertainment and educational charity, which benefits the youth
of Texas. Since 1957, more than 18,000 students throughout
Texas have received educational assistance from the show,
totaling more than $85 million. HSL&R events include BBQ-Cook-
Off, Go Texan Weekend, Trail rides, the Rodeo Parade,
International Days, Rodeo Run, the Horse Show, an all-star
concert line-up and much more! KILT donated more than $695,150
in promotional time for this event. In addition, the station
contributed sponsorship dollars and provided personalities and
live broadcasts at the event.
KILT-FM City-Wide Fireworks Spectacular--In 2003, KILT-FM helped 30
Houston area communities celebrate the 4th of July in-style.
KILT-FM provided a custom soundtrack for each community, filled
with a variety of patriotic favorites. The station also
provided directions to each fireworks celebration, fireworks
safety tips and facts about America's History on www.KILT.com.
KILT provided on air promotional support for this event and the
fireworks simulcast for these events on 100.3 KILT.
Joe Nichols Benefit Concert for Save the Music--KILT completely
produced the Joe Nichols Benefit Concert that raised money for
Save the Music. 100.3 KILT secured the artist, produced the
event, ran promotional announcements and featured it on the
KILT website.
Fort Bend County Cook-off, Parade and Fair in Rosenberg, TX. The
proceeds help support local youth and benefiting education.
KILT-FM was an official sponsor of the fair and rodeo,
providing promotional airtime, live broadcasts, a website
feature and an on-site promotional staff.
Brazoria County Fair in Angleton, TX. Known for its old-fashioned
fair atmosphere and traditional fair entertainment such as
carnival rides, rodeo, concessions and agricultural displays.
The fair benefits various local non-profit organizations in and
around Angleton. KILT-FM is an official sponsor of the fair,
providing promotional airtime, live broadcasts, a website
feature and an on-site promotional staff.
Bob Tallman's Pasture Pool Classic--KILT-FM sponsored this golf
tournament, which benefited The Pediatric Programs at M. D.
Anderson Cancer Center and the Justin Cowboy Crisis Fund. KILT
provided promotional airtime in support of this event.
Wings Over Houston--The Wings Over Houston Air Show--Scholarship
Program is intended to assist and reward students who have
demonstrated academic potential, leadership and extracurricular
involvement. KILT-FM was an official sponsor for the Wings Over
Houston Festival. The station provided on-air promos, website
promotion and inclusion in listener newsletters and Promotions
staff on-site.
Bike Drop--Each year, KILT-FM partners with the Houston Police
Department for the ``Blue Santa Bike Drop.'' Donations from the
Blue Santa Bike Drop provided underprivileged children with a
new bike for Christmas. KILT-FM provided on-air promos, website
promotion, inclusion in the listener newsletter, a full
promotions staff, donation incentives, on-air personalities and
all the equipment necessary to make this event a success!

Los Angeles
KRTH-FM
K-EARTH 101 answered the emergency call from the U.S. Marines for
help with the 2003 Toys For Tots Holiday Toy Drive. Because of the war,
Marine staffing and budgets were taxed and this year's campaign was in
jeopardy of having the lowest donation response in ten years.
Therefore, the Marines were in danger of not having the toys to fill
the wish lists of thousands of Southern California children. The
Stations response was affirmative and immediate. Within 24 hours of the
request from the Marines for help, the station moved into action with
hourly appeals to K-EARTH Listeners that ran through the weekend,
soliciting support for the drive. The station also served as an
official drop-off site with a collection bin prominently placed in its
lobby and the station also plugged drop-off sites at two different Toys
``R'' US locations, on the air as well as on the station's website.
Station listeners responded famously! By Monday the station had
collected hundreds of toys for this effort including books, which the
Marines informed us are always in short supply because they are rarely
donated. A children's book author heard the appeals by K-EARTH 101
Morning Man, Gary Bryant, and came in with scores of her newest book.
She made an appearance on the station's Public Affairs Program, ``It's
Happening,'' on Sunday morning. She discussed the campaign and her
donation with the station's Public Affairs Director, Vivian Porter, who
made an additional appeal to the station's listeners for donations.
The KRTH ``Care For Kids'' Radiothons have raised nearly
$1,000,000, benefiting the LAC/USC Pediatric Pavilion and a number of
other children's organizations.

KNX(AM)

KNX has a long and award-winning history of providing various types
of assistance to local and charitable groups for more than 30 years. It
has been the game plan of the KNX community services department to seek
out local groups and to offer a wide range of assistance aimed at
improving the lives of listeners. KNX has been recognized repeatedly
for its outreach and community service, even being singled out by
President Clinton in a speech at the Radio and Records Convention.
Here's part of the KNX story.
KNX teamed up with the Rescue Mission Alliance of the San Fernando
Valley to conduct the KNX Drive Away Hunger Day, which raised more than
$31,000 to feed the less fortunate during the holiday season. KNX
employees collected checks from listeners at the Valley homeless
shelter.
For its 32nd straight year, KNX honored a Citizen of the Week for
outstanding public service or heroic actions. Their stories of
commitment become the core of a station documentary called The Good
People and the highlight of a station luncheon honoring their community
spirit.
KNX remains the lone radio sponsor of the Governor's Conference for
Women, a one-day event focusing on personal finance, professional
development and testimonials from famous women. This year KNX anchor
Gail Eichenthal is serving as a moderator for one of the conference
panels and KNX Community Services director David P. Ysais served as a
scholarship judge.
KNX reporters and anchors serve as celebrity bartenders at the
annual Block Party for the Concern Foundation. The Concern Foundation
event raised $1.5 million dollars in a single night. KNX anchor Frank
Mottek serves as emcee.
KNX Community Services director David P. Ysais serves at Principal
for a Day throughout low-performing, inner-city schools. This is his
fifth straight year of serving as principal at schools throughout Los
Angeles. He delivers a speech at every location talking about careers
in broadcasting and the importance of staying in school.
This is KNX's fourth straight year of hosting a Coro Foundation
fellow. The Coro Foundation develops disadvantaged students in the
areas of public policy, public service and public development. For one
week, the Coro fellow works in both the newsroom and community services
department, in order to understand the media coverage of public policy.
Graduates of the program now work in Los Angeles government.
KNX received an award from WeTip as a Radio Station of the Year for
the eight straight year. KNX has been a solid partner of WeTip,
promoting the anonymous anti-crime hotline after its crime stories. KNX
listeners continue to be among the top ten resources for crime tips in
Southern California.
KNX also is in its fourth year of sponsoring the Well Woman
Conference at Good Samaritan Hospital in downtown Los Angeles. The
conference is designed to offer the latest services and information for
minority communities. KNX offered public service support as well as
interviews with doctors at the event. More than 1000 women attend every
year.

KTWV-FM
KTWV 94.7FM--The Wave has consistently been in the forefront with
renowned involvement among local communities and charitable causes.
Listed are examples of significant contributions made to local
charitable causes benefiting Los Angeles and Orange Counties.
October 2001

``A WAVE OF PEACE'' CONCERT.

The first free concert in Los Angeles held at the Forum in
Inglewood on October 14, 2001 to directly benefit the American Red
Cross Disaster Relief Fund. This, once in a lifetime, free, All Star
Jam Session featured over 20 Top Smooth Jazz Recording Artists with a
special appearance and performance by recording artist Stevie Wonder.
``A Wave of Peace'' raised over $100,000 for the victims of the
September 11th terrorist attacks. Free general admission tickets were
distributed to the public at area Best Buy locations. The American Red
Cross was on-site at the event accepting monetary donations.
August, 2002

WAVE L.A.
Over 5000 KTWV Fans and supporters attended this sold-out concert
event benefiting the ``Magic Johnson Foundation'' and the ``Neil Bogart
Memorial Fund,'' a division of the TJ Martell Foundation. KTWV's
General Manager, Tim Pohlman presented a check on-stage to these
charities addressing issues facing youth today and Children's Hospital
Los Angeles. KTWV lent its support by heavy on-air promotion of the
event. Several interviews were also conducted on KTWV's morning drive
program with guests from a Smooth Jazz artist line-up and Magic
Johnson.
April, 2003

NATIONAL FATHERHOOD INITIATIVE CAMPAIGN

KTWV's morning drive personality, Dave Koz, joined forces with
Warner Brothers in awarding the first ``Golden Dads'' awards to 500
good fathers deemed ``Golden Dads'' in five major U.S. cities including
Los Angeles. The initiative program is designed to promote involved,
responsible, committed fatherhood by recognizing and rewarding the work
of good fathers. Celebrity fathers such as, Jason Alexander, Randy
Jackson, Stephen Collins, Alan Thicke, Bob Sagat, David Benoit, and
more, were involved as spokespersons for the campaign.
September, 2003

``GET IN THE GAME.''

KTWV staffers participated as chaperones in this wonderful event
where 100 deserving under-privileged children from Hoover Elementary
School in South Central Los Angeles were escorted to Dodger Stadium for
a Los Angeles Dodgers baseball game. This event made a huge difference
to many of the children whom had never had the opportunity to leave the
inner city to attend a sporting function. It was a first for the
children and a wonderfully safe time was experienced with many lasting
memories.

``WAVEFEST'' CONCERT.

Over 7000 KTWV Fans and supporters attended this sold-out concert
event benefiting the VH1's ``Save The Music'' Foundation in a yearlong
commitment to bring greater attention to the lifelong benefits of music
education and to restore music education programs in America's public
schools. This program has pledged to raise $1 million this year to help
restore public school music programs at a time when funding for music
education is being cut or eliminated nationwide. Many Smooth Jazz
artists performed at the event starring Natalie Cole and Mr. George
Benson. KTWV clients and advertising partners set up boots at the event
offering the audience a wide variety of sampling products and services.
Numerous on-air promotional mentions were made in support of what has
become Southern California's marquee ``Smooth Jazz'' musical event of
the year.

New York
WFAN
WFAN conducts a 28\1/2\ hour annual Radiothon each spring to
benefit local charities that are associated with the Hackensack (NJ)
University Medical Center: The Tomorrow's Children's Fund (kids with
cancer) and the CJ foundation for SIDS (Sudden Infant Death Syndrome)
along with the Imus Ranch (kids with cancer attend the session at the
Ranch). The station's 28\1/2\ hour Radiothons (its done 14 annual
Radiothons) have raised over $35 million dollars for the charities.
Each Radiothon begins on a Thursday at 5:30am with Imus in the Morning
and continues through 10am that Friday.
WFAN is also a heavy participant in the World Hunger Year
``Hungerthon,'' an annual event held the Saturday and Tuesday before
Thanksgiving. This year WFAN raised over $175,000 for World Hunger
Year.

CLUSTER

Infinity's New York stations in 2004 announced that they will
provide financial aid, mentoring and tutoring to New York City public
schools and will use air time to urge other business to do the same.
Each Infinity New York station will adopt a school and will provide
that school with at least $10,000 of financial aid as well as at least
five hours per week of mentoring and tutoring services in an effort to
help rebuild the New York public school system.

Philadelphia
WOGL
For two years running now, WOGL suspends regular programming for
FOUR days to raise money for The Children's Hospital of Philadelphia.
Over the past two years, WOGL has raised over $800,000. No other media
outlet in the city raises the kind of money WOGL does for a local
organization! 100% of the money raised benefits patient care programs
at Children's Hospital. For four solid days, WOGL lends the airwaves to
Children's Hospital to air the Oldies 98.1 Loves Our Kids Radiothon.
This year it aired Thursday, September 18 through Sunday, September 21,
2003. Morning Show Hosts Don Cannon and Valerie Knight chair the
radiothon but every single air personality comes out to lend a hand.
Whether they do an airshift or come to be on the celebrity phone bank,
the entire radio station devotes four days to help raise money for the
kids at Children's Hospital.

Phoenix
KMLE-FM
KMLE sponsored a special performance of Child's Play Arizona's
production of ``Charlotte's Web'' in June at the Herberger Theater for
a group of under-privileged kids.
The 2nd annual KMLE Radio-thon was held in the spring of 2002 and
raised over $340,000 for Phoenix Children's Hospital. The station did a
follow-up show on July 7, 2002, on how the money KMLE Country raised
for the new Phoenix Children's Hospital was being used. The KMLE Radio-
Thon is proof positive that Country Music listeners respond to a good
cause. In just 3 short years, the KMLE and its listeners have helped
raised over $1,200,000.00 to benefit the Phoenix Children's Hospital.
KMLE has literally played a vital role in helping to provide the funds
to build from the facility from the ground up. KMLE Country 108 Teen
Room is part of the facility. The Phoenix Children's Hospital is a not-
for-profit provider.

Pittsburgh
KDKA-AM
Children's Hospital of Pittsburgh Free Care Fund: 2003 will mark
the 57th consecutive year that KDKA has supported and raised money for
the Free Care Fund. Without a doubt, this annual 4Q/Holiday campaign is
Pittsburgh's most well-known fundraising campaign. The Children's
Hospital Free Care Fund provides medical care and treatment for kids
within a 150-mile radius of Pittsburgh, regardless of their family's
ability to pay. In 2002, KDKA Radio's campaign brought in more than
$128,000--and since 1946, has raised over $15-million. This annual
campaign runs roughly from Thanksgiving through Christmas--and features
station remote broadcasts from all over the Pittsburgh area, as KDKA
``takes'' the campaign throughout Western Pennsylvania. The campaign
also features heavy client involvement--as KDKA asks each client in the
campaign to make a donation to Children's Hospital. In recent years,
KDKA Radio and Children's Hospital have joined forces with KDKA-TV and
The Pittsburgh Post-Gazette to form the ``Free Care Friends,'' which
allows all three entities to cooperate on support and promotion of this
campaign. In 2002, KDKA and Children's Hospital debuted a custom-built
Gingerbread House, which acts as the Downtown-Pittsburgh headquarters
of KDKA's Children's Hospital broadcasts during most of December.

Portland
KINK-FM
KINK does extensive work for the Oregon Food Bank. KINK releases a
biennial CD compilation from the ``Lights Out'' program, the proceeds
of which benefit the Oregon Food Bank. The station has released 8
albums/CDs, which together have raised over $1 million dollars for the
Food Bank. KINK has also sponsored a four-day blues festival to benefit
the Food Bank, which raised more than $250,000 and over 300,000 pounds
of food last year alone.

KVMX-FM

KVMX is very active with the local charities. In 2001, the station
initiated Truckload of Coats as a response to the local need for help.
In the Fall of 2001, as was very much needed, money and goods were
flooding to New York from all over the country. Many local charities
were being ignored. In Portland, the homeless shelters were at an all
time low for supplies. KVMX's morning show pledged to stay on the air
until it filled a moving truck with coats and goods to supply local
homeless shelters. The station filled the massive truck in 11 hours--as
well as 5 other vehicles. The event is in its third year, and all of
the goods go to Portland's less fortunate. The station has expanded
this event to include 2 moving trucks and both sides of the Portland
Metro.

Riverside
KFRG/KVFG/KXFG
In 2003, KFRG/KVFG/KXFG raised over $297,000 for Loma Linda
University Children's Hospital during a 2-day Radiothon.
In 2003, KFRG/KVFG/KXFG raised over $356,000 for St. Jude
Children's Research Hospital during a 2-day Radiothon.

San Francisco
KFRC-FM
KFRC created the ``O! What a Party'' Blood Drive in conjunction
with the Stanford Blood Bank in Palo Alto to raise awareness for the
shortage of Type O blood. Listeners who donated were treated to free
food and beverages as well as door prizes including baseball tickets,
CDs, DVDs and more. The event was the most successful blood drive in
Stanford Blood Center History.

KITS-FM
BFD is KITS's annual concert/festival. Typically for BFD, KITS
chooses an environmental agency to donate a portion of the proceeds to.
In 2003, KITS raised over $20,000 for Save the Music, with all funding
going to Bay Area schools' music education programs. Also at BFD, KITS
has a Green Zone, a tabling area for non-profit organizations. The
station asks between 10 and 12 organizations to set up tables for the
day. The organizations can reach 22,000 people on that particular day.

KLLC-FM

In response to the September 11, 2001 tragedy, KLLC turned its
annual concert event held September 23, 2001 into a fundraiser for the
American Red Cross Disaster Relief Fund. Willie Brown, The Mayor of San
Francisco, proclaimed the event as ``A Day of Healing in San
Francisco.'' That day, with contributions from ticket sales and on-site
donations, the station raised $150,000 for the fund.
A local non-profit organization that collected second hand prom
dresses to give to the needy was robbed. KLLC's morning show went on
the air and did a Prom Dress Drive, collecting enough dresses (and
more) to--replace the stolen items.
Six years ago, when KLLC in San Francisco--started broadcasting a
new format, it made a commitment to make a difference in the local
community. The San Francisco Bay Area is known to have one of the
highest incidences--of Breast Cancer in the country. Since KLLC's core
audience is women, it made sense for the station to--be an advocate in
the fight against breast cancer and help raise funds for local breast
cancer organizations to continue their work. This inspired an annual
music CD project now in 2003 going into its 7th year. ``This is Alice
Music,'' Volumes 1-6 have raised $800,000 for the following local
breast cancer charities:

The Susan G. Komen Breast Cancer Foundation--the mission of the local
chapter is to eradicate breast cancer as a life threatening
disease by advancing research, education, screening and
treatment.
The Community Breast Health Project--founded in 1994 by a breast
cancer survivor and her surgeon. The project serves individuals
in the Bay Area, providing services free of charge from
diagnosis through treatment and beyond.
The Breast Cancer Fund--strives to unearth and eliminate the
preventable causes of breast cancer, identify safe, reliable
detection methods, develop non-toxic treatments and secure
access to care for all.
The Carol Franc Buck Breast Care Center at the UCSF Comprehensive
Cancer Center--meets the needs of patients with breast
problems, breast cancer or general concerns about breast
health.
Art For Recovery Breast Cancer Quilts at the UCSF Comprehensive
Cancer Center--created the Bay Area Breast Cancer Quilts
workshop as an outlet to express the breast cancer journey and
are frequently on display at local events and around the
country.
See Alice Run-KLLC's Annual Run event in Golden Gate Park helps
raise money for Camp Okizu. Camp Okizu is a small local non-profit that
provides a camp for kids with cancer. Camp Okizu works with seven local
hospitals to provide a special camp in Northern California for children
with cancer. The Okizu Foundation is a very small organization that
could not otherwise offer camp programs without help from the local
community. These programs are the result of a collaborative effort of
the foundation and the pediatric oncology treatment programs in
northern California.
KLLC has dedicated the last 4 years to building community awareness
about Camp Okizu. Every year at See Alice Run, Camp Okizu is given a
free booth to help promote camp awareness and sell Camp Okizu
merchandise. Additionally, almost every year, some of the Alice Run
advertisers make a cash donation from the main stage. Combined
donations from See Alice Run and corporations who have heard about Camp
Okizu through KLLC amount to over $200,000.
KLLC's Morning Show has taken a special interest in Camp Okizu, by
visiting the camp and participating in the first ever Karma for Kids
yoga program to benefit Camp Okizu. Launched in 2002 and sponsored by
KLLC, the Karma For Kids program raised over $500,000.
KLLC's 3-Minute Film Festival, which promotes the art of film-
making with an on-air campaign, website program that promotes the Bay
Area Video Coalition and the Film Arts Foundation, both non-profit
organizations dedicated to supporting the Bay Area Film community. Both
organizations also receive a donation from ticket sales.
St. Louis

KMOX

KMOX was one of the first stations to receive the NAB Crystal
Award, which is presented to one station across the nation each year in
recognition of its community service involvement. Following are some of
the highlights of KMOX's involvement with the community and charitable
organizations:
KMOX has produced the KMOX Student of Achievement program for
eleven years. Students are nominated by their counselors or principals.
The criteria for selection of a Student of Achievement lies within the
hands of school administrators, but it is suggested that high academic,
athletic, and extra-curricular achievements be the basis for the
nomination. Only one student can be nominated from each school. The St.
Louis Metro Area has about 150 high schools. Thirty students each year
are selected to become a ``KMOX Student of Achievement''. Each student
is interviewed and an audio vignette highlights him or her for one week
as that week's KMOX Student of Achievement. The student also appears as
the KMOX Student of Achievement on the local public television station.
Each student is also honored at the KMOX Student of Achievement
luncheon in June. Students are invited to bring up to three guests to
the luncheon where they will receive a $100 savings bond, plaque,
opportunity for a scholarship to Southeast Missouri State University,
and gifts from sponsors.
KMOX has been the official sponsor of St. Louis Women of
Achievement for over thirty years. St. Louis Women of Achievement is
the oldest on-going program in the area whose sole mission is to honor
and recognize the commitment and dedication of women. The annual award
is given to ten women who have made a significant difference in the
community. The award recognizes volunteer service and volunteer
leadership in the St. Louis region.
KMOX uses its airwaves to give a ``voice'' to charitable
organizations that are making a difference in the community. Each
month, KMOX chooses an organization to be its ``Voice of Caring''
Partner for that month. Not only does KMOX devote 45 of its monthly
public service announcements to the organization, KMOX airs three
interviews--one in Total Information AM, one in Total Information PM,
and one on a weekend morning show for the organization to get its
message to the public. Some of the organizations for this year are: Our
Little Haven, Junior Achievement, St. Louis Symphony, Animal Protective
Association and the Progressive Youth Connection.
For the past four years, KMOX Talk Show Host John Carney has held
the ``Taste of Restaurant Tuesday Spooktacular.'' Restaurants which
have been guests on John's ``Restaurant Tuesday'' program, prepare
their favorite dishes at this benefit which raises money for the St.
Louis Bereavement Center for Young People which helps children deal
with the death of a loved one.
For 26 hours, KMOX aired a Radiothon to benefit Forest Park
Forever, which included numerous interviews, and testimonials coupled
with challenges among on-air personalities to generate new ``Keepers of
the Park'', friends of Forest Park Forever at the $100 level or above.
The Radiothon's purpose was to raise awareness of Forest Park's ongoing
maintenance needs. KMOX attracted new Park donors from a wide swath of
the St. Louis region.

Tampa
WQYK-FM
Some of the station's largest fundraisers include its St. Jude
Children's Hospital 48-Hour Radio-thon, which has raised over $3.5
million for the hospital in the past twelve years. For the last 13
years WQYK has been instrumental in promoting and securing artists for
the Charlie Daniels Angelus Country Concert. Last year's concert
weekend raised over $300,000 for the Angelus, a home for severely
handicapped children in Pasco County.
Tampa is home to MacDill Air Force Base, which houses U.S. Central
Command. WQYK has for years supported the armed forces through a
variety of charitable causes. The station continued this during 2002-03
with free concerts for the troops at the base including Phil Vassar,
Neal McCoy, Ronnie Milsap, Toby Keith, Darryl Worley, and Gary Allan.
This past Christmas the station's Morning Show with Skip Mahaffey
collected over 10,000 holiday postcards and 20,000 free phone minutes.
During the Iraqi War, the station aired ``Postcards From the Front,''
greetings from soldiers overseas to their families in Tampa. And in
July the station was instrumental in putting together the ``2003
Freedom Concert'' to honor active and retired military personnel in the
Tampa Bay area. The 3-hour concert was broadcast live and commercial
free on WQYK and on Armed Forces Radio all over the globe and was shown
tape-delayed on Armed Forces TV. The show featured performances by
Charlie Daniels, Jo Dee Messina, Darryl Worley, Chris Cagle, Lee
Greenwood, Rebecca Lynn Howard, and Ashley Gearing. Other dignitaries
on hand included Gen. Tommy Franks, Florida Governor Jeb Bush, Tampa
Mayor Pam Iorio, and Buccaneer players Joe Jurevicius and John Lynch.

INDEPENDENT AND LOCAL PROGRAMMING:

infinity stations make independent programming decisions to address the
needs of their communities

Atlanta
WAOK
WAOK prides itself on its connection to the community dubbing
itself ``The Voice of the Community.'' The station chooses guests and
topics to best address the needs of its listeners. For example, the
station invited a member of the Minority Professional Network to the
station to discuss business advice for entrepreneurs and the need for
community pride. In addition, Lorraine Jacques White, host of WAOK's
``Power Talk'' has a book club in which she invites listeners to join
her in reading a book each month. During the month, Ms. White hosts a
meeting of the book club at a local bookstore, attended by listeners,
Ms. White and the author or some other special guest.
Once a month, WAOK hosts a show called ``The WAOK Town Hall
Meeting'', a live broadcast from various different locations in
Atlanta. Each community has access to the airwaves to discuss issues
and solutions to problems that pertain to their community. The station
works in conjunction with The Concerned Black Clergy of Atlanta to
execute these broadcasts.

Boston
WBCN-FM
The ``Boston Sunday Review'' is a two-hour public affairs program
that airs every Sunday, 7AM-9AM. This program covers issues that are of
concern to people in the Boston area. The host of The Review, Mat
Schaffer, schedules guests to discuss issues of local importance each
week.
WBCN has 128 scheduled spots per week dedicated to both written and
recorded Public Service Announcements. A great majority of these PSAs
cover issue-related topics.

WBZ

WBZ Radio's Business Editor, Anthony Silva, hosts a daily feature
that reaches out to Massachusetts small business owners and highlights
their accomplishments and successes. In fact, Mr. Silva was named ``The
Small Business Administration Reporter of the Year'' for 2003.
WBZ NewsRadio 1030 is committed to the local business community and
provides an ongoing, invaluable and topical series of breakfast forums.
The WBZ Business to Business Breakfasts are offered quarterly as a free
service and continually draw more than 700 distinguished CEO's,
executives, professionals, small business owners and listeners to each
event.
WBZ Radio Host Jordan Rich takes listeners on a radio tour through
New England with the family friendly weekend feature ``New England
Weekend.'' Six times per weekend Jordan highlights some of the flavor
of New England and informs listeners how they can join in on the fun.
WBZ Radio provides non-profit telephone information, referral and
action service dedicated to resolving listener's consumer problems.
WBZ's Call For Action uses professionally trained volunteers to act as
a buffer between the consumer and the company. Call for Action serves
as a source of information about community problems, and acts as a
referral agency for people with nowhere to turn. Call For Action
recovers thousands of dollars in goods and services for New England
consumers every year.

WBMX

While the opportunity to carry nationally produced or syndicated
public affairs programs at no cost is available to the station, WBMX
has instead elected to produce, at its own cost, two 30:00 minute
weekly shows specifically aimed to address local interests. Boston
Neighborhood Forum and New England Lifestyles are focused squarely on
the people and issues shaping the community of which the station is a
part.

WZLX

WZLX is proud to offer its weekly public affairs program ``Common
Ground'' (all locally produced) at a ``prime time'' Sundays 7-9a
leading into the extremely popular Blues Show. Common Ground discusses
local and national people and publications of interest to the local
community.
In response to listener feedback, the station extended the length
of the ``Sunday Morning Blues Show'' from two to three hours.

Charlotte
WBAV
WBAV prides itself on being the voice of Charlotte's African-
American community. Every morning the station provides live local,
state, and national news coverage in an hour-long program called
``Front Page with Beatrice Thompson.'' The show includes a live-
interview segment with a local community leader or newsmaker and
provides up-to-the-minute coverage of news and information of
importance to the local community. Each week, WBAV'S ``Straight Talk''
provides an hour of live talk Sunday mornings from 11:00am until 12:00
Noon. The show has tackled a variety of topics including, but not
limited to:

Health care issues--Diabetes, transplants, sickle cell, HIV/AIDS,
smoking.
Political--area city council decisions, taxation questions, laws
impacting daily life of listeners.
Education--desegregation issues, bussing/transportation, achievement
goals.
Civic/economic--uptown development, business involvement in the
community.

Chicago
WBBM(AM)
WBBM is a 24-hour a day all-news station, all locally produced and
originated (with the exception of the top of the hour CBS newscasts.)
It is Chicago's most-listened-to station. Some specific programming
highlights:

WBBM Sponsored and broadcast debates between the Democratic, then
Republican Gubernatorial candidates.
WBBM Sponsored and broadcast a debate between the Republican and
Democratic U.S. nominees.
WBBM reporter Steve Miller produced and reported a series that lead
to a GAO investigation. Indigent veterans were buried,
incorrectly, in pauper's graves, rather than in Veteran's
cemeteries with appropriate military burial. Some graves were
exhumed and the bodies re-buried as a result of Steve's series.
WBBM actively solicits ``newstips'' from listeners.
WBBM, in conjunction with the Chicago Public Schools, originates a
monthly primetime program, ``Talk to the Schools'' which
features the Chicago Schools Superintendent taking calls from
Chicagoland residents. The program is co-hosted by Chicago
Public School Superintendent Arnie Duncan, giving listeners an
opportunity to directly address education-related issues.
WBBM features a full-time Business Editor based at the Chicago Stock
Exchange as opposed to a syndicated business news service.
WBBM features a ``suburban bureau'' specifically covering issues of
importance to the suburban community, staffed 5 days a week.
WBBM regularly presents long-form, live coverage of election campaign
debates.

Dallas
KRLD(AM)
KRLD recognizes the contributions made to the local community by
African-Americans over the years. In February, KRLD airs a series of 28
reports, profiling local African-American citizens who have contributed
in both tangible and intangible ways to the quality of life in Dallas/
Fort Worth.

Detroit
WXYT
As the radio station where sports fans gather to talk about their
favorite teams, WXYT broadcasts local programming from 10 a.m. until 10
p.m. Monday-Friday. This period extends even later when night games are
occurring.
Frequent show issues include the involvement of young people with
athletics, the financing of athletics, the impact of major sports teams
on the Southeast Michigan's economy and image, and defining the line
between professional and amateur at Michigan's Big 10 schools.
The shows take local callers and provide an outlet for the
frequently frustrated Detroit sports fan, as well as interviews with
major players in the Detroit sports world.
Several metro Detroit sports writers serve as contributors to WXYT
including Drew Sharp and Curt Sylvester of the Detroit Free Press, and
Pat Caputo of the Oakland Press (Oakland University).
Station is home to the ``Ask the Handyman'' show, celebrating its
twentieth year. The show includes weekly guests and offers advice to
listeners on making home repairs and avoiding related problems.

WVMV

Each week, WVMV acknowledges a local person who has voluntarily
helped individuals or groups with its Acts of Kindness salute. These
on-air tributes run 14 times per week. The individual receives a plaque
from the station and is eligible for a special Acts of Kindness award
announced at the United Way's Celebrate Volunteers Luncheon each April.

WWJ

WWJ focuses on crime and law enforcement by airing a monthly Chat
with the Chief program, and on the educational needs of the Detroit
Public Schools by airing a monthly Making the Grade program with the
superintendent of the Detroit Public Schools.
WWJ's reporters and anchors produce a large number of local
interest features, including:

Automotive Insight with John McElroy--looking at design, marketing
and business issues in the auto community.
Car Chronicles with Jeff Gilbert--a review of new cars
Peter's Principles--Health and Fitness tips with Peter Nielsen
Great Lakes IT Report--an update on the Michigan IT world with GLITR
editor Matt Roush
The Feldman Report--Business and consumer information from Murray
Feldman
Making the Grade--A report on schools and education with Greg Bowman
GreatStuff--A daily feature on what's happening around town in arts
and entertainment with Roberta Jasina
Making a Difference in Southeast Michigan--A profile of charitable
giving and individual initiatives with Bill Stevens
Detroit History Minute--A daily look at a unique and interesting
moment from Detroit's past, with Joe Donovan.
WWJ has partnered with the Community Foundation for Southeastern
Michigan to produce the program ``Making a Difference in Southeast
Michigan,'' a weekly series that profiles people and organizations that
``make a real difference in the lives of Southeast Michigan.''

Hartford
WRCH
WRCH obtains recorded messages from local US military service
personnel station around the world and broadcasts them to their
families in Connecticut and central Massachusetts each hour throughout
the month of December.

WTIC(AM)

WTIC broadcasts a weekly half-hour ``Face Connecticut'' public
affairs show focused on important issues in the state.
WTIC conducts a weekly public affairs program addressing issues
that specifically affect the community's elderly population.
WTIC NewsTalk 1080 broadcasts a monthly one-hour ``Community
Connection'' program which features representatives from United Way
organizations to discuss various volunteer efforts in the community.
In 2002 WTIC NewsTalk 1080 replaced a popular nationally syndicated
radio program with the two-hour local program ``Connecticut Today.''
WTIC NewsTalk 1080 conducted extensive coverage of ceremonies for
Connecticut service personnel as they departed for the Iraqi conflict,
welcome-home ceremonies for National Guard and Reserve troops and for
submarine crews returning to the Groton naval submarine base.

Kansas City
KFKF
In 2003, KFKF replaced syndicated Lia program with local jock Lisa
Foxx. In addition, NASCAR race coverage has been dropped and replaced
with more live/local hours of broadcasting. This was a direct result of
researching the core audience.

Los Angeles
KFWB(AM)
KFWB created and executed a half-day Saturday seminar on the
California energy crisis; much of the seminar was carried live and
highlights were rebroadcast in a two-hour special program.
KFWB's special programming provides a voice to the community with
monthly call-in programs featuring the Mayor of Los Angeles, Los
Angeles Police Chief and Superintendent of Los Angeles Unified Schools.
KFWB's investigative reporting has led to changes in how local ports
are patrolled and the local water supply is protected. KFWB provides
balanced coverage on candidates and issues. In addition to regular news
reports, in October 2002, KFWB pre-empted a regular broadcast of Larry
King Live to present an hour-long live call-in program featuring both
sides on two secession measures on the November 2002 ballot.
During the war in Iraq, KFWB on several occasions was able to air
live interviews with US soldiers on the front lines in Iraq (via cell
phone or satellite phone) who were either from the station's listening
area, or who were based at military installations in the station's
listening area. This kind of one-on-one journalism localized the story
in a way that using reports from journalists on-scene simply could not
do.
KFWB devoted substantial coverage to the California Gubernatorial
recall election (as well as the court challenges surrounding it).
Beyond the ongoing news coverage, KFWB has provided all qualified
candidates--free airtime--to deliver their campaign platform message to
its audience. KFWB also broke format to provide ongoing live coverage
on October 7 (election day) of this historic vote.
KFWB organizes and executes several ``Power Breakfasts'' throughout
the year. These public forums focus on providing small business owners
and operators with expertise on how to better navigate the business
world and be more successful in their field. Attendance can range from
250 to 600 people.
KFWB's website contains a ``Community Calendar'' that any local
community or non-profit organization can use to post an announcement
identifying their event and who it benefits. The calendar--uses a tool
allowing the organization to input its own information.
The website also has an entire section devoted to offering
earthquake preparedness information . . . a key service in the
station's listening area.
During the station's broadcasts of Los Angeles Dodgers baseball, it
inserts several ``news briefs'' between innings for those people who
still depend on KFWB for news even as its carrying the play-by-play of
the game. Also during the ballgames, the station does traffic updates
at the top and bottom of the hour.
The general manager of the station served recently on a panel at
the Homeland Security Summit organized by Los Angeles Mayor James Hahn.
The topic of the panel was ``Improving Communication between the
Government and Media in Time of Crisis''.

KLSX-FM

KLSX is a personality and entertainment talk station. For nearly
eight years, KLSX has hosted a live call-in public affairs program
called ``Sunday Edition.'' It was awarded ``Best Public Affairs Show''
in 2000 by the Literacy Network of Greater Los Angeles.

KNX(AM)

The last week of every year KNX produces a series of reports that
review and explain new and revised laws that take effect in California
on January 1 of the new year. It's designed to explain the impact of
new directives and help listeners avoid pitfalls that could result from
ignorance of changes in existing laws or implementation of new ones.
In election years, KNX routinely provides its audience with an in-
depth examination, in series form, of the pros and cons of ballot
propositions as explained by people involved in promoting or opposing
the initiatives.
KNX offers the community affairs program On the Scene where local
non-profits are featured every Saturday. KNX Community Services
Director David P. Ysais interviews the non-profit representatives at
their location focusing on special events and service offered to the
local community. There is emphasis on small and medium-size
organizations throughout Southern California.
KNX singles out a Citizen of the Week from the listening community
who has either performed a heroic action or has performed outstanding
public service. These stories are then broadcast as an interview with
KNX anchor Jack Salvatore. The stories are of people pulling strangers
out of burning buildings, or offer a healthy kidney to a stranger in
need of a transplant, or giving 35 years to Boy Scouts. The citizens
then gather for a luncheon in January where KNX selects a Man and Woman
of the Year, and the citizen stories are repeated.
KNX Consumer reporter Jackye Shaun has offered tips to listeners
about making their money last longer for more than 30 years. Her
feature focuses on businesses and services right here in Los Angeles,
which are designed to help consumers.
KNX is among the most aggressive stations with regard to informing
potential voters about upcoming local and statewide elections. Included
in a history of endorsements, are efforts at informing listeners about
all issues on the ballot. In the most recent recall ballot, KNX aired
50 political features focusing on each candidate running for governor
of the state, in addition to a written description of their campaign
direction. In the past, KNX has run endorsement specials right before
an election, to explain all of its decisions, and to give voters more
information.

Minneapolis
WCCO
WCCO Radio is the only radio station in the Metro that creates and
executes live and local programming 24 hours a day Monday through
Friday, and on weekends from 6:00 AM-10:30 PM covering, on average, 400
news elements and stories per week.
The Governor of Minnesota hosts his own weekly radio show on WCCO
Radio to discuss issues of importance to Minnesotans and to take calls
from constituents. He chose WCCO radio to be the Flagship station
because of the station's reach and reputation as a community radio
station.
Every weekday for the past 50 years, WCCO Radio has honored a
different member of the community that has contributed to their
environment in a positive way. This award honors everyone from athletes
to cooks to grandparents. If you have made an impact in someone's life,
you're deserving of The Good Neighbor Award. Daily winners receive a
certificate suitable for framing and a :60 on-air honor twice on the
day they are chosen.

Pittsburgh
KDKA-AM
The KDKA Stormcenter: In the winter, KDKA alters regular
programming to provide listeners with the most current list of school
and event cancellations. KDKA also provides up-to-the-minute weather
conditions, crucial traffic tips and updates on power outages Spring/
Summer/Fall-the station is the primary carrier in its region for the
Emergency Alert System. KDKA provides emergency weather warnings first
to its listeners. The station also breaks format during storms with
updated weather, traffic, news information as well as taking calls from
eyewitnesses describing the scene.
Talk Shows: The station's talk shows consistently interview local
leaders about local issues and provide a public forum to better its
community. KDKA also deals with national issues and breaks format
during wartime, airs important addresses or press conferences and
provides all public safety information to its listeners. Pittsburghers
listen to the station in time of crisis.
School Talkback program: Took the station's mid-day talk show to 4
different local high schools to provide a forum for students to talk
about issues that affect them. The station took calls from listeners
who were able to interact with the students.
NAACP program: KDKA airs a weekly 10-minute, commercial-free NAACP
program hosted by a former Pittsburgh NAACP president to help address
the needs of the African-American community.
Catholic Church talk Program: Sunday evenings the station runs a
limited commercial call-in program hosted by a Pittsburgh Catholic
priest that deals with religious issues and other concerns of the
church. This program deals with controversial topics and allows
listeners to call-in and question or support the views of the priest.
Ask the Governor Hour: Once a month the stations airs a Governor's
Rendell's show. The Governor takes questions from listeners in a very
crucial time for the Commonwealth of Pennsylvania.
Bi-monthly Editorials: These award winning editorials delivered by
Infinity Pittsburgh's Senior Vice-President and Market Manager Michael
Young take issue and bring to light the fate of various topics not
excluding: Pittsburgh's economic crises, the fate of U.S. Airways, and
Pennsylvania's budget woes.
Yearly Community Ascertainments: This station staffs and moderates
a yearly ascertainment program where various leaders in the Pittsburgh
region express their concern on what needs to happen for Western
Pennsylvania to succeed.
County Executive Forum: In a year when the Allegheny County
Executive is up for re-election the station aired a forum twice between
the respective leaders of Democratic and Republican Party. This program
was intended to give the station's community to better understand the
two politicians and make a better-informed decision come election time.

Portland
KINK-FM
KINK has its own news team and airs news segments twice an hour
through morning drive. They have a professor of political science, Dr.
Jim Moore, who provides an analysis of political issues of concern to
the community. For example, on January 29, 2003, Dr. Moore not only
discussed the previous night's State of the Union address, but also
provided an analysis of a Special Election measure, ``Measure 28,''
which was a special tax to fund education that did not pass during a
local election the night before.
KINK produces several programs to deal with issues important to the
local community. The station uses the top 10 issues that are collected
in its quarterly ascertainment report by Lacy Turner, Portland
Infinity's Public Affairs Director. All decisions on the content of the
programs is made locally at KINK and not influenced in any way by
corporate, or any other mandates.

KINK Considers is a 3-minute in-house produced Public Affairs program
that deals with one issue that runs six times a week inside its
regular programming. The station feels it's important to deal
with important issues like the economy, health care,
government, etc. in a bit-sized, understandable format that can
run during prime hours. KINK Considers runs in AM drive, midday
and PM drive times.
Subject Earth is produced in-house. It is a short-form environmental
program that runs 3 times a week during regular programming.
The Environment is consistently in the station's top 10 issues
list, and this program gives meaningful tips to the station's
listeners on what they can do to be more environmentally aware.
Home Page is a short-form program also produced in-house that deals
with important issues like education and youth issues. It runs
three times a week during regular programming.
Discovering the Northwest is a short-form program that deals with
tourism and the local Northwest economy. It runs three times a
week during regular programming
Speaking Freely is a 30-minute long-form discussion of one of the
station's top ten issues with an expert or newsmaker. It is
hosted and produced by KINK's News Director, Sheila Hamilton.

Rochester
WCMF
WCMF-FM replaced the syndicated ``Rockline 2'' program with local
programming in January of 2000.
WCMF-FM replaced the syndicated ``Chase Pitkin Home Show'' program
with local programming in May of 2001.WCMF-FM replaced the syndicated
``Opie & Anthony'' program with local programming in June of 2002,
prior to the program's termination.

San Diego
KPLN AND KYXY
Both Stations are ``live and local'' 24 hours a day, 7 days a week.
All programming decisions, including every record played on KyXy and
KPLN, are made locally.
Both stations' music selection relies on frequent music testing
with an auditorium full of exclusively San Diego County residents.
Both KyXy and KPLN employ their own dedicated local newscasters and
traffic reporters.
Both KyXy and KPLN air a weekly long-form locally produced Public
Service talk show, called ``Concerning San Diego.''
KyXy's highly rated nightly ``Love Songs'' request and dedication
show is one of the few ``local'' shows of its kind left.

Seattle
KMPS/ KYCW
All of the programming on KMPS-FM is generated locally. Each of the
station's on-air personalities focuses on local content and
entertainment between songs. They are active in their schools, churches
and communities in which they live.
KMPS carries the Washington State Cougars Football and Basketball
as well as Hydro Racing, which is very popular in the Northwest. It is
also the official Radio Station of the General Motors Cup at Seafair
and the Seafair Torchlight Parade.
KYCW-AM is a fine example of a local, independent programming
decision-making. KYCW-AM serves a niche audience and airs two highly
acclaimed local programs ``Music with Moskowitz'' and ``Legends of
Country.'' Music With Moskowitz is a well loved locally produced
program of new and vintage comedy songs and Legends of Country plays
classic and influential country and western music from the 1940s to the
1970s. Both shows have a small, but fervently loyal, fan base. In
August of 2001, the station switched 1090 AM from Classic Country 1090
to Extreme Talk 1090. The outpouring of letters, phone calls and e-
mails from the community made it clear that the community wanted
Classic Country back on the air. The will of the local listening public
prevailed, and in a very rare occurrence, KYCW-AM returned to serving
its niche local audience in May 2002.
For over 25 years the station's News Director, Don Riggs has
produced a local public affairs program called ``Introspect
Northwest.'' This show airs every Sunday on KMPS-FM and KYCW-AM. Don
regularly attends the community ascertainment meetings and documents
the needs of the local area.
Every Friday, Don Riggs features a list of weekend community events
during his newscasts from 5:30am to 9:30am.

Tampa
WLLD
WLLD relishes in the fact that out of 168 hours of programming,
weekly, it only has four of them dedicated to syndicated programs. This
allows the station to focus on local culture and interests. The station
also made the decision to append each club advertisement with a ``don't
be stupid, don't drink and drive'' tag line. This has been standard
procedure with the station's nightclub ads for all 5 years of the
station's existence. The staff is quite proud of the station's active
involvement with the Pinellas, Hillsborough, Sarasota, and school
boards. The staff speaks at various schools covering subjects such as;
staying in school, career planning, and marketing.
Washington, D.C.

WPGC-FM
Each summer WPGC holds ``Streetjams'' weekly around the DC area. In
conjunction with area police departments and local community leaders,
the station shuts down a street, erects a stage and brings out its
promotional and broadcast vehicles. WPGC then brings local talent to
perform, broadcasts live and has community and church leaders present
to speak to the neighborhoods about empowerment and peace on the
streets. These are free and open to everyone and been very successful.
The station has done these every summer for the past 12 years.
WPGC is one of the few music stations in DC that has a real news
department. The station's news director, David Haines, is on call 24
hours a day for breaking stories. He has full authority to go on air
and interrupt regular programming with a news bulletin at any time and
does this often. Recently hurricane Isabelle threatened the area, and
David was on air with weather and storm updates as well as closings and
cancellations, day and night. David provided the same kind of round the
clock updates last fall when there was the sniper loose in the DC area.
WPGC-FM has a Sunday evening show that has aired for 13 years,
called ``DC Homejams''. It is a 30-minute program where the station
features local artists exclusively. This program, hosted by DJ Flexx,
has given airtime to many groups who would normally never have a chance
to be on a major market radio station. One of the station's biggest
discoveries was a local group called ``Shai''. The group gave the
station a demo tape, which it played on the air. The response from
listeners was strong so the station gave the song a high rotation and
the group was signed to MCA records. The song the station played, ``If
I Ever Fall In Love Again'' went on to be a national hit!
WPGC airs a semi-regular show called, ``YO Listen Up''. It is a 60-
minute show that is aimed at teens covering subjects such as teen
pregnancy, violence in the schools and AIDS & teens. It is hosted by
the station's night show hosts, the Hometeam, and includes guests who
take calls from listeners on the various topics it covers.

LOCAL NEWS AND INFORMATION:

INFINITY STATIONS ASSURE COVERAGE OF LOCAL AND NATIONAL EMERGENCY NEWS
AND INFORMATION

Baltimore
WQSR
In 2003, coverage of Hurricane Isabel's effect on Baltimore was
comprehensive. Throughout the four-day period of the greatest impact of
the storm, WQSR offered a series of bulletins and twice-hourly news
reports. During the height of the storm, WQSR introduced a group
discussion, dropping the music format and offering listeners a place to
discuss their feelings and receive important emergency information.
Representatives of FEMA, American Red Cross, the Governor and
Lieutenant Governor of Maryland, and other important officials were
interviewed. They provided important life-saving information to WQSR
listeners.
As electrical power was disconnected for many of the station's
listeners for several days, WQSR offered programming for those in the
dark, and even solicited for temporary housing for some of those
affected by the storm's worst damage.

Chicago
WBBM(AM)
WBBM is the first choice of Chicagoans for emergency coverage
providing wall-to-wall, commercial free coverage of breaking news,
most-recently a hostage situation and multiple homicide on the
Southside, and of the enormous NYC/Cleveland/Detroit blackout its
impact on the Chicago area. WBBM-AM has 10 fulltime local reporters.
WBBM offers a ``News-tip'' hotline that is answered 24 hours a day
and regularly contributes to the station's news effort. WBBM actively
solicits ``newstips'' from listeners.

Dallas
KRLD(AM)
KRLD was one of the focal stations in Dallas/Fort Worth in the
development of the original ``Amber Plan'', the program that has proven
successful in returning abducted children to their families. KRLD is
one of the stations that originates the Amber Plan alerts in Dallas/
Fort Worth. KRLD's General Manager, Jerry Bobo and News/Operations
Director, Tyler Cox, were part of the team that developed the original
Amber Plan that is now growing across the nation.
KRLD is the only all news radio station serving Dallas/Fort Worth.
The station has devoted more resources than any other radio station
(and more than some TV stations) to reporting news in North Texas. With
a 30+ person news staff (including the only full-time radio-only
meteorologist in the Dallas/Fort Worth area), KRLD provides around-the-
clock news coverage every day. During severe weather, KRLD interrupts
regular news coverage to provide extensive detailed news coverage of
the path of the storm and to alert listeners to impending danger.
On February 1, 2003, the space shuttle ``Challenger'' broke apart
over the skies of North Texas during its re-entry into Earth's
atmosphere. The entire KRLD news staff mobilized within minutes, and
pre-empted all commercial programming and content for the next 26 hours
to provide non-stop coverage of the disaster. Shuttle debris was
scattered across the KRLD listening area. KRLD programming provided
information to listeners about what to do and not do with any debris
they came across.
Three weeks later, the Dallas area was hit with a severe ice storm
that shut down business and schools for 3 days. As the All News station
for North Texas, KRLD's coverage was extensive, providing information
on not only school and business closings but also safety information
and traffic advisories throughout the duration of the weather
emergency.
When war broke out in Iraq, KRLD provided untold hours of
continuous coverage. The station not only covered news developments in
Iraq, but provided extensive coverage of the impact of the war on
families and communities in the North Texas area.
Spring and late Summer severe weather is commonplace in North
Texas. With the only ``radio only'' full-time meteorologist in the
market, KRLD provided extensive coverage of weather emergencies,
frequently interrupting regularly scheduled programming to provide
weather emergencies. It--is not uncommon for KRLD to interrupt Texas
Ranger baseball games with frequent weather advisories.
One of the key economic ``engines'' in the Dallas area is American
Airlines. When the air carrier was on the verge of bankruptcy, KRLD
provided extensive coverage of the union negotiations that averted
bankruptcy. Coverage went beyond the immediate impact to American
Airlines, to also include the potential impact on the many families
employed by American, and the ancillary businesses that would be harmed
if American Airlines did file for bankruptcy.

Detroit
WKRK
WKRK assisted the Hazel Park Police Dept. in spreading the word
about raising funds for non-lethal weapons. Chief David Niedermeier
visited the studio and explained how non-lethal weapons are a safer
option for his officers and the public.
WKRK took a lead role in providing non-stop coverage and news
information during the nation's worst blackout. WKRK provided necessary
emergency information throughout the entire crisis.
WKRK provides local weather and traffic updates every fifteen
minutes throughout the day.
WKRK airs a localized Dow Jones Money report 3X each day. This
report provides stock and business information focused on the local
business community.
When severe weather threatens metro Detroit, the station's talent
will break away from local programming to provide weather updates.
Provides coverage and discussion of issues relevant to the Detroit
area. Recent examples include:

Reported that a slim majority of Michigan voters support a State
Constitutional Amendment banning affirmative action--sought
listener reaction.
Local man faces charges of animal cruelty felony firearm counts after
killing two pit bulls who repeatedly entered his yard--should
he be convicted?
Detroit Metro Airport will be ``Color Coding'' passengers based on
criteria including age, destination, etc. Some passengers will
be required to pass extra security or may have to talk to
police--sought listener reaction.
Reported that identity theft is spreading in Detroit--sought
listeners experiences.
Sought listener reaction regarding a local Detroit resident sentenced
to thirty-months after being convicted of filing ninety false
state tax returns.
Sought listener reaction regarding plans for a drive-in movie theatre
in the parking lot of the Silverdome.

Hartford
WTIC(AM)
WTIC NewsTalk 1080 has a strong commitment to local news, weather,
traffic and sports. The station has news anchors on duty twenty-four
hours a day, seven days a week and features news updates every half-
hour.
WTIC NewsTalk 1080 maintains a news staff of six full-time and six-
part time news employees and two full-time and two part-time
meteorologists to provide custom weather forecasts.
WTIC NewsTalk 1080 listeners can get in touch with the station by
telephone, cellular phone, or email--not only though extensions from
the main station switchboard, but through direct phone lines to the
newsroom and a special cellular phone speed-dial number for traffic
information.
WTIC NewsTalk 1080 maintains phone lines to provide line-quality
broadcasts from the Connecticut State Capitol and the state Armory,
where the Office of Emergency Management is located.
WTIC NewsTalk 1080's station news vehicle is equipped with two-way
radio, cellular telephone communications, an audio mixer and RPU feed
capability on two frequencies to provide high-quality feeds from news
locations.
WTIC NewsTalk 1080 has an automated system with nearly 3,000
organizations, schools and businesses whereby they can report weather-
related cancellations which are broadcast on air and posted on the
station's website.
When a fire broke out at a Hartford nursing home in February 2003.
The station's coverage of the event garnered its own story in the
Hartford Courant. In addition to having two reporters on the scene, the
station featured live news briefings from city officials and telephone
interviews with health and safety officials.
WTIC NewsTalk 1080 produced and broadcast all five Connecticut
gubernatorial debates in 2002.
WTIC NewsTalk 1080 is a primary broadcaster for the Emergency Alert
System and the Amber Alert program.
In November 2002, when an ice storm left 130,000 Connecticut
residents without power, WTIC NewsTalk 1080 brought in extra news and
weather staff for an expanded broadcast of the situation. As further
preparation for future similar events, WTIC NewsTalk 1080 contacted
local mayors, selectmen and emergency operations directors providing
information on how they could contact the station in similar
emergencies to education the community.
In 2003, WTIC produced a special report on the Blizzard of 1978--25
years later. The broadcast featured interviews with present and former
state employees as well as listeners covering that they remember about
the event.
WTIC abandons regularly scheduled programming to provide minute-by-
minute reporting when local and national events break.

Los Angeles
KFWB(AM)
In case of emergency such as earthquake or wildfire, KFWB tells
residents where to go for shelter, medical attention, financial
support, etc. Many schools and businesses list KFWB as the place to
turn for emergency information. During a recent brushfire, the Red
Cross tuned radios in its offices and shelters to KFWB for the benefit
of workers and residents.
KFWB provides invaluable information to residents who have family
and friends in other countries facing disaster. During the recent
Colima earthquake, bilingual KFWB reporters provided information to
KFWB's Mexican-American community on the earthquake.
Year-round, KFWB airs reports to educate the public on how to deal
with emergencies. In April, California's Emergency Preparedness Month,
KFWB broadcasts special reports several times a day, every day, on
emergency preparedness.
KFWB was the leading source of information on the California Energy
Crisis. The station was the only media outlet in a position to
broadcast specific warnings in advance of ``rolling blackouts'' and
dispatch alerts to listeners in the station's e-mail base.
KFWB listeners get personal attention whether they call or email.
KFWB's phones are open 24 hours a day, 7 days a week, and all letter
and emails receive a personal reply (with copy to the public file).
KFWB also provided commercial-free news coverage in the initial
hours of the war in Iraq, and regularly broke format to provide
program-length coverage of military briefings, Presidential speeches,
and Homeland security updates during the course of the war. All
decisions on what programming to air, and when to eliminate commercials
so as to maintain continuity, were made by station management (with no
oversight from corporate). During the war, KFWB also provided special
news reports to sister stations KRTH, KTWV and KLSX to ensure that
listeners to those stations received the latest news updates on this
ongoing story.

KNX(AM)

KNX has won more journalism awards than any other station, for its
ability to inform listeners. The KNX Community Services department has
gone a step further by setting up an emergency hotline where businesses
and school districts can call for truthful information about street or
school closures, or emergency evacuation plans. But in a crisis or an
emergency, KNX is prepared to provide up-to-the minute coverage of
local emergencies.
When two teenaged girls were kidnapped in mid-summer 2002, KNX
frequently broadcast Amber Alerts in the pre-dawn hours and into
morning drive. Police received numerous tips from drivers who
recognized the car from Amber Alerts and the girls were rescued.
In the Northridge quake, KNX provided vital information to
residents who were trying to get to loved ones in destroyed buildings.
KNX also uncovered several stores gouging quake victims for such
supplies as water and food. Several store owners were arrested. Not
only did KNX offer assistance during the quake, it developed a quake
checklist and has handed out millions of the brochures so people can
prepare for the next temblor.
In the Laguna and Malibu fires, KNX provided information to
homeowners trying to decide whether to stay in harm's way and protect
their homes or evacuate. KNX kept people informed about Red Cross
shelters, insurance information and tips on federal assistance.
A heart transplant patient waiting for the proper organ, was
vacationing near the Salton Sea. KNX announced a compatible heart had
been found and began announcing it on the air. Within two hours, the
patient had been located by other KNX listeners out in the middle of
the desert. The patient was airlifted to the hospital and the
transplant was successful.
KNX provides updates every six minutes on traffic and provides
current information to listeners coping with emergencies such as brush
fires, floods and earthquakes.

New York
WCBS(AM)
WCBS devotes millions of dollars of resources to providing a 24-
hour news product locally with a news staff of more than 75 people. The
station has field reporters spread across the tri-state area providing
listeners with local news. In addition, WCBS covers local business,
local sports and local traffic and weather every hour around the clock.
The station participates in the Amber Alert system reporting
immediately on any missing children. Once an alert is sounded, the
station repeats the information frequently every hour in conjunction
with consulting local law enforcement officials.
During local emergencies, the station provides wall-to-wall news
programming on the emergency. The most recent example was the ``black-
out'' of the east coast and New York Metropolitan area. The station
dropped all commercials and other programming and focused completely on
the emergency, providing residents with their only source of
information, since electrical power was unavailable.

Philadelphia
KYW
KYW Newsradio is the most relied upon source in the market for
information during emergencies and severe weather. In addition to
coverage, the station has a comprehensive snow and school closing
program that registers thousands of schools and non-profit
organizations to have their status reported on-air during inclement
weather without charge.
The station also participates in the Amber Alert program of
notification when a child is abducted.
Two employees staff the KYW newsroom phones during all shifts. They
can take information from listeners, refer listeners to city and
community resources in an emergency, repeat information listeners may
have missed hearing, as well as refer them to the KYW web site.

WOGL

When it's appropriate WOGL will always suspend its normal music
programming to provide the urgent information that the listeners need.
Just a few weeks ago a tornado touched down in a small suburb within
the station's listening area, and the station's news director
immediately broke into WOGL regular programming to alert its listeners
and to provide the necessary precautions to keep them out of harm's
way. And should emergency personnel every need to reach the air studio,
they'll find that there is always someone available to talk to them on
the phone. The station is live and local all day and night long.

Phoenix
KOOL-FM, KMLE-FM & KZON-FM
In September 2003, severe gasoline shortages suddenly and
unexpectedly hit Phoenix. The city's drivers were brought to a virtual
standstill as hundreds of gasoline retailers were forced to close their
pumps. Panic buying ensued, accentuating the gravity of the situation.
KMLE, KOOL and KZON each broadcast regular updates on where
gasoline was available for purchase. Listeners called on their cell
phones from their cars when they found gasoline available: the station
in turn relayed this information to its audiences.
This information was an integral component of KMLE, KOOL and KZON
for the three worst days of the shortages. The public received timely
and vital information where they needed it; when they were behind the
wheel in search of hard to find gasoline.
In November 2002, KOOL (and KZON and KMLE) broadcasted the first
Amber Alert message since the system went in place. Because a
conscientious listener heard the message on KOOL, an Arizona child was
returned home safely.
The story from the Arizona Republic newspaper follows:

CHILD ABDUCTION SYSTEM SUCCESSFUL ON ITS FIRST TRY
By Lindsey Collom, The Arizona Republic, Nov. 24, 2002

Fredrick Ruiz couldn't believe his eyes when the red truck crept
into his right field of vision.
Moments before, Ruiz, a truck driver for Albertson's, was listening
to KOOL-FM when a message from the state's Child Abduction Alert System
boomed from the cab speakers in his semi. It said a 6-year-old girl had
been abducted from her home in Bridgeport by her father Saturday
morning and was likely headed toward Phoenix. The vehicle: a red Toyota
extended cab pickup truck with a tool chest and tinted windows.
Ruiz, 47, was driving through Wickenburg on U.S. 60 when he spotted
the vehicle and matched the description and license plate.
11I said, `Oh, my God, this is the truck they were looking for,' ''
said the Chandler man, who then called 911. ``I got nervous when I saw
that. I said, `This can't be happening.' ''
Law enforcement officials are calling the first use of the alert
system a success after 6-year-old Emily Housley was returned unharmed a
mere three hours after her abduction. Sheriff's Lt. James Jarrell of
Yavapai County said Emily was taken around 8 a.m. Saturday when her
father, James Housley Jr., 38, burst into the home she shared with her
mother, Deana. James grabbed Emily and stormed out of the home, telling
her mother she'd ``never see her again,'' Jarrell added.
Housley completed a four-year sentence for theft in Maricopa County
in August and was denied custodial rights.
Saturday was the first time the Arizona Child Abduction Alert
System had been activated since its inception in the fall.

Pittsburgh
KDKA-AM
The station's award-winning newsroom delivers the most listened to
newscasts in the city. KDKA is one of the original stations helping to
institute the Amber plan in Pennsylvania. It is the designated station
in the 6 county region to report EAS information. KDKA focuses its news
on local issues, traffic, weather & breaking news--providing
information in times of trouble. One of its news reporters followed, on
foot, a local war protest throughout town for nearly 3 hours to keep
KDKA's listeners informed. The station conducts man-on-the-street
interviews when necessary to get the pulse of what Pittsburghers think
of a particular story. The station uses a system of checks-and-
balances, discussing how it reports stories so it keeps its opinions
and emotions out of the news and leave that to the station's talk show
hosts. The station uses its website to list recall and other safety
information so its listeners can read more about a story after it has
aired.

Rochester
WCMF
After the September 11th attacks, WCMF-FM suspended normal music
programming and broadcast continuous locally originated news and
information. Additionally, the ``Radio Free Wease'' program remained on
the air from 6:00am until 8:00pm on September 12, 13 and 14 to allow
continuous talk programming where Rochester area listeners were able to
participate in discussions and dissemination of information and
opinion.
During the Ice Storm of 2003, WCMF-FM broadcast frequent updates on
the availability of life sustaining supplies during the state of
emergency.

Sacramento
KZZO
KZZO considers local news of the utmost importance and does not
restrict coverage to ``morning drive'', nor does it farm news out to
syndication. News Director Marshall Phillips does numerous call-ins and
field reports throughout the day when the situation warrants. In the
past few months, KZZO has been reporting on the recall election, the
Laci Peterson case, AMBER alerts and breaking news around the clock. As
far as reporting emergencies, KZZO carries all EAS tests and alerts.
These are augmented by reports from Marshall Phillips. One recent
example: when the Sacramento area was ravaged by a series of powerful
thunder and lightening storms on May 8th, 2003, Marshall covered the
storms' paths and damage including advisories on how to stay safe and
what roads to avoid.

KNCI-FM

KNCI always uses the Emergency Alert System as directed, and it has
been used recently for area flooding information.
The station has successfully used the Amber Alert System, which is
controlled by CHP locally. It has met with the local officials to
discuss how to properly use ``Amber Alert.'' KNCI, in conjunction with
the CHP, carries every Amber Emergency Alert message that has direct
significance to the Sacramento metro area.
KNCI worked with local and state energy officials to broadcast all
local area ``black-out'' energy announcements.
The station reports any local major accidents immediately. KNCI
features 27 daily local traffic reports.
KNCI has installed a toll-free ``800'' phone line for area
listeners, which is often used to report news and emergency
information. In addition, KNCI's local request lines are answered 24
hours a day, 7 days a week. Phone calls, mail, and e-mail can be
directed to one of two people in KNCI's news department. In addition,
listeners can reach the program director who does not screen phone
calls. The station address for correspondence is broadcast and listed
on the station's website.
KNCI provided live election night coverage for the October 7th re-
call election in California.

San Jose
KEZR
Although KEZR is primarily a pop music station, it is fully and
locally staffed with live talent from 5:30 AM to midnight. No
syndicated or voice tracked talent is used, and the station has a local
live news talent on during morning drive time. In addition, all of the
station's non-news talent have deep roots in the local community and
are well qualified to provide coverage when local emergencies develop.
Just one recent example of this is the devastating fire at San Jose's
new Santana Row shopping mall. While this large development was under
construction, a huge fire broke out, causing millions of dollars in
damage and also forcing the evacuation of nearby homes and apartments
that were damaged and causing already busy afternoon rush hour traffic
to come to a halt. KEZR stopped the music and dedicated itself to
ongoing live coverage until the immediate danger had passed.

Seattle
KBKS
KBKS provides regular news updates in morning drive and breaking
news as it happens 24/7. The station has the resources of CNN to bring
news on a national/world basis to its listeners. When major local
emergencies happen, the station's staff rallies to provide immediate
and continuous coverage. One example of this occurred after a major
earthquake struck Seattle and the Puget Sound region in February of
2001. The morning show went back on the air to anchor continuous,
commercial free local coverage. All airstaff participated for the bulk
of the day, relaying reports on damage and casualties. A key component
of the coverage was the constant input from listeners via phone on
their personal experiences and eyewitness accounts of the day.

Washington, D.C.
WJFK-FM
On the night Hurricane Isabel pummeled the DC area, the Ron and Fez
show devoted their entire nighttime show to coverage of the hurricane
and acted as a conduit for listeners to call in and share their
experiences with problems like power outages and food shortages.
Instead of airing normal syndicated programming after the show, the
station decided to air a special edition of ``El Jefe's Hideout.''
Normally a Saturday night show, El Jefe continued to help the community
get through the crisis by broadcasting vital information and allowing
listeners to share experiences well into the night. Additionally, the
station replaced its normal PSAs with hurricane specific ones during
the time of Hurricane Isabel and her aftermath.
At the start of the latest War in Iraq, WJFK-FM brought in newsman
Buzz Burbank to give its listeners the latest updates on the war and
how it would affect local residents and families of the many service
people involved in the conflict. The station preempted the Don and Mike
Show and played a news feed in between Buzz segments. Ron and Fez also
devoted copious amounts of time to the conflict in the Gulf, including
preempting their show for Presidential addresses and other important
matters.
WJFK-FM participates in the Amber Alert system.
______

Prepared Statement of 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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THE BROADCAST DECENCY ACT OF 2004

----------

THURSDAY, FEBRUARY 26, 2004

House of Representatives,
Committee on Energy and Commerce,
Subcommittee on Telecommunications
and the Internet,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:35 a.m., in
room 2123, Rayburn House Office Building, Hon. Fred Upton
(chairman) presiding.
Members present: Representatives Upton, Bilirakis, Barton,
Stearns, Gillmor, Cox, Whitfield, Shimkus, Wilson, Pickering,
Bass, Walden, Terry, Markey, Rush, McCarthy, Davis, Towns,
Stupak, Wynn, Green, and Dingell (ex officio).
Also present: Representative Gonzalez.
Staff present: Kelly Zerzan, majority counsel; Neil Fried,
majority counsel; Howard Waltzman, majority counsel; Will
Carty, legislative clerk; Gregg Rothschild, minority counsel;
and Peter Filon, minority counsel.
Mr. Upton. Good morning. My good friend Ed Markey is on the
way, and he has sent word that we could start, knowing that he
will probably be here before the opening statements are over.
So, with that, we will get started.
Today we will be examining a bill that I have introduced,
along with Mr. Markey, Mr. Tauzin, Mr. Dingell, Mr. Barton, to
greatly strengthen the FCC's enforcement of broad case
indecency laws. I am pleased to say that we have already
reported this legislation out of this subcommittee, and we look
to have a full committee markup on H.R. 3717, the Broadcast
Indecency Enforcement Act next week. That markup, it is my hope
that we will be in agreement on ways that we can strengthen the
bill, and that the bill will be on the House floor shortly
thereafter.
I commend FCC Chairman Michael Powell and his colleagues on
that Commission for their work to clean up the airwaves.
Chairman Powell admitted in early January that the fines for
indecency were too small. He asked, and we delivered. After
introduction of the bill, we held our first hearing on January
28, and also received the support of the Bush Administration
that very same day.
Our bill was already on the fast track, and then came the
Super Bowl, bringing the issue of indecency directly to the
living room of nearly 100 million homes nationwide.
What we are talking about is the public airwaves that are
owned by the United States taxpayers. Using the airwaves comes
with a responsibility to follow the FCC decency standards that
apply to programming that airs during the family hours of 6 in
the morning until 10 at night, the likeliest times that
children may be tuned in. There must be a level of expectation
when a parent turns on that TV or radio between those hours
that the content will be suitable for children. You should not
have to think twice about the content on the public airwaves.
Unfortunately, that situation is far from reality.
Since we have introduced our legislation in mid-January, we
have seen some very positive steps taken by the broadcast
industry. The Grammys were broadcast with a 5-minute delay. The
Oscars this Sunday apparently will be run with a 5-second
delay.
Mel Karmazin, chairman of Viacom, who testified before this
subcommittee on February 11, appears to have heard the message
loud and clear. It was reported in the February 19 edition of
the New York Post that following our hearing, Mr. Karmazin had
a conference call with the execs of all 180 Infinity radio
stations, telling them that they will be fired if they violate
the company's new zero-tolerance policy on obscenity. ``If you
don't comply, you will be fired for cause,'' Karmazin
reportedly said. ``This company won't be a poster child for
indecency.''
According to the story, after the conference call, Infinity
execs issued a blunt memo to all personnel: When in doubt,
leave it out, said the memo, which also ordered all stations to
install programming delay units for on-the-fly censoring
immediately.
Just this week, Clear Channel gave the pink slip to shock
jock Bubba the Love Sponge, who garnered Clear Channel an FCC
fine of $755,000 in January for multiple indecency offenses.
And yesterday Clear Channel announced its new responsible
broadcasting initiatives, something that we will hear about in
testimony today, to ensure that all material used by radio
stations conforms to decency standards.
In compliance with the new policy, upon listening to
yesterday's Howard Stern program, Tuesday's Howard Stern's
program, Clear Channel announced that they were removing this
shock jock's program from their station until further notice.
That was a bold step, and I commend them for it.
The company has also gone so far that all of its contracts
with on-air performers are now being modified to ensure DJs
share financial responsibility if they utter indecent material
on the air.
I also have assurances that the cable industry is in the
process of putting together a massive public awareness campaign
to incorporate other ideas that were brought up during our
previous hearing to enable parents and consumers to block
unwanted cable channels. I applaud every one of those steps as
a step in the right direction, but these measures should never
have been necessary. As I said before, it was as if
broadcasters were in a race to the bottom, and unfortunately
they were all willing participants.
Are these measures positive steps? Of course they are.
Networks are being proactive in the effort to clean up the
airwaves. But these steps do not lessen the need for our
legislation to increase the fines significantly for those who
violate the FCC's indecency standards. Although I do not
question the merits of the actions by broadcasters to clean up
their act, will they still be as vigilant without the eyes of
Congress staring down upon them?
Fines for indecency as they currently stand seem to be an
accepted cost of doing business. By significantly increasing
the fines for indecency, the fines will be at a level where
they cannot be ignored. We now have the attention of
broadcasters nationwide, and the passage of our bill will
maintain the broadcasters' heightened level of awareness of
decency standards for years to come.
I am pleased to have broad bipartisan support for this
common-sense legislation. As of this morning we have 134
Members from both sides of the aisle, leaders on both sides of
the aisle that have cosponsored the bill.
There is no question that we need to clean up the airwaves.
I thank my colleagues on this subcommittee and in the Congress
for their continued support and input. We are nearing the end
zone, and I look forward to our markup next week, and I yield
to my good friend, Mr. Green from Texas, for an opening
statement.
Mr. Green. Thank you, Mr. Chairman. And I want to thank you
for your patience and perseverance on this issue. We are
holding our third subcommittee hearing, and I look forward to
our full committee markup on this legislation. I am proud to be
a cosponsor of our legislation increasing indecency fines
tenfold.
I want to welcome our panel of witnesses this morning who
are helping us put together a full and complete record before
Congress takes action on the sensitive issue of television and
radio indecency.
We have all had plenty of chances to make our opinions on
indecency known, and I want to state the most important
questions, in my view, which are unanswered. First, is the
FCC's indecency standard sufficiently clear in the eyes of the
public and the eyes of TV and radio broadcasters, both large
and small? Second, if the standards are not clear, how can we
make them clearer in the shortest possible time period? A media
task force has been suggested, and a return to industry task
force methods; and again, a code of conduct in the media, and I
think that is a good idea. We should be pleased that both NBC,
Clear Channel and the National Association of Broadcasters have
agreed to voluntary industry efforts.
Once we have standards agreed upon, the next question is
about the money. If we are going to increase FCC indecency
fines, who should pay these fines? After indecent incidents on
the airwaves, we see a round of finger-pointing and buck-
passing. I think the affiliates have a good case that they
should not bear the bulk of the fines. That is why I have
offered an amendment to indemnify affiliates from the amount
that H.R. 3717 adds to the FCC indecency fines. It seems self-
evident that a local television affiliate owner should not be
on the hook for the Super Bowl fines as they are currently.
Since the FCC doesn't levy fines on people who perform the
indecency, then the next logical step is the network. The FCC
may have the authority to fine the actual person who commits
indecency, but never has done so. But then the networks have no
incentive for time delays to edit the indecency. These
celebrities can afford a $275,000 fine. In fact, they may even
consider it an investment in the publicity, as we see from the
Super Bowl.
If you feel at risk from a renegade performance artist,
then you can include a simple clause in your contracts with
these performances. A large radio station owner recently
announced that it was their intention to do just that with
their disc jockeys. Clearly networks are at risk from the
outbursts during award shows, but networks have the best
centralized ability to edit their programming before it is
beamed nationwide, much better than requiring each affiliate
across the country to edit the same word over and over again.
Chairman Upton, again I want to thank you for your work on
this legislation and hearing, and I look forward to hearing
what we can do to make indecency standards clearer for the
public and how we can route the fines toward those who deserve
them. Thank you, and I yield back my time.
Mr. Upton. It now gives me great pleasure for the first
time to introduce my Chairman, the very good friend from the
great State of Texas, Joe Barton, the chairman of the full
committee.
Mr. Barton. Thank you, Mr. Chairman. I don't think I am
quite yet Chairman. I think we still have to vote on it
sometime today in the House. I think the House still has to
vote. But thank you for that introduction.
I do want to thank our witnesses for appearing voluntarily
here today. This committee has a long tradition of trying to do
everything possible to get witnesses on controversial issues to
be here on a voluntary basis, and I appreciate you gentlemen
and Ms. Berman for being here in that capacity.
I have an opening statement, Mr. Chairman, that I am going
to submit for the record. Just in terms of kind of an impromptu
remark, I think that we have an excellent piece of legislation
that is under way here on a bipartisan basis. Mr. Markey and
Mr. Dingell are working with Mr. Upton and the committee on our
side. We hope to go to full committee markup in the very near
future. There will be some amendments that make individual
entertainers liable. Congressman Green just talked about that.
Something that I am troubled by is that as we tighten up
the standards on the public airwaves, we still have the issue
of cable and satellite. There are some clear differences
between over the air issues and cable and satellite issues, but
to the average individual, if they don't purchase premium
channels, they don't see the difference. There is a difference,
but it is something that we need to investigate further,
perhaps not in this legislation.
I do want to commend Clear Channel Communications for the
actions your company has taken in the last several days. I
think that sets a good standard. I hope some of your
contemporaries would follow that on a voluntary basis, and
although our cable friends are not here, I do want to commend
them for some things that Chairman Upton and Chairman Powell of
the FCC have indicated to me that they are thinking about doing
on a voluntary basis to bring decency back to their medium.
So, Mr. Chairman, I look forward to this hearing, and in
the very near future I look forward to working with you and
others on a bipartisan basis to pass this excellent piece of
legislation.
[The prepared statement of Hon. Joe Barton follows:]
Prepared Statement of Hon. Joe Barton, Chairman, Committee on Energy
and Commerce
I would like to thank all of you here attending the hearing. This
is our third hearing on this subject matter in less than a month, and
this is no accident.
We all know what happened at the Super Bowl, and many of us have
heard about what happened at the Golden Globe's last year. These are
not isolated incidents. Our airwaves, our broadcasts and our very
culture are under attack. The slippery slope has simply slipped too
far, and it is time that someone to say ``stop.''
I am as appalled as most of us are by the incident that happened on
Super Bowl Sunday and the use of such language that is beginning to
become commonplace on our airwaves. I have already expressed my concern
to the FCC, and am pleased to know through many public pronouncements
that they do not support the incident at the Super Bowl nor the use of
profane language on the public airwaves.
Chairman Michael Powell of the FCC had an interesting statement in
response to the Super Bowl incident. He stated:
``I am outraged at what I saw during the halftime show of the
Super Bowl. Like millions of Americans . . . I gathered around
the television for a celebration. Instead, that celebration was
tainted by a classless, crass and deplorable stunt. Our
nation's children, parents and citizens deserve better.''
I agree Chairman Powell; we deserve better.
I would like to thank Chairman Upton. H.R. 3717 is a good first
step. It begins to say ``stop'' to the rising tide of indecency on our
airwaves. In its present form, it increases fines by tenfold for
breaches of indecency. Such an increase, I believe will begin to
empower the FCC to take our airwaves back.
I also want to seriously look at issues such as a ``three strikes''
penalty and how licenses are renewed.
Another issue that I believe must be addressed in some way is the
behavior of the individuals themselves. In the case of the Super Bowl
incident, Janet Jackson and her choreographer were about the only ones
who knew that she was going to commit the act that she did.
We heard from both Mr. Karmazin of Viacom-CBS and Mr. Tagliabue of
the NFL at our last hearing that they had no idea that what happened at
the Super Bowl was going to occur. They both mention that the dress
rehearsal for the halftime show did not include the inappropriate
removal of Janet Jackson's top. Janet Jackson, herself, has also
verified this in a statement.
A 5 minute delay, such as the one CBS instituted for the Grammy
Awards earlier this month was a good start. However, we must encourage
a better system of culpability for the actual perpetrators of lewd and
indecent acts. The present system is not strong enough, and there is
simply no incentive for a performer to behave.
For example, there is not a sufficient penalty to assess the
individual. A ``non-licensee,'' or individual under present law only
has to pay $11,000 for a violation. Moreover, this violation only can
be assessed after a formal finding by the FCC. Even after such a
finding, the individual will not be fined. Instead, they get a free
pass and simply warned not to do it again or risk up to that $11,000
amount.
Well, such ``mulligans'' may be acceptable in a casual round of
golf but are not acceptable to the millions of parents who watch our
airwaves with their children. The indecency will have occurred and the
damage will have been done.
Consequently, such a bureaucracy has made even the thought of
enforcing this provision nonexistent.
This needs to change. We must give teeth to these fines and hold
those who want to commit indecent acts on our airwaves accountable,
especially if those acts are committed willfully and knowingly.
I am pleased by those earlier comments and testimony by Chairman
Powell, as well as other members of the FCC that he wants to be tough
on this incident. I also am pleased that he plans to reverse past FCC
decisions concerning foul language and to implement a ``per se'' rule
against the use of certain words. I agree that some words by their very
nature are indecent. Nevertheless, the bottom line is that all of us,
whether we are legislators, network executives, programmers, performers
or parents, need to work to protect our children from unwarranted
attacks of indecent material.
I come to this hearing with an open mind, and will listen to the
witnesses intently. However, the recent actions do raise a lot of
questions, and I look forward to hearing answers to many of those
questions.

Mr. Upton. Thank you.
I yield to the gentleman from the great State of Michigan,
Mr. Dingell.
Mr. Dingell. Mr. Chairman, I thank you. I commend you for
calling this hearing today. I thank you for your cooperation
with the Minority, and I observe that the Minority will try and
work closely with you and our colleagues on the Majority to
achieve good legislation here.
I note that this is the subcommittee's third hearing into
the subject of broadcast indecency. Your honoring of my request
that we develop a full and complete record on the subject of
broadcast indecency is very much appreciated. With this, we can
better understand the problem before us and have an opportunity
to properly examine the benefits and the pitfalls and the
adequacy of the suggested remedies.
Today I am particularly interested in hearing discussion of
two questions: Why there continues to be so much offensive
material broadcast over the public airwaves; and, second, who
is responsible for the enforcement of proper custody of the
public trust in matters of this kind.
Based upon the two previous hearings two points have become
apparent. First, the Federal Communications Commission, under
Chairman Powell, has simply refused to effectively and fully
use its authority under the Communications Act to enforce
against broadcast indecency, particularly against those
companies that have repeatedly violated FCC's rules. The
Commission has woken from a deep slumber in a somewhat peevish
mood, and I am interested to see how their response will be as
this matter proceeds through the Congress. I would hope that
their alertness and the vigor with which they pronounce such
energy for the first time would continue unabated, although
having observed the Commission over the years, I think that
they will return to a period of tranquil rest at the earliest
possible moment. For these reasons, although I appreciate the
FCC's Chairman's newfound attention and enthusiasm on the
issue, I remain, as I have said, skeptical about how long that
enthusiasm will last. It is my experience that deathbed
conversions usually don't last long enough to secure the
payment of the doctor's bills.
For this reason, I will seek to include in the indecency
legislation a provision requiring the Commission each year in
its annual report to provide this committee a full and complete
accounting of its actions to enforce against indecent
broadcasting. That way they will inform us of what they are
doing, and perhaps focus their own attention on what they are
doing and what they should be doing. That will also allow us to
call them to account for what they do not do. Perhaps this
reporting requirement will encourage the Commission's Chairman
to maintain his acute newly found sense of virtue. Let us hope.
Second, the broadcast industry does not fully appreciate
the level of concern amongst the members of this committee
regarding the kind of broadcasting that permeates our airwaves,
and, very frankly, outrages the listenership and leads the
members of this committee and elsewhere throughout the Congress
to large numbers of complaints from concerned citizens. At
least based on the testimony during last week's hearings, it
appears that the broadcast industry seems to fault the current
indecency rules far more than it faults its own behavior. We
will see whether this panel has the same view. In my view, it
is not an adequate way to explain what is happening today.
Certainly indecency regulation is subjective, as a matter
of constitutional art, it cannot be otherwise. It is clear to
me, however, that much of the filth that we see and hear on the
public airwaves, particularly on radio, is so outrageous and
offensive that any attempt by a licensee to blame the regulator
simply demonstrates a lack of respect for the law and a
contempt for its own responsibilities as a trustee of the
public spectrum.
Legislation must then address these shortcomings. In doing
so, it must strike the proper balance between respecting the
first amendment and the rights of broadcasters thereunder, and,
second, properly protecting children from harmful, indecent
programming. It must also recognize that we are not legislating
in a vacuum. Broadcasters must compete every day with cable
networks, and any legislation must not work to unduly
disadvantage the broadcast industry, which is an important
resource, and which is full of very decent people who appear to
be pressed to a race to the bottom because of inadequate
support of decency at the Commission.
Legislation must afford the FCC greater authority to fight
indecency, and it must compel the Agency to get tough on repeat
offenders, something which the record does not indicate now
happens. It must also raise the level of potential penalties to
a point where large corporations that own multiple licenses
feel the pinch of Agency enforcement. To be fair, however, the
legislation must differentiate between those larger licensees
that often originate and syndicate indecent programming and the
smaller market broadcasters whose revenues are far smaller and
whose culpability is probably less by comparison.
Finally, many of my colleagues on this subcommittee have
suggested the committee empower the FCC to act against
excessive and graphic violence over the broadcast media that is
harmful to children. I support those efforts.
I want to thank the witnesses for appearing here today.
They are representing the finest of American broadcast
companies, and I look forward to their testimony. I thank you
for your courtesy to me, Mr. Chairman.
Mr. Upton. Thank you, Mr. Dingell.
Mr. Bilirakis.
Mr. Bilirakis. Thank you, Mr. Chairman. I, too, want to
commend you for scheduling today's hearing. I would first like
to personally welcome all of today's witnesses, but especially
my longtime friends Harry Pappas from California and Mr. Bud
Paxson from Florida.
Like all of us, we have heard from so many of our
constituents regarding their concerns about indecency on
today's television programs, and I would say from their
comments it is very apparent that they are fed up with the
current trend toward indecent programming. As a consequence, I
do believe that additional action is necessary, and H.R. 3717,
which I have cosponsored, is certainly one step in the right
direction.
As we heard during our previous hearing,some companies
consider the current fines from the FCC as the price of doing
business. This is a clear indication that the current fine
structure is not a sufficient deterrent to bad behavior. The
bill increases the penalties tenfold to $275,000 per incident
with a cap of $3 million for continuing violations. And I
strongly support that increase in forfeiture authority. I am
not sure if that is enough, quite frankly.
However, as we consider, Mr. Chairman, and I emphasized
this in the last hearing, increasing the penalties that can be
imposed upon broadcasters, I am particularly concerned about
the ability of local television affiliates to reject
programming that they consider unsuitable for their
communities.
My staff and I have spoken with a variety of individuals
regarding their relationships between the networks and the
affiliate stations. We received a wide range of perspectives on
the ability of local affiliates to preempt programming that
they find objectionable. Consequently, I believe that it is
imperative that we examine ways to clarify an affiliate's
ability to preempt programming that is unsuitable for its local
community, and I am anxious to hear from today's witnesses, get
their perspectives on this important issue. Mr. Chairman,
depending on what we hear from the witnesses today, I would
hope that we will seriously address this particular point, and
maybe even by virtue of an amendment to the basic bill.
Again, Mr. Chairman, I look forward to working with you and
our colleagues on this very important issue and moving your
bill, H.R. 3717, through the legislative process. Thank you,
sir.
Mr. Upton. Thank you.
I would recognize the gentlelady from Missouri, Ms.
McCarthy.
Ms. McCarthy. Thank you very much, Mr. Chairman.
At our last hearing, I called upon the industry to act
responsibly in the matter before us, and I commend the
witnesses who are here today for their companies' initiatives
and recent actions to make changes in policy and programming,
and I look forward very much to an opportunity to discuss those
matters with you following your testimony.
But in particular, stations like ABC and others have
grappled with how best to strengthen the live delay, and how
the public can be more aware of the V-Chip and other
educational information and content, all a part of the original
Telecom Act, and all out there to be utilized by the public,
and I appreciate all of the efforts made to make the public
aware of those.
With regard to the question of fairness raised by both
Chairman Barton and Chairman Upton, I agree with the need for
the FCC to review regulatory parity between basic cable and the
network channels, as many of you raised in your testimony
today. And I share your concern about running afoul of our
first amendment rights as something that I commented upon in
the last hearing. And I do share your concern about where we
are going with all of this.
My question to you today, and I didn't see it particularly
illustrated in any of the testimony, but I hope you will
comment on it as appropriate, is the concern about who is best
to decide what is in the community's interest? Several of you
made reference to the company you represent making that
decision. My question to you today is where are we going with
this? For example, as we air the news in the future, who will
decide how to present what is seen and viewed by the public of
all ages? Newscasts are not regulated, nor should they be. But
the sensibilities of the public are an issue, and will the news
in the future be censored or regulated by a corporate head for
America's viewers?
I would like to explore that with you in this hearing, and
I want to thank you again for being here, and, Mr. Chairman,
thank you very much for this third hearing on a very important
issue. I would yield back.
Mr. Upton. Thank you.
I would recognize the gentlelady from New Mexico, Mrs.
Wilson.
Mrs. Wilson. Thank you, Mr. Chairman. I wanted to thank you
again for holding this series of hearings and for introducing
legislation. And I wanted to thank Mr. Markey as well, who is
joining us. As a result of these hearings, a lot has happened
in the last couple of weeks, and I wanted to praise you and
also Mr. Markey for your leadership, because some good things
are starting to happen.
As I have said before, it is hard to raise G-rated kids in
an R-rated world. Families should be able to watch the Super
Bowl or to drive to work or to school with the radio on and not
have to worry about what they are going to hear.
I know that most people in this room heard what I had to
say to the CEO of Viacom, the owner of MTV and CBS and Infinity
Broadcasting, and their corporate strategy to use profanity and
indecency to drive their market share and to earn money. As I
said then, if executives in charge of the entertainment
industry do not take immediate steps to stop indecent
programming coming into our homes, the legislation we are
considering here today will only be the first step in more
aggressive action to fix the problem. At least one executive
who is testifying here today has decided to give responsible
broadcasting a thumbs up. I hope it works for his company, and
I hope others in the entertainment industry follow his lead.
I look forward to marking up this legislation in the full
committee, and I intend to work on a bipartisan basis to gain
acceptance of an amendment I intend to offer to include
indecency violations as a factor in broadcast license renewal.
I also am going to be interested in witness testimony today
about strengthening the right of local broadcasters to decline
to air programs, giving greater real control back to local
communities and their general managers who are more directly
accountable to the communities where they live.
Thank you for your leadership, Mr. Chairman, and thank you
for this hearing.
Mr. Upton. I recognize for an opening statement the
gentleman from Florida, Mr. Davis.
Mr. Davis. Thank you, Mr. Chairman.
I want to urge the witnesses in their testimony if they
will cover a few of the points that we are focused on here
today. One is a number of you, in your prepared remarks, have
urged this committee to take cable into the mix. You are aware
that the first amendment understandably limits the authority of
the Congress to act with respect to your organizations as well
as cable. You all have a lot of very able people advising you
on the range of authority available to this Congress. So please
give us some advice as to how you think that we can
appropriately deal with the issue of cable.
Second, I have talked to a number of affiliates in my area,
the Tampa Bay area, who believe that contractually and
practically speaking, they have very little ability to control
the content of the programming the networks are providing to
them. And this seems to be a topic in which the point of view
reflected, I think, in your written testimony and what some of
us are hearing are not the same. So we need to get some
resolution as to exactly what is happening out there on that
particular point.
As a parent, I would like to urge you as you reexamine your
ratings system to make sure that you are giving it the careful
attention that it deserves in making sound judgments to advise
parents to help make the right decisions to help protect their
own children. I know you all have ratings systems in place. I
just want to urge you to take this opportunity to make sure
that you have got the best system possible.
Finally, there has been a proposal, it has not been reduced
to writing yet, to provide for a more progressive form of fine
on the part of FCC that would somehow reflect the level of
revenue of the particular violator. I would appreciate your
comments on that particular point as well. Thank you very much.
Thank you, Mr. Chairman.
Mr. Upton. Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman.
Timing is everything. I happen to have with me a Brooke
Colclasure, who is an 18-year-old student from Illinois with
the National Youth Leadership Conference. It would be
interesting if she was up here asking the questions, or as a
panelist, as we talk about the media and how we can try to get
control of the public airwaves.
When I get to the opportunity to ask questions, I will ask
each of you to comment on your deployment, of your own
networks' .kids.us site, which is a project that we have been
working on in this committee to see how well you have
investigated and attempted to deploy the World Wide Web in a
child-friendly environment to make sure that kids who want to
have information on your network program can do so in a safe
and friendly environment.
That will give you time to turn back to your hired guns and
find out what the heck Shimkus is talking about. But I would
hope that you would look at that as a way to really address the
issue of how we do another aspect of protection of kids, which
is truly deploy the .kids.us kid-friendly site on the World
Wide Web. We think it can be of great help in making sure
that--another tool for parents in keeping kids safe on another
medium.
We have been through this now again--this is three times.
We look forward to questions. The voice of the public has
spoken. We will move. There are probably gaps in the
legislation which I hope we will address, but I think what is
important for me now, that we do so in a way that is
constitutionally sound, that will not get bogged down in the
courts, and we can reclaim the airwaves.
And the other thing that I hope that additional riders
which may be proposed that might not make it a truly bipartisan
bill, which could occur as this thing moves through the
process, also doesn't occur. I think the problem is clear. It
is identifiable. The public is engaged, and we should move.
So, Mr. Chairman, again, let's continue to work forward. I
thank you for this time.
Mr. Upton. Thank you.
Mr. Stupak.
Mr. Stupak. Thank you, Mr. Chairman. I want to thank you
and Mr. Markey for holding this hearing today. I want to thank
the witnesses for appearing here today. With three hearings
under our belt, it would be hard to accuse this subcommittee of
failing to do its homework on this issue.
We have learned a great deal over the past few weeks about
indecency over our public airwaves. We have learned that the
FCC has provided, at best, weak enforcement of the indecency
standard, and they can do a lot more to enforce this standard,
even without Congress pursuing a bill to increase indecency
fines.
We have learned that the networks and the media giants that
own them have at times failed to take seriously their
obligation when using public airwaves to provide appropriate
programming. They have a privilege to use public airwaves. With
that privilege comes responsibility, including the obligation
to air appropriate programming when young people are likely to
be in the audience.
That being said, I am glad to see that the industry has
recently begun to better police themselves. We have only
briefly addressed the issue of graphic television violence on
network programming. Excessive and graphic television violence
has surged as networks compete for young viewers, all in the
name of higher advertising profits. Meanwhile multiple studies
have found that this kind of TV violence has a harmful impact
on children. If indecency rules and higher fines are intended
to protect our kids, why isn't violence included under the
indecency definition?
Finally, we also need to take another hard look at the new
media consolidation rules; specifically, how more consolidation
impactsour children, on what they see on television. Indecent
and obscene programming on radio and television has become the
norm rather than the exception, as local communities are losing
their power to tell the big media conglomerates no. Meanwhile,
our affiliates have lost their right to reject network
programming that they deem offensive or inappropriate for their
community viewers.
So, Mr. Chairman, one more time I look forward to
discussing these issues with today's panel, and thank you and
look forward to working with you as we move to a markup on this
legislation.
Mr. Upton. Mr. Walden.
Mr. Walden. Thank you, Mr. Chairman. I want to thank you
for your continued efforts to find a way to clean up the
Nation's airwaves. Parents need all of the help that they can
get. Now it is clear from the testimony of our witnesses today
that the Nation's broadcasters and networks are hearing the
concerns of our constituents.
I commend you, Mr. Hogan, for dumping Bubba the Love Sponge
into the garbage disposal and for suspending Howard Stern's
program on Clear Channel stations. Mr. Stern was quoted on the
news this morning, as I was listening to the radio station, as
saying our hearings are like McCarthyism, and that he and his
sidekick, quote, woke up in a different world.
Well, you can tell Mr. Stern he is wrong on one point and
right on another. As a licensee, you and he as your on-air
talent have already agreed to operate within the rules of the
FCC and the laws of this Nation. Reminding him of that
obligation, responsibility is hardly McCarthysim.
We represent a lot of people who are simply sick and tired
of the vulgarity. However, many of us hope that indeed it is a
different world today. Your testimony and that of others on
this panel certainly would have us believe that it is, and we
welcome that. But it is also clear that despite our witnesses'
pledges to use audio and video delays, hold their own employees
accountable, and provide various training requirements, all of
which are laudatory, at least two important issues remain.
One is a lack of clear direction from the FCC. While most
of us know what obscenity and indecency and profanity are, when
the FCC hands down just a couple of notices of apparent
liability a year, there is a lack of clarity for broadcasters,
and the result is a push to the limit to grab audience share,
and to compete for that audience against completely unregulated
entertainment providers. This is a very competitive industry.
While for some the size of the fine is what will get their
attention, for most broadcasters it is probably even more
important to get consistent guidance from the Commission, and,
Mr. Chairman, I would say the hearings are giving the
Commission and the broadcasters the guidance both have needed.
Networks are digitally delaying higher-risk programming. Bubba
the Love Sponge is out, Howard Stern is on hold, and new
standards are in. I commend the networks and broadcasters for
responding to our call for action.
Second, I believe many viewers do not differentiate between
the over-the-air broadcast programming and the programming they
get through their cable and satellite systems. As I have said
before, our legislation may clean up the first five or six
channels on the family TV, but what about the remaining 800? I
recognize these are paid subscriber services, but can anyone
deny that these programs do not also have a uniquely pervasive
presence in the lives of Americans because they are sent in the
privacy of the home and are viewed as uniquely accessible to
children, even those too young to read?
If we are not going to give the FCC the authority to clean
up these channels, then the burden to do so is even greater on
those providers themselves. Now, perhaps technology provides
parents with all of the tools they need, but should they really
have to pay for trash programs they have to block?
And, finally, Mr. Chairman, despite our frustrations with
broadcasters, we all recognize their important and unique
commitment to providing public service to our communities, and
we all know they do it quite well and quite often. Most
broadcasters agree with the sentiments of this committee and
our constituents and welcome the push to improve and clean up
programming.
In this highly competitive business, we must also keep in
mind that broadcasters' only means of staying in business is to
sell advertising, whose value is tied directly to audience
share. As we affect their ability to program, we must remember
they are competing against cable and satellite providers who
both charge for their services and sell advertising, and both
of whom are unregulated when it comes to content. They produce
programming that sometimes is very successful, programs like
the Sopranos and Sex and the City. But certainly those programs
attract great audience share and are competitive. So while it
is important for the Nation's broadcasters to clean up the bad
apples, it is our responsibility not to overact to the point
that we destroy the viability of free over-the-air
broadcasting, which we all so much appreciate.
Thank you, Mr. Chairman.
Mr. Upton. I recognize the ranking member of the
subcommittee, my good friend Ed Markey from Massachusetts.
Mr. Markey. Thank you, Mr. Chairman. Thank you for having
this hearing.
From our recent hearings, we have learned a number of
things. We have learned that although 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 Commission rules, that until very recently the
Commission has not been an aggressive enforcer of its rules.
Testimony from FCC Chairman Powell that cases are still
languishing from 2 to 3 years ago are not very encouraging
indications. We also learned that although the FCC has numerous
enforcement tools, including the ability to revoke a station's
license, it appears as though the industry has largely
concluded that the Commission is a paper tiger. The rare and
paltry fine the Commission assesses have become nothing more
than a joke, and the Commission never raises license revocation
as a consequence for indecency violations, even in the most
egregious cases for repeat violators.
And, finally, we have also learned that the industry needs
to do a better job in educating parents about the tools they
already may possess or can utilize to address the myriad
concerns they raise with us about what is on TV. Parents can
use the ratings system and the V-Chip, which stems from
legislation which I authored 7 years ago. However, we have a
huge educational challenge with the TV ratings system and how
parents can use it in conjunction with the V-Chip.
Studies indicate that if a parent of a child 12 and under
has a V-Chip-ready TV set and knows that they do, that some 47
percent of such parents use the V-Chip and like it. The problem
is with the qualifiers. Almost half of those who have bought
one of the approximately 100 million V-Chip capable televisions
since 2000 are not aware that the TV possesses a V-Chip.
In addition, many parents express confusion over the TV
ratings system itself, and one major network still does not use
the comprehensive ratings system utilized by everyone else in
the television industry. The industry did a good job, and with
much fanfare after the TV ratings system was initially
finalized, in doing public service announcements and other
educational messages regarding the ratings, yet those efforts
have waned dramatically in recent years. In my view, we need a
comprehensive, industrywide campaign to address this issue.
The TV set manufacturers and electronics retailers need to
do a better job in alerting television buyers to the V-Chip, in
part because many retail employees at the stores are apparently
unaware of its existence in the TV sets that they are selling.
In addition, print media ought to include the television
ratings of programs in the television guide so that parents see
them when they look up what is on TV that day or evening.
And, finally, I believe that broadcast industry should
renew its educational efforts in order to ensure that
television ratings are well understood by parents, so that they
can assist parents. And I am going to address questions on that
subject to each one of the panelists this morning.
Specifically, I will be looking for answers today to the
following questions: One, will your network air additional
public service ads on the television ratings system, and will
those PSAs indicate how parents can use it with the V-Chip? I
will request that the networks spell out to the committee in
writing what their commitments will be in this regard, such as
how many PSAs, over what timeframe, at what times of the day,
and for how many rating points, and how long the ads will be.
Second, will your network display the television rating
icon not only at the top of the show, but also when returning
to the show after commercial breaks? This is important,
especially for parents who don't have a V-Chip set, yet who
still try to utilize the ratings system as a tool. In addition,
it assists channel surfers who land on that show during
commercials and ensures that they get a timely warning as the
show resumes.
Third, will your network provide an audio voiceover when
the ratings icon appears on the screen? If Dad or Mom is in the
kitchen, out of the room or distracted reading a newspaper,
they may not see the icon when it appears. A voiceover would
help parents hear the rating as the show begins and prompt them
to change the channel and protect their children from
inappropriate programming.
Fourth, to the extent to which your corporate parent also
includes newspapers or television guides, will you work to
include the television ratings in the television guides to
better help parents?
And with respect to cable programming, I renew my call to
the cable industry to educate parents about the TV ratings
system through PSAs as well, and in particular, I urge the
cable industry to make more useful the provisions of the Cable
Act of 1992 that permit any cable subscriber to request a
blocking mechanism to block out any cable channel parents find
objectionable. Right now if a family buys the expanded tier of
basic cable, but does not want MTV in its house, they can
request equipment from the cable operator that effectively
blocks out MTV. This is an option that many subscribers simply
do not know that they have, and we should explore ways of
improving the effectiveness of this provision, such as putting
notices in cable bills that alert parents to this.
The cable industry called me after the last hearing when I
raised this question. They told me that they want to cooperate
on this issue. So I would like to work with the broadcast and
cable industry in putting together a comprehensive plan of
education for parents, and ensuring that they understand the
technological tools which are at their disposal in order to
protect their children.
I can't thank you enough, Mr. Chairman, for holding this
hearing.
Mr. Upton. Thank you.
Mr. Terry.
Mr. Terry. Pass.
Mr. Upton. Mr. Stearns.
Mr. Stearns. Thank you, Mr. Chairman. And thank you for
holding the hearing.
I also, like my colleague Mr. Bilirakis, want to welcome my
good friend Mr. Bud Paxson, chairman and CEO of Paxson
CommunicationsCorporation from West Palm Beach, Florida. I
appreciate taking his valuable to time come here and be a
witness. So we thank you, Bud.
My colleagues, we are not here to impede the first
amendment, obviously, but we do represent constituents that are
complaining. All of us have received daily e-mails and calls
and letters demanding that we as Members of Congress take a
stand, draw a line and say no more. And I think we have done
that with this hearing, Mr. Chairman.
And I think, as pointed out earlier, we are glad that Clear
Channel has taken some action. The question that Members have
posed, would action have been taken if we had not had this
hearing? And I think a lot of us say it would not have
occurred. So we are very pleased that they have started to
institute some family viewing policies, some zero tolerance
policies, responsible broadcasting initiatives. All of this is
very good.
I think a larger question has to be is programming becoming
the lowest common denominator for a culture that is tending
toward indecency or deviancy down? And we as Members of
Congress have to say, and represent our constituents that--we
are asking that we must somehow combat this slide, whether it
is through hearings like this or through legislation.
The Supreme Court has talked about this in keeping our
children free of indecent material over the public airwaves. I
think the industry needs to return to the intent of that
standard and publicly reembrace the idea of a family viewing
policy.
In regard to this policy, I plan to offer an amendment in
the full committee--I offered it in the subcommittee--urging
NAB to reinstitute that policy. So I look forward to
increasing--to working with the chairman on that. And also I
have an amendment to increase fines on the individual offenders
who continue to exploit the airwaves for their own publicity,
and I think that would go to stemming the tide here.
I want to compliment FOX TV for their aggressive four-part
content plan among their affiliates. What the public needs to
see is not reactionary policy by these executives to avoid
fines, but genuine leadership from the industry to develop
programming that entertains and not offends, and I hope the
executives and the industry will do that. Thank you, Mr.
Chairman.
Mr. Upton. Mr. Whitfield.
Mr. Whitfield. Mr. Chairman, I am going to waive.
Mr. Upton. Mr. Cox.
Mr. Cox. Thank you, Mr. Chairman. I will just be very
brief, because I want to begin by thanking you for continuing
this series of important hearings.
Second, I want to thank you for considering, based on our
previous hearings, expanding the legislation to include not
just individual stations, but also the networks within the
scope of legislation that we are considering.
And I just want to say that this issue for me is not really
about what people get to say in public or in private. When it
comes to artistic expression or even just entertainment that
its authors would never claim aspires to art, I am a
libertarian, I don't want the government to dictate what
Americans can say in public or in private.
But we are here today for two important reasons. First,
broadcast television and radio is using public assets, the
electromagnetic spectrum, which in other hearings and other
legislation this committee is seeing auctioned off. There are
billions of dollars here in the form of subsidies. So we are
using a public good for prurient entertainment. I can't in many
cases see the difference between cable television product and
broadcast television product, but, of course, in one case
people have to pay to get their entertainment product out
electronically, and in the other case the taxpayers are paying
for it. I am missing the public purpose that is being served by
much of what we are calling entertainment here, or at least the
distinction between the parts that the taxpayers subsidize to
the tune of billions of dollars and those parts they do not.
The second reason we are here is that for many people,
turning it off isn't enough. You can't escape this. It is so
pervasive that for parents trying to protect their children,
you can't get away from it.
I just want to share, last night I was wrestling with my 5-
year-old. We had a little wrestling match on the living room
rug, and he was getting the better of me, and I didn't want to
be pinned, so I went over and sat down on the couch and said,
``Half-time.'' And he jumped up on the coffee table and ripped
off his t-shirt and said, ``Half-time show.''
Now, this kid is 5 years old. I was with him--I was with
him for the Super Bowl, and he didn't see the half-time show,
but he goes to kindergarten. And, I mean, that is what people
are talking about. That is what the popular culture is doing to
us as parents, making it very, very difficult to raise children
in America.
And what we are asking for here is some judgment, which is
so lacking, and people are making a lot of money selling things
that are very harmful to our society. And I just wish we had
better judgment and people of responsibility.
I thank you, Mr. Chairman.
Mr. Upton. At this point I would just note there are a lot
of subcommittees meeting today. I will ask unanimous consent
that all members of the subcommittee be able to offer their
opening statement as part of the record.
And I would recognize Mr. Gonzalez, a soon-to-be member of
the subcommittee, and a faithful fellow who is coming--I guess
next week it will happen, but would the gentleman like to make
an opening statement?
Mr. Gonzalez. Waive opening, Mr. Chairman.
Mr. Upton. With that, our opening statements are concluded.
[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 to examine
H.R. 3717 with respect to the FCC's enforcement role in preventing
broadcast indecency.
I am proud to be an original co-sponsor of H.R. 3717, the
``Broadcast Decency Enforcement Act of 2004.'' The efforts contained in
this measure to increase penalties ten-fold for obscene, indecent, or
profane broadcasts are a significant step towards achieving the quality
broadcasting that my constituents within the Fifth District of Ohio
have demanded. Nevertheless, I look forward to any efforts to further
strengthen this measure.
Indecency continues to invade our radio and television airwaves at
an increasing rate. This subcommittee and the FCC have taken many
recent measures to investigate and curb the tide of indecency delivered
during family viewing hours. And yet the business of telecommunications
is so lucrative that monetary penalties offer minimal recourse. The
effort to increase penalties ten-fold is significant and will have a
great impact on many stations throughout the year. However, the
exploits displayed at the Super Bowl XXXVII Halftime Show cannot be
remedied solely through monetary penalties.
The 2004 Super Bowl attracted an audience of over 143 million
viewers watching all or part of the game with an average viewership of
almost 90 million viewers. This was the most watched Super Bowl in
history and the most watched television program on any network since
Super Bowl XXXII in 1998. In addition to the Super Bowl, the post game
show reached almost 59 million viewers and the premier of Survivor:
All-Stars reached over 33 million.
As viewership rates reached an all-time high, a 30-second
television advertisement during this year's Super Bowl cost
approximately 2.3 million dollars. Since 1994, the cost of advertising
in the Super Bowl has risen over 250 percent! With soaring ad revenue
and rising viewship, we must impose upon the telecommunications
industry additional incentives to produce quality programming.
I look forward to hearing from the well-balanced panel of witnesses
regarding standards of decency at future live television performances.
In addition, I look forward to examining the scope of the pending
legislation as well as proposals for furthering the penalties available
to the FCC. 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.
This is now the third hearing on this matter in the last two
months. We've heard from the FCC, broadcasters, community activists and
other interested parties about what is happening on the public's
airwaves, and how we can act as a Congress to enact proper
disincentives to indecent broadcasts without sullying the First
Amendment.
The consensus thus far has been that Chairman Upton's bill, of
which I am a cosponsor, is narrowly tailored enough to combine with
increased efforts at the FCC to curb profanity and nudity in programs
where Americans simply are not expecting to find them. These aren't
late night, pay-per-view instances of indecency, but family-hour,
family-watched programming.
It's difficult to apply historical norms to what we do and say in
society, as we live in ever-changing times. However, regardless of the
decade, we can expect B and demand B that people act in a civil manner
when they are afforded access to the public's airwaves.
Some have taken the Committee's actions thus far as an affront to
free speech, or an imposition of censors on programming B or worse yet,
may be trying to use it as an effort to put the federal government into
the production business. None of this is the case. We are simply
updating the penalties for indecent broadcasts. Broadcasters have
responded by establishing or recommitting to standards for the safe
harbor period of the programming day. They are adopting delays for live
programming, ensuring on-air talent has some skin in the game should
their behavior result in fines, and realizing they have an obligation
to a civil society.
The reason I support the Chairman on this matter is that he has
avoided pursuing prohibitions on words, or changes that could rewrite
the indecency standard, or legislation that may not pass constitutional
muster. This is a simple and focused bill that has already paid
dividends by anyone's standards, and I would like to commend him for
his actions on the matter of indecency. Thank you Mr. Chairman, and I
look forward to working with you to pass this bill which appears to be
long overdue.
I yield back the balance of my time.
______

Prepared Statement of Hon. Lee Terry, a Representative in Congress from
the State of Nebraska

Mr. Chairman, I would like to thank you for continuing to draw
attention to this topic. I would also like to thank our distinguished
panel of witnesses, including Mr. Pappas, for being here today. I would
like to take a moment to point out that Mr. Pappas owns KMTV in Omaha,
in my District, so I'm particularly interested in hearing what he has
to say.
Mr. Chairman, I wish that this hearing wasn't necessary. But I
recognize that, while cable television content is looked at as envelope
pushing, much--or quite frankly, most--of the television programming
that has been the subject of indecency complaints by the public is
network-originated programming. And I believe that our principal
purpose in taking a hard look at legislation is to create an economic
disincentive from airing this offensive material.
In order to achieve that, I believe we must ensure that the larger
fines we are empowering the Federal Communications Commission to levy
be applied against the originators of such content, with limited
indemnification for the affiliates who--as in the Super Bowl case--were
simply retransmitting live network programming and had no ability to
shield their viewers from the ``surprise'' offensive content.
I am pleased that today we will be privy to, thanks to our
witnesses, the affiliates' perspective of this debate. I'm also eager
to hear what the rest of the distinguished panel has to say.
I am dedicated to working with all parties involved to encourage
the entertainment industry to show the responsibility it's been lacking
for so long.
As many in the room know, whenever something indecent is aired,
it's usually the local broadcasters who receive the brunt of
complaints. It is important to get the affiliates perspective, since
they are the ones who have the closest contact with the public.
Thank you, Mr. Chairman, and I look forward to hearing the
testimony today.

Mr. Upton. We welcome our very good panelists before us
this morning, and we will be led off by Mr. Alex Wallau,
President of ABC TV Network; Ms. Gail Berman, President of
Entertainment for Fox Broadcast Company; Dr. Alan Wurtzel,
President of Research and Media Development for NBC; Mr. Bud
Paxson, Chairman and CEO of Paxson Communications; Mr. John
Hogan, President and Chief Executive Officer of Clear Channel
Radio; and Mr. Harry Pappas, Chairman and Chief Executive
Officer of Pappas Telecasting Companies.
Ladies and gentlemen, we appreciate your compliance with
our subcommittee rules on supplying your testimony in advance.
I think all of us had an opportunity to look at it last night.
Your opening statements are made part of the record in its
entirety, and we would like you to spend 5 minutes summarizing
that testimony before we go to questions. And, Mr. Wallau, we
will lead off with you. Welcome.

STATEMENTS OF ALEX WALLAU, PRESIDENT, ABC TELEVISION NETWORK;
GAIL BERMAN, PRESIDENT OF ENTERTAINMENT, FOX BROADCASTING
COMPANY; ALAN WURTZEL, PRESIDENT, RESEARCH AND MEDIA
DEVELOPMENT, NATIONAL BROADCASTING COMPANY; LOWELL W. ``BUD''
PAXSON, CHAIRMAN AND CEO, PAXSON COMMUNICATIONS CORPORATION;
JOHN HOGAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER, CLEAR
CHANNEL RADIO; AND HARRY J. PAPPAS, CHAIRMAN AND CHIEF
EXECUTIVE OFFICER, PAPPAS TELECASTING COMPANIES.

Mr. Wallau. Thank you. And good morning, Chairman Upton,
Mr. Markey and members of the committee. I am Alex Wallau,
president of the ABC Television Network. We at ABC and the Walt
Disney Company take our roles as broadcasters and stewards of
the public airwaves very seriously. We never forget our status
and responsibilities as guests in the homes of the viewers, and
we strive always to honor the trust they have placed in us.
Certainly we do not allow material on our air that would
violate the law against indecent broadcasts, and the guidelines
issued by the Federal Communications Commission interpreting
that law, but our standards go far beyond the indecency rules.
In scheduling our shows, and in reviewing each episode of
those shows, we take great care to make sure that each is
suitable for its time period and intended audience. ABC has a
24-person standards and practices department that carefully
reviews all episodes of our prime-time dramas and comedies, our
reality shows and specials, our made-for-television movies and
theatrical motion pictures, and children's programming, as well
as commercials, promos and public service announcements to
ensure that they meet our standards for taste and
responsibility. This includes a detailed review of language,
themes, plots and visuals.
Live prime-time entertainment programming is subject to an
audio and video delay mechanism staffed by experienced
broadcast standard editors. We have used delay mechanisms on
live music and comedy award shows and other programming very
effectively for more than a decade to prevent inappropriate
audio and video material from being broadcast on the ABC
television network. This Sunday we will employ our delay
mechanism during our prime-time telecast of the Academy Awards,
the first time in the 76-year history of the awards that such a
delay will be used.
We believe strongly that we have a responsibility to enable
our viewers to make informed choices about the programs they
want to watch and they want their children to watch. For this
reason we go to great lengths to let viewers and parents know
ahead of time that a program may contain material not suitable
for children, or simply not in keeping with their own taste or
sensibilities.
Every episode of our entertainment programs carries an on-
screen rating indicating its age suitability and, when
appropriate, a designation indicating the presence of adult
language or content. These ratings are carried in an on-screen
icon at the beginning of every show. When appropriate, we add a
full-screen video and audio viewer discretionary advisory at
the start of a program to alert audiences that this show
contains material some may find objectionable. Such advisories
are also included in on-air promotional messages for the show.
Additionally the rating program is encoded within the show to
enable blocking by TV sets with the V-Chip. Millions of such
sets are in American homes today.
We agree with Congressman Markey's suggestion that a
renewed public education effort about the V-Chip is useful and
worthwhile, and we pledge that we will once again support such
a campaign with public service announcements and related
efforts.
We will also pursue other steps to make information about
our programs, including their rating, even more accessible to
viewers. For example, we intend to place the rating icon on the
screen after every commercial break; another good suggestion by
Congressman Markey. When appropriate, we will repeat the full-
screen viewer discretion advisory with audio at later points in
a broadcast. We will also add the ratings and advisory to our
on-line Internet listings.
We go to great lengths and expense to ensure that our
programming violates neither FCC rules and regulation on
indecency, nor even our more stringent standards. And while we
are determined to maintain those high standards, as over-the-
air broadcasters, we feel an obligation to question the lack of
regulatory parity that exists between us and basic cable
channels in this regard.
As you know, the current rules that apply to broadcasters
are very different than those that apply to cable or satellite
providers. We don't believe that this distinction makes such
sense in today's world, where the combined audience for the
cable and satellite channels exceeds a combined audience for
the broadcast channels.
For the parent or child surfing with a remote control in
the one of the 84 percent of American homes that receive pay
television, the distinction between broadcast and basic cable
or satellite channels simply no longest exists. Indeed it seems
that some of the programming that people have in mind when they
complain about objectionable programming and television
material is actually on cable, not broadcast. Not only does
this call into question the effectiveness of the indecency
rules, it also raises troubling issues of fairness that will
only be exacerbated by any efforts to impose even more
stringent requirements on broadcasts alone.
Mr. Chairman, one argument that has been made during a
series of hearings is that the broadcast affiliates, the
affiliated stations that are distributors of our signal, are
powerless to preempt programming that they deem to be
objectionable. Nothing could be farther from the truth. In our
affiliation agreements our affiliates are guaranteed the right
to reject or refuse network programming which the station
reasonably believes to be ``unsatisfactory, unsuitable or
contrary to the public interest.''
Though our affiliates have this preemption right, they
choose to exercise it very rarely to reject programming they
believe to be indecent or otherwise unsuitable for reasons of
content. When they do, we respect and abide by their decisions.
For example, two ABC affiliates have chosen to preempt the
series NYPD Blue entirely since it premiered in 1993. They
remain valued affiliates of our network. Affiliates also have
the right to decline to carry individual episodes of our
entertainment series if they are uncomfortable with their
content, and they occasionally do so.
In conclusion, we at the ABC Television Network are proud
that millions of Americans rely on us every day to bring them
quality television programming. We will continue to make every
effort to honor their trust. Thank you, Mr. Chairman.
[The prepared statement of Alex Wallau follows:]
Prepared Statement of Alex Wallau, President, ABC Television Network
Good Morning Chairman Upton, Mr. Markey and Members of the
Subcommittee. I am Alex Wallau, president of the ABC Television
Network.
We at ABC and The Walt Disney Company take our role as broadcasters
and stewards of the public airwaves very seriously. We never forget our
status and our responsibilities as guests in the homes of our viewers,
and we strive always to honor the trust they have placed in us.
Certainly, we do not allow material on our air that would violate
the law against indecent broadcasts and the guidelines issued by the
Federal Communications Commission interpreting that law. But our
standards go far beyond the indecency rules. In scheduling our shows,
and in reviewing each episode of those shows, we take great care to
make sure that each is suitable for its time period and its intended
audience.
ABC has a 24-person Standards and Practices department that
carefully reviews every episode of our reality shows, specials,
primetime dramas and comedies, made for television movies, theatrical
motion pictures, and children's programming--as well as commercials,
promos, and public service announcements--to ensure that it meets our
standards for taste and responsibility. This includes a detailed review
of language, themes, plots, and visuals.
Live prime-time entertainment programming is subject to an audio
and video delay mechanism staffed by experienced Broadcast Standards
editors. We have used delay mechanisms on live music and comedy awards
shows and other programming very effectively for more than a decade to
prevent inappropriate audio or video material from being broadcast on
the ABC television network. This Sunday, we will employ our delay
mechanism during our primetime telecast of the Academy Awards, the
first time in the 76-year history of the awards that such a delay will
be used.
We believe strongly that we have a responsibility to enable our
viewers to make informed choices about the programs that they want to
watch and that they want their children to watch. For this reason, we
go to great lengths to let viewers and parents know ahead of time that
a program may contain material not suitable for children or simply not
in keeping with their own tastes or sensibilities.
Every episode of our entertainment programs carries an on-screen
rating indicating its age suitability and, when appropriate, a
designation indicating the presence of adult language or content. These
ratings are carried in an on-screen icon at the beginning of every
show. When appropriate, we add a full screen video and audio ``Viewers
Discretion'' advisory at the start of the program to alert audiences
that the show contains material some may find objectionable; such
advisories are also included in on-air promotional messages for the
show.
Additionally, the rating for each program is encoded within the
show to enable blocking by television sets with the v-chip. Millions of
such televisions are in American homes today. We agree with Congressman
Markey's suggestion that a renewed public education effort about the v-
chip would be useful and worthwhile, and we pledge that we will once
again support such a campaign with public service announcements and
related efforts.
We will also pursue other steps to make information about our
programs, including their rating, even more accessible to our viewers.
For example, we intend to place the rating icon on the screen after
every commercial break, another good suggestion by Congressman Markey.
When appropriate, we will repeat the full-screen ``Viewers Discretion''
advisory at later points in a broadcast. We will also add the ratings
and advisories to our on-line internet listings.
We go to great lengths and expense to ensure that the programming
we air violates neither FCC rules and regulations on indecency nor our
own more stringent standards. And while we are determined to maintain
these high standards, as over-the-air broadcasters, we feel an
obligation to question the lack of regulatory parity that exists
between us and basic cable channels in this regard. As you know, the
current rules that apply to broadcasters are very different from those
that apply to cable or satellite providers. We don't believe that this
distinction makes much sense in today's world where the combined
audience for the cable and satellite channels exceeds the combined
audience for the broadcast channels. To the parent or child surfing
with a remote control in one of the 84 percent of American homes that
receive pay television, the distinction between broadcast and basic
cable or satellite channels simply no longer exists. Indeed, it seems
that some of the programming that people have in mind when they
complain about objectionable television material is actually on cable,
not broadcast. Not only does this call into question the effectiveness
of the indecency rules; it also raises troubling issues of fairness
that would only be exacerbated by any efforts to impose even more
stringent restrictions on broadcasters alone.
Mr. Chairman, one argument that has been made during your series of
hearings is that the broadcast affiliates are powerless to pre-empt
programming that they deem to be objectionable.
Nothing could be further from the truth. In our affiliation
agreements, our affiliates are guaranteed the right to reject or refuse
network programs which the station reasonably believes to be
``unsatisfactory, unsuitable or contrary to the public interest.''
Though our affiliates have this pre-emption right, they choose to
exercise it very rarely to reject programming they believe to be
indecent or otherwise unsuitable for reasons of content. When they do,
we respect and abide by their decisions. For example, ABC affiliates in
Biloxi and Meridian, Mississippi have chosen to preempt the series
``NYPD Blue'' entirely ever since it premiered in 1993. They remain
valued affiliates of our network. Affiliates also have the right to
decline to carry individual episodes of our entertainment series if
they are uncomfortable with their content, and occasionally do so.
In conclusion, we at the ABC Television Network are proud that
millions of Americans rely on us every day to bring them quality
television programming. We will continue to make every effort to honor
their trust.

Mr. Upton. Thank you.
Ms. Berman.
Hit the mike button on there. You of all people should know
that.
Ms. Berman. I know. You would think I was technologically
savvy, wouldn't you?

STATEMENT OF GAIL BERMAN

Ms. Berman. Good morning, Chairman Upton, Ranking Member
Markey, and members of the subcommittee. I appreciate the
opportunity to appear before you today to talk about the very
difficult and complex issue of broadcast indecency. Before
proceeding, let me say that we have heard you, and we are
already taking steps to address this important issue.
I approach this subject wearing two hats: One as the
president of entertainment for the Fox Broadcasting Company,
and one as the mother of 11-year-old twins. As a network
president I have heard and as a parent I understand the
concerns being expressed by the American public and this
subcommittee that television content can at times be
inappropriate for children. At the same time, I think we all
recognize that the first amendment requires us to tread lightly
when it comes to translating concerns about television content
into government regulation.
In the first instance these competing concerns can best be
addressed by the voluntary efforts of the broadcast industry.
Last week Fox announced the adoption of an aggressive four-part
plan designed to ensure our content on television is both
appropriate and appropriately viewed. This plan recognizes
first and foremost that we have a responsibility to air
programming that complies with the law and takes into account
the sensibilities of our viewing public. Under the first part
of this plan, Fox has improved procedures for preventing
inappropriate content on live entertainment programming. We are
all aware of the now infamous words and actions by talent
appearing during the super Bowl half-time and on award shows,
including regretful incidents that occurred on Fox during the
Billboard Music Awards.
To help ensure this does not happen again, we have added
personnel and equipment to our delay process for live shows to
permit review by multiple teams, each of which has the
authority to remove audio or video content that is deemed
inappropriate.
A second step under the Fox plan is improvements to our
Broadcast Standards and Practices Department to address nonlive
programming. These efforts include all shows must now be
delivered to Fox in a timely manner to allow for adequate
standards review. The creative executives and producers of all
Fox shows are advised that broadcast standards is the single
greatest priority for the network, and additional personnel
have been hired to ensure onsite supervision of every
unscripted program.
To educate our creative executives, producers and writers,
we have undertaken the following: Fox conducted an
unprecedented seminar with panels that consisted of
representatives from public interest groups, including Brent
Bozell of the Parents Television Council, the government, and
executives and producers from other entertainment companies to
provoke thoughtful discussion of the many complex issues
surrounding indecent and violent programming. And importantly,
the seminar was attended by virtually every creative executive
in Fox's entertain divisions.
Fox is entering into a consultative relationship with the
Kaiser Family Foundation whose work in dealing with the effect
of television on children is widely respected.
The third piece of Fox's content plan is an educational
campaign designed to provide information about the
underutilized V-Chip and ratings system which can help parents
control what their children watch on television.
We are partnering with Thomson/RCA to launch this week a
national print advertising campaign with ads in the Washington
Post, USA Today and Newsweek. We are aggressively airing Fox's
V-Chip/ratings PSA on the network and on our broadcast and
cable channels. The Fox News Channel will produce a news
special on the indecency issue, including information about the
V-Chip and ratings system. And the Fox on-screen ratings
depicter is being redesigned so that it is much more prominent
during the 15 seconds it is on screen, and we are making sure
that ratings are prominently displayed on the Fox.com Website.
The fourth piece of Fox's content plan is a reaffirmation
that our affiliates have an unequivocal right to reject network
programming that they reasonably believe is unsuitable. Fox
hopes this reaffirmation removes any remaining impediment to
working cooperatively with our affiliates and other
broadcasters at the NAB Summit on Indecency.
I am proud of the program Fox has put together. We feel it
strikes the right balance between the responsibilities of Fox
as a broadcaster, the rights of parents to decide what
programming is appropriate for their children and the
requirements of the first amendment. Parental choice is
crucial, given that the views of individual parents about what
is appropriate for their children may vary widely.
In closing, I would like to confirm that we at Fox have
heard your concerns loud and clear. We sincerely regret that a
few instances of inappropriate programming have overshadowed
the good shows we proudly air on Fox every week. It is for this
reason that we have responded so aggressively to address
concerns about indecency. Thank you for the opportunity to
appear before you today. I welcome you questions.
[The prepared statement of Gail Berman follows:]

Prepared Statement of Gail Berman, President of Entertainment, Fox
Broadcasting Company

Chairman Upton, Ranking Member Markey, and Members of the
Subcommittee, I appreciate the opportunity to appear before you today
to talk about the very difficult and complex issue of broadcast
indecency. And before proceeding further with my statement, let me say
that we have heard you and we are already taking steps to demonstrate
that we understand the importance of this issue.
I approach this subject wearing two hats: one as the President of
Entertainment for the Fox Broadcasting Company, and one as the parent
of eleven-year-old twins. As a network President I have heard, and as a
parent I understand, the concerns being expressed by the American
public and by this Subcommittee that television content can at times be
inappropriate for children, particularly during live events that are
widely viewed as ``family friendly.'' At the same time, I think we all
recognize that the First Amendment requires us as a society to tread
lightly when it comes to translating concerns about television content
into government regulation.
In the first instance, these competing concerns can best be
addressed by the voluntary efforts of the broadcast industry. Last
week, FOX announced the adoption of an aggressive four-part plan
(attached to this testimony) designed to ensure our content on
television is both appropriate, and appropriately viewed. This plan
recognizes, first and foremost, that we have a responsibility to our
viewers to air programming that complies with the law, and takes into
account the sensibilities of the viewing public. Thus, we have taken
steps to improve our broadcast standards procedures for live and
scripted programming, to educate our creative executives, producers and
writers, and to better inform parents about the tools available to
control what their children watch.
Under the first part of this plan, FOX has adopted new procedures
for preventing inappropriate content on live entertainment programming.
We are all aware of the now infamous incidents of the use of
inappropriate words or actions by talent appearing on awards shows and
during the Super Bowl half-time. Unfortunately, we have experienced
incidents of this nature on the FOX network during the Billboard Music
Awards. All of us at FOX regret that the procedures we had in place did
not prevent the live broadcast of inappropriate language, and we have
now implemented improved procedures to help ensure that it does not
happen again. These include:

Adding personnel and equipment to our delay process for live shows to
permit review by multiple teams, each of which has the
authority to remove audio or video content that is deemed
inappropriate for broadcast television;
Investing in additional equipment to ensure that the time-delay
system includes redundant hardware to protect against equipment
failure during live events; and
Adding a time delay to all live syndicated programming produced by
Twentieth Television.
A second step under the FOX plan is improvement of our Broadcast
Standards and Practices Department to address non-live programming.
These efforts include:

All shows must now be delivered to FOX in a timely manner to allow
for adequate standards review;
The creative executives and producers of all FOX shows are advised
that broadcast standards is the single greatest priority for
the network; and
Additional personnel have been hired to ensure on site supervision of
each and every unscripted program.
To educate our creative executives, producers and writers of non-
live programming on the sensitivities surrounding the indecency issue,
we have undertaken the following:

FOX conducted an unprecedented, half-day seminar to provoke
thoughtful discussion of the many complex issues surrounding
indecent and violent programming, including the First
Amendment. This seminar, which was held on February 5, 2004 in
Los Angeles, was attended by virtually every creative executive
in FOX's television, cable, television studio, and motion
picture divisions; and
FOX is entering into a consultative relationship with the Kaiser
Family Foundation, whereby twice a year, Kaiser will brief me
and other top creative executives at the network to discuss how
FOX can best incorporate sexual health messages into story
lines in a responsible way.
The third piece of FOX's content plan is an educational campaign
designed to provide information about the V-Chip and ratings system,
which can help parents control what their children watch on television.
I think we can all agree that, while the V-Chip and ratings system in
concept makes a lot of sense, it is being underutilized. In order to
make information about this system more widely available, we are
undertaking the following initiatives:

Partnering with Thomson/RCA to launch a national print advertising
campaign targeting parents. That campaign was launched this
week with ads in the Washington Post, USA Today, and Newsweek;
Aggressively airing FOX's V-Chip/ratings public service announcement
on the network during prime time, on all 35 FOX owned stations,
and on Fox Sports Networks' 12 owned-and-operated regional
sports networks, FX, The National Geographic Channel, Fox Movie
Channel, Speed Channel, Fox Sports World, FUEL, and the TV
Guide Channel;
The Fox News Channel will be producing a news special that examines
all sides of the indecency issue, including information about
the V-Chip and ratings system, for airing on the Fox News
Channel and for distribution to other FOX programming entities;
and
Redesigning the FOX on-screen ratings depicter so that it is much
more prominent during the 15 seconds it is on screen at the
start of every rated show on FOX, and making sure ratings are
prominently displayed on the fox.com website.
Fourth, the FOX content plan reaffirms that our affiliates have an
unequivocal right to reject network programming that they reasonably
believe is ``unsatisfactory, unsuitable or contrary to the public
interest.'' FOX hopes that this reaffirmation of the contractual rights
of FOX affiliates removes any remaining impediment to working
cooperatively with our affiliates and other broadcasters at the All-
Industry Summit being hosted by the National Association of
Broadcasters.
I am proud of the program FOX has put together. We feel it strikes
the right balance between the responsibilities of FOX as a broadcaster,
the rights of parents to decide what programming is appropriate for
their children, and the very important First Amendment considerations
at stake. Parental choice is crucial, given that the views of
individual parents about what is appropriate for their particular child
to watch at any given age may vary widely, depending on the maturity of
the child, the family's values, or a parent's views about the quality
of a particular show. We feel that educating parents about the V-Chip/
ratings system is the most respectful way of ensuring that parents have
the tools to make wise decisions for their children.
In closing, I would like to affirm that we at FOX have heard your
concerns loud and clear. We sincerely regret that a few incidents of
inappropriate programming have overshadowed the good shows we proudly
air on FOX every week. It is for this reason that we have responded
aggressively to address concerns about indecency.
Thank you for the opportunity to appear before you today, and I
welcome your questions.
______

FOX Four-Part Content Plan

1. New Procedures for Ensuring Appropriate Content on Live
Entertainment Programming. With the immediacy of live television comes
the possibility that performers will spontaneously deviate from the
script and do or say something that is offensive to some viewers. In an
effort to reduce the risks associated with live entertainment
broadcasts, FOX has invested significant time and resources in order to
implement several compelling enhancements to its pre-existing time-
delay system and operational protocols.

FOX is adding personnel to permit simultaneous but parallel and
separate review of live programming by up to four separate
teams. Each team will have their own set of equipment that will
allow them to independently remove audio and video that is
deemed inappropriate. FOX is undertaking extensive training of
team members to ensure the highest possible level of
performance in this important function.
FOX has invested in additional equipment to ensure that the entire
time-delay system includes redundant hardware to protect
against equipment failure during live events.
FOX is adding a time delay to all live syndicated programming
produced by Twentieth Television, including Good Day Live and
On Air With Ryan Seacrest.
FOX will continue to monitor and improve its procedures for live
programming as developments occur.
2. New Procedures for Ensuring Appropriate Content on Scripted and
Unscripted Programming. Significant changes have been made to FOX's
Broadcast Standards and Practices Department (``BSP'') to improve the
robustness of its implementation of FOX's internal broadcast standards.
These changes include:

Taking steps to ensure timely delivery of all shows for review by
FOX's BSP;
Ensuring the presence of a BSP person on site to supervise each and
every unscripted program;
Providing guidelines to creative executives and producers for all
programs, conducting a preliminary production meeting with them
to discuss various standards issues, and advising them that
broadcast standards is the single greatest priority for the
network;
Changing the reporting of the BSP to the President and CEO of FOX
Networks Group;
Hiring additional BSP personnel to ensure maximal implementation of
these changes.
FOX Content Seminar. On February 5, 2004, Fox Entertainment Group
conducted an unprecedented, half-day seminar for FOX executives
designed to provoke thoughtful discussion on the issues
surrounding indecent and violent programming on television.
This seminar was attended by virtually every creative executive
in Fox's television, cable, television studios, and motion
picture division. Enclosed is a copy of the agenda for that
program.
Consultative Relationship with Kaiser Family Foundation. At least
twice a year, Kaiser will brief the top creative executives at
FOX to discuss the results of ongoing research by Kaiser, and
on how FOX programs can best incorporate health-related
messages into story lines in a responsible and accurate way. In
addition, FOX will consult with Kaiser on a periodic basis to
ensure that its treatment of sensitive health-related issues in
Fox programming is done responsibly.
3. V-Chip/Ratings Educational Campaign. In addition to ensuring the
appropriateness of live and scripted programming for its audience, FOX
believes it is vital to provide parents with the knowledge and tools
they need to help them regulate and control the images and words their
children are exposed to on television. This education is necessary
where different parents have different ideas about what programming
content is appropriate for their individual children. The campaign will
educate parents on how to use the V-chip and ratings system to assist
them in making decisions about responsible television viewing. The
campaign will include the following components:

FOX/Thomson Partnership. Thomson/RCA, an electronics manufacturer
with a leading market share of TV sets in the United States,
will partner with FOX to launch a national print advertising
campaign, with buys in daily newspapers, weekly and monthly
magazines targeted at parents. Enclosed is a copy of the
advertisement that will be used in that campaign. In addition,
Thomson/RCA and FOX will work together on other projects to
improve the visibility of the V-Chip with consumers and in
retail stores.
FOX's V-Chip/Ratings Public Service Announcement (``PSA''). Will be
aggressively aired on Fox's 35 owned and operated television
stations, and during prime time on the FOX network. Enclosed
with this letter is a videocassette copy of this PSA. In
addition, FOX's V-Chip/ratings PSA will be more prominently
displayed on the fox.com website. Finally, this PSA will run on
Fox Sports Networks' 12 owned-and-operated regional sports
networks, and on FX, The National Geographic Channel, Fox Movie
Channel, Speed Channel, Fox Sports World, FUEL, and the TV
Guide Channel.
Fox News Channel Program on V-Chip/Ratings. Given the significant
news value of the program content issue, the Fox News Channel
has decided to produce a special one-hour news program devoted
to the issue of indecency. After airing on the Fox News
Channel, this program will be made available to other Fox
programming entities for wider distribution. In addition, this
program will be distributed to parent/teacher groups and will
be available on the fox.com website.
Increased Prominence of FOX Ratings Information. FOX will redesign
its on-screen ratings depicter so that it is more prominent to
viewers. These ratings, which appear on air for 15 seconds,
will be more accessible to parents who may be in the process of
deciding at the beginning of a show whether it is appropriate
for their children. The ratings for individual FOX programs
will also be prominently displayed on the fox.com website.
Finally, the FOX website will include a prominently displayed
guide for parents that contains basic and easy-to-understand
information on the V-Chip/TV ratings system.
4. Ongoing Efforts. FOX clarifies and reaffirms the unequivocal
contractual right of FOX affiliates to reject network programming that
it reasonably believes to be ``unsatisfactory, unsuitable or contrary
to the public interest.'' FOX hopes this clarification removes any
remaining impediment to working cooperatively with its affiliates and
other broadcasters at the National Association of Broadcaster's All-
Industry Summit, to pursue additional voluntary avenues for promoting
programming responsibility. In addition, FOX will continue to consider
improvements to its broadcast standards efforts, and additional
initiatives related to the program content issue.

Mr. Upton. Thank you.
Dr. Wurtzel.

STATEMENT OF ALAN WURTZEL

Mr. Wurtzel. Thank you, Subcommittee Chairman Upton and
Congressman Markey, Full Committee Chairman Barton, and
Congressman Dingell and members of the subcommittee. Thanks for
providing NBC with the opportunity to address the important
matter of broadcast responsibility as well as H.R. 3717. I am
Alan Wurtzel, the president of research and media development
and the chief executive for broadcast standards and practices
at NBC.
As the head of NBC Standards and Practices Group, I can
commit to you without qualification that we take seriously our
obligation to our viewers not to air programming that is
indecent, profane or obscene. NBC has been committed to doing
so since the earliest days of black and white television, and
we continue to honor that obligation. As an over-the-air
broadcast network, our goal is to reach a large, diverse
viewing audience with programming that is appropriate,
acceptable and consistent with all congressional and FCC
requirements.
There is absolutely no question that any indecent content
on our network entertainment programming is completely
antithetical to NBC's core beliefs. Accordingly, NBC has
committed the necessary resources to fulfill its obligation to
broadcast appropriate content.
In NBC Standards and Practices Department, we maintain a
fully staffed team of 17 experienced professionals whose only
job is to ensure that both the programming and the commercial
advertising aired on the NBC network are consistent with NBC's
own high standards, and we believe that NBC's internal policies
and safeguards have been remarkably successful in preventing
obscene, indecent or profane programming from airing on our
network, especially in light of NBC's long history with live
television, and considering the fact that NBC transmits
literally thousands of hours of network programming every year.
We are proud of this distinguished record.
So within this historical context, NBC has previously
expressed its sincere regret and does so again about the
entertainer Bono's spontaneous and unfortunate choice of an
unacceptable word during a live broadcast of the 2003 Golden
Globes. Bono's utterance of a clearly offensive word was
completely unexpected by everyone involved in the live
broadcast. That isolated incident stands in stark contrast to
NBC's long history of broadcasting live programming free of
inappropriate content.
The Bono incident has caused NBC to take additional steps
to protect our viewers. We have instituted the routine practice
of running all live award shows on a 10-second video and audio
delay. And NBC continues to impress upon producers and talent
that the use of this delay in no way absolves them from their
responsibility to provide programming that is consistent with
NBC standards.
As a further precaution we have increased the voluntary TV
rating category assigned to live entertainment programming to
remind parents that the programming may include live,
spontaneous, and unpredictable content. And we support Mr.
Markey's suggestion to increase the exposure of the V-Chip and
our ``The More You Know'' PSA campaigns.
NBC's affiliates also benefit from these enhanced
safeguards. Moreover, under NBC's affiliate contracts and the
FCC rules, every NBC affiliate has the right to reject or
preempt any program if that affiliate reasonably believes that
such programming is unsatisfactory, unsuitable or otherwise
contrary to the public interest in its local community. For
example, we have worked with--the NBC affiliate for years in
Salt Lake City preempts Saturday Night Live every week because
the station believes that the program is incompatible with
their prevailing community standards, and we respect that
decision.
NBC is also extremely sensitive to concerns about TV
violence. In the mid-1990's NBC conducted a comprehensive
review of its prime-time programming. The result was the
development of an essentially nonviolent prime-time schedule.
Current NBC prime-time programs rarely, if ever, include
graphic depictions of interpersonal violence. NBC's long-
running Law and Order series, I think, is a good example of
that approach. Rather than show the actual act of violence, the
series focuses on the negative social and human consequences of
violence and deals with the legal ramifications facing those
who would commit violent acts.
To NBC and our stations, no fine that we might pay to the
FCC is ever dismissed out of hand as merely doing the cost of
business. However, NBC does recognize that the current limits
may have hindered the FCC's ability to deter the atypical
broadcast licensee that commits repeated and intentional
violations. Accordingly, NBC supports H.R. 3717 as introduced,
which will increase the statutory maximum of FCC penalties
tenfold. NBC would also be pleased to participate in a
voluntary industrywide initiative involving all program content
distributors, broadcasters, cable operators and direct
broadcast satellite providers.
As you have heard, but it is worth repeating, the reality
is that 85 percent of TV households receive their television,
both broadcast stations and cable networks, over cable and DBS,
and for those viewers all channels are equal, just a click of a
remote away.
Several members of the subcommittee as well as several FCC
Commissioners have called for such an industrywide effort. We
at NBC applaud their vision and welcome the opportunity to
participate in an appropriate, all-industry initiative.
In conclusion, I want to remind everyone that for over half
a century the NBC Television Network together with its
affiliate stations has provided quality news and entertaining
programming to the Nation's television households. Recently new
forms of media competitors have arrived, many of which are
subject to far fewer limitations on their program and
advertising content than are we. But despite these competitive
challenges, NBC continues its commitment to quality through its
standards and practices review process. We believe it is both
good business and responsible corporate citizenship to ensure
that our programming is compatible with our standards,
standards that are responsive to our affiliates, to our
advertisers and, most importantly, to our viewers, and we have
every intention of continuing with that commitment.
Thank you. I welcome the opportunity to answer any
questions you may have.
[The prepared statement of Alan Wurtzel follows:]

Prepared Statement of Alan Wurtzel, President, Research and Media
Development, and Chief Executive, Broadcast Standards and Practices,
NBC

Subcommittee Chairman Upton and Congressman Markey, Full Committee
Chairman Barton and Congressman Dingell, and Members of the
Subcommittee, thank you for providing NBC with the opportunity to
address the important matter of broadcast responsibility as well as
H.R. 3717, the ``Broadcast Decency Enforcement Act of 2004.'' I am Dr.
Alan Wurtzel, the President of Research and Media Development and Chief
Executive for Broadcast Standards and Practices at NBC. I have over 25
years experience in broadcast network television, and I am currently
responsible for establishing and implementing the--NBC Television
Network's--entertainment broadcast content policies and standards.

NBC'S COMMITMENT AND OBJECTIVE IS TO BROADCAST QUALITY PROGRAMMING

As the head of NBC's Standards and Practices group, I can
unequivocally commit to you that NBC takes seriously our obligation to
our viewers to air programming that is not indecent, profane or
obscene. NBC has been committed to doing so since the earliest days of
black and white television, and NBC continues to honor that obligation.
NBC also acknowledges that we are fully responsible for all content
that is transmitted over the NBC Television Network. As an over-the-air
television broadcast network, our goal is to reach a large,
heterogeneous viewing audience with programming that is appropriate,
acceptable, and consistent with all Congressional and FCC requirements.
There is absolutely no question that any indecent content in our
network programming is antithetical to NBC's core beliefs.

NBC HAS INTERNAL SAFEGUARDS IN PLACE TO ENSURE BROADCASTS ADHERE TO
HIGH STANDARDS

NBC has committed the necessary resources to fulfill its obligation
to broadcast appropriate content in all of its program offerings. NBC
maintains a fully staffed team of 17 highly experienced professionals
in our Broadcast Standards and Practices group. Their only job is to
ensure that both the entertainment programming and the commercial
advertising aired on the NBC Television Network are consistent with
NBC's own internal standards. We actively review all of NBC's network
programming, ranging from scripted programming, to reality shows, to
Saturday Night Live. The Standards and Practices Department also
determines the placement of the appropriate voluntary rating on
programming, and exercises vigilant oversight to ensure that NBC's
entertainment programming does not contain inappropriate content. We
are not the only group at NBC that ensures the quality of NBC's network
entertainment programming. NBC inculcates in all of its personnel the
importance of observing these standards in order to serve our large and
broadly diverse viewing audience.

THE BONO INCIDENT WAS A RARE AND REGRETTABLE OCCURRENCE IN NBC'S LONG
HISTORY WITH LIVE TV BROADCASTS

In light of NBC's long history with live television and considering
that the NBC Television Network transmits thousands of hours of network
content annually, we believe that NBC's internal policies and
safeguards have been remarkably successful in preventing obscene,
indecent or profane programming from airing on our network. Occurrences
of inappropriate content in our network entertainment programming have
been extraordinarily rare and regrettable exceptions.
In this regard, NBC deeply regrets the entertainer Bono's
spontaneous and unfortunate choice of an unacceptable word during the
live broadcast of the Golden Globes awards show in January 2003. That
incident stands in stark contrast to NBC's long history of broadcasting
live entertainment programming as well as the history of the Golden
Globes broadcast. NBC had broadcast the Golden Globes live since 1996
without incident prior to Bono's remark. Furthermore, the producer of
the program, Dick Clark Productions, has a long-standing reputation for
professionalism and programming quality. As in years past, the
producer, prior to the 2003 Golden Globes, had instructed every
participant in the event that they needed to observe appropriate
broadcast decorum. Therefore, Bono's utterance of a profanity was
completely unexpected by everyone involved in the broadcast of the live
program. In response to this unexpected incident, NBC immediately
deleted the word from its transmissions to affiliated stations in the
Mountain and Pacific time zones, which did not air the program live.
NBC sincerely regrets that it was unable to delete the word as part of
the live broadcast to the Eastern and Central time zones.
But the isolated Bono incident is a rare exception in NBC's long
history with live entertainment programming. It is unfortunate that
what happened for a fleeting second on the 2003 Golden Globes has
overshadowed an otherwise exemplary record of live entertainment
broadcasting by NBC over many decades. In any event, NBC has
strengthened its practices with regard to live event programming.

NBC HAS INSTITUTED ADDITIONAL SAFEGUARDS

In an effort to take additional affirmative steps to protect our
viewers from another Bono incident, NBC has instituted the routine
practice of running all live award shows on a ten second delay. Since
the Radio Music Awards in November 2003, all live awards shows have
been--and will be--broadcast with both a video and audio delay in
effect. This technological measure will safeguard future network
audiences from a repetition of anything like the Bono incident. While
the delay process cannot be foolproof, NBC's Standards professionals
are among the most practiced in the industry and the application of
their expertise should help prevent any further incidents. Furthermore,
NBC continues to impress upon the producers and talent of live programs
that our use of the delay in no way absolves them from their
responsibility to provide programming that is consistent with the
standards of the NBC Television Network. That means absolutely no
indecent language or behavior. As a further precaution, NBC has also
increased the voluntary rating category that we assign to live
entertainment programming to remind parents that certain programming
may include live, spontaneous and unpredictable content.

NBC'S INTERNAL SAFEGUARDS BENEFIT AFFILIATE STATIONS

The NBC Television Network has implemented its internal standards
and safeguards to protect not only the network and our owned and
operated television stations, but also for the benefit of our
affiliates and our advertisers. NBC recognizes the public interest
obligations of FCC licensees. We are fully cognizant that broadcast
stations--both NBC's owned and operated stations and NBC affiliates--
have an obligation to their viewing audience to air programming that is
not indecent, profane or obscene. NBC's goal in broadcasting our
programming is to reach a large, heterogeneous viewing audience.
Therefore, the NBC Television Network strives to create quality
programming that conforms to the local community standards within which
all of our affiliate stations operate. Given the many different
communities that enjoy NBC programming, this can be a challenge. But,
as a result, NBC affiliates benefit not only from the ability to air
NBC's quality programming, but also from NBC's Broadcast Standards'
procedures and safeguards.
As a practical matter, nearly all affiliates have found these
precautions to be sufficient for many years of programming. However, we
recognize that there may be rare instances in which an affiliate
believes that certain NBC network programming does not meet its
specific local community standards. Under NBC's affiliate contracts
(and Section 73.658(e) of the FCC's rules), every NBC affiliate has the
right to reject or preempt any program--without penalty--if an
affiliate reasonably believes that such programming is unsatisfactory,
unsuitable, or otherwise contrary to the public interest in its
specific community. For example, the NBC Television Network has worked
with our affiliate in Salt Lake City to preempt Saturday Night Live
every week due to the station's concern that the program is
incompatible with its prevailing community standards. I should note
that Saturday Night Live is aired well outside the ``safe harbor'' time
period, is an immensely popular and long-running series seen by the
vast majority of our other NBC's affiliates as a highly valued program
and has enjoyed an excellent record of staying within the bounds of
decency over its 27-year history. Nevertheless, we respect our Salt
Lake affiliate's decision, which is based on its judgment of what is
appropriate for that community.

NBC'S COMMITMENT TO AVOIDING GRATUITOUS VIOLENCE

At the previous Subcommittee hearings on broadcast indecency and at
the Subcommittee markup of H.R. 3717, a number of Members expressed
concerns about TV violence. NBC is extremely sensitive to those
concerns and has already responded to them. In the mid 1990s, NBC
conducted a comprehensive review of its primetime programming due to
increasing concerns, which viewers articulated through their elected
representatives in Congress, about the potentially negative effects of
violent programming. The result was the development of an essentially
non-violent primetime program schedule which exists on the Network to
this day. On the current NBC primetime schedule, programs rarely--if
ever--depict interpersonal violence in a graphic or gratuitous manner.
For example, NBC's long running Law & Order series--and its off-shoots,
Law & Order: Special Victims Unit and Law & Order: Criminal Intent--
exemplify our approach to violence. Rather than show the actual act of
violence, the Law & Order franchise focuses on the negative
interpersonal ramifications of violence and deals with the legal
consequences facing those who would commit acts of violence.

NBC SUPPORTS H.R. 3717 AS INTRODUCED

To NBC and our owned and operated stations, the FCC's current
authority is adequate to ensure compliance. This is because NBC regards
any fine--regardless of the amount--as a serious matter and not simply
the cost of doing business. At the same time, we recognize that some
have argued for tougher sanctions, particularly in order to deter
flagrant and repeat violators. In light of this specific focus, NBC
supports H.R. 3717, the ``Broadcast Decency Enforcement Act of 2004,''
as introduced, which will increase tenfold the statutory maximum of FCC
forfeiture penalties. We need to be mindful, however, of the important
First Amendment principles that are implicated by any content
regulation. It is for that reason that the Supreme Court has only given
very limited approval of any attempt to regulate broadcast indecency.
We would therefore caution against any enforcement regime that would
establish set responses without regard to the context of a
broadcaster's violations or the broadcaster's rights to a fair hearing,
or that would impose penalties that are disproportionate to the gravity
of the offense.
voluntary industry guidelines to promote greater responsibility
NBC believes that concerns about indecent and inappropriate
programming content should be addressed on an industry-wide basis,
encompassing cable and satellite operators as well as broadcasters. In
today's media environment, approximately 85 percent of television
households subscribe to cable or DBS. Those viewers, on average,
receive 110 channels of programming, both retransmitted broadcast
signals and cable networks. For most viewers, there is no meaningful
difference between a broadcast station and a cable channel--each is
just another click on the same remote control. In light of this new
competitive reality, NBC shares the views expressed by several Members
of this Subcommittee as well as several FCC Commissioners that all
industries that distribute programming to American viewers must be a
part of any serious effort to come to grips with issues of appropriate
program content. NBC pledges to participate in an appropriate industry-
wide, voluntary effort.

CONCLUSION

For over half a century, the NBC Television Network, together with
its affiliated stations, has provided quality news and entertainment
programming to the nation's television households. Recently, multiple
new forms of media competitors have arrived on the scene. These are
essentially indistinguishable to the average viewer, yet compared to
broadcast networks they are subject to far fewer limitations on their
entertainment and advertising content. Despite these competitive
challenges, NBC remains committed to quality through its Standards and
Practices review process. We believe it is both good business as well
as responsible corporate citizenship to ensure that our programming
observes standards of suitability and appropriateness that are
responsive to our affiliates, our advertisers, and most importantly,
our viewers.
We have every intention to continuing that commitment.
Thank you and I welcome any questions you may have.

Mr. Upton. Thank you.
Mr. Paxson.

STATEMENT OF LOWELL W. ``BUD'' PAXSON

Mr. Paxson. Thank you, Mr. Chairman, Ranking Member Markey,
and distinguished members of the subcommittee, for providing me
with the opportunity to address you today.
My name is Lowell ``Bud'' Paxson. I am chairman and chief
executive officer of Paxson Communications Corporation. My
company operates 61 full-power television stations and PAX TV,
a broadcast television network now in 95 million homes, 89
percent of the TV households. Our network is dedicated to
providing family television free from gratuitous violence,
explicit sex and foul language. Since 1998, we have worked very
hard at PAX TV to show that you can be successful and make
money in American television by providing programming that is
wholesome and entertaining, and I am very proud of that, and I
am very proud of the hundreds of people who work under that
mantra at PAX. I have been a holder of a radio or a television
license now for over 50 years, and let me say that no station
under my watch has ever broadcast indecent or obscene
programming.
This indecency hearing was called in part because of a few
seconds of a Super Bowl fiasco and the indecent escapade in St.
Patrick's Cathedral in New York and others. The FCC and
Congress and many of you here today have said that we have
authority to regulate indecency on the broadcast airways
because the airways belong to and are owned by the people of
the United States of America, and I agree. Therefore, I give my
unqualified support for Chairman Upton's bill, H.R. 3717, and
also Congressman Markey's initiatives, which my company will
adopt.
Now I have a few observations. The Super Bowl fiasco was a
matter of seconds; but just 2 days ago, Tuesday, here in
Washington, DC, cable and satellite providers carried 675 hours
of pornography. Yes, a total of 675 hours of filth in one 24-
hour period, and at all hours of the day. And here is the
point. Cable and satellite use satellite orbital positions
licensed by the FCC and owned by the people of America, they
use microwave frequencies licensed by the FCC and owned by the
people of America, and they use the right of ways ON streets
that are owned by people. Cable and satellite television could
not function without the public's right of ways or the public's
spectrum. And I am not attacking HBO, Showtime or the hundreds
of other cable networks that can go farther than broadcasters
can go in the area of indecency. I am really not talking about
indecency. I am talking about 675 hours of hard-core
pornography in one 24-hour period, Tuesday, here in the
Nation's Capital.
No one sitting in this room can sit here and tell me that
it is in the public interest that cable and satellite providers
use the public's spectrum and public right of ways to fight
indecent and obscene material into American living room at all
hours of the day without any constraints or limitations, but
that is what is happening day after day in every city of
America.
How to prevent and fix this pervasive evil? Empower the
FCC; enact legislation. If necessary, have an amendment to the
Constitution. You are the lawmakers. You represent the people
who own the airways and the rights of way. You can do it.
Just a note or two. The Bresnan Cable systems and company
in Colorado, Wyoming, Montana and Utah carry no pornography
channels. I salute and praise them. And, oh, yes, they are
profitable, very profitable. I am involved with dozens of
church clergy, and they would step to this microphone
individually and in unison and tell you that the No. 1 family
counseling problem is pornography on cable and satellites.
Ladies and gentlemen, if you need names on petitions to do
something about this pervasive evil, just tell us how many
millions. They will be provided. Please do not say that
pornography is okay because it is scrambled or somehow
protected by the first amendment. The fact is that the people
in the home that know best how to use the remote control are
the kids, and you only need a remote control and a click on a
pay-per-view channel to unscramble those pornographic signals.
In addition to that, the titles of the shows and the
descriptions of the shows are not scrambled. The people of
America who own the airways, the spectrum, the orbital
position, the rights of way, do not want pornography on what
they own.
Finally, the proceeding of Multicast Must Carry for the
public's digital TV licenses is over 3 years old at the Federal
Communications Commission. It is the one thing necessary for
the DTV transition to really work, and it has not happened yet.
The cable and satellite providers say they have no spectrum for
the additional program streams that would provide companies
like mine with the ability to offer more family friendly
programming, minority-oriented programming, locally oriented
programming and faith-based programming.
Take action. Tell cable and satellite to get the
pornography off. They have got room for our multicast channels.
The majority of American people have values and morals. The
majority of American people, your constituents, do not want
what they own to be used for pornography in any way.
Thank you, Mr. Chairman. I will be happy to address any
questions.
[The prepared statement of Lowell W. ``Bud'' Paxson
follows:]

Prepared Statement of Lowell W. ``Bud'' Paxson, Chairman and CEO,
Paxson Communications Corporation

Thank you Mr. Chairman, Mr. Vice-Chairman and distinguished members
of the Subcommittee for providing me with the opportunity to address
you today. My name is Lowell Bud Paxson, and I am Chairman and Chief
Executive Officer of Paxson Communications Corporation. My company
operates 61 full power television stations and PAXTV, a full service
broadcast television network now in 95 million homes--89% of America's
TV homes. Our network is dedicated to providing family television, free
from gratuitous violence, explicit sex and foul language. Since 1998
we've worked very hard at PAXTV to show that you can be successful and
make money in American television by providing programming that is
wholesome and entertaining, and I'm very proud of that. I have been a
holder of a radio or television broadcast license for over 50 years,
and let me say that no station under my watch ever has broadcast
indecent or obscene programming.
This indecency hearing was called in part because of a few seconds
of a Super Bowl fiasco and the indecent escapade in St. Patrick's
Cathedral in New York. The FCC and Congress say they have authority to
regulate indecency on the broadcast airwaves because they belong to the
people of the United States of America, and I agree.
Therefore, I give my unqualified support for Chairman Upton's bill,
HR 3717.
Now, I have a few observations followed by a question. The Super
Bowl fiasco was a matter of seconds. But just two days ago, Tuesday,
here in Washington, D. C., cable and satellite providers carried 675
hours of pornography mostly on pay per view channels. Yes, a total of
675 hours of filth in one 24 hour period--and at all hours of the day.
Now, here's the point. Cable and satellite use the public satellite
orbital positions licensed by the FCC. They use microwave frequencies
licensed by the FCC and owned by the people and the right of ways on
streets also owned by the people. Cable and satellite television could
not function without the public's right of ways or the public's
spectrum.
I'm not attacking HBO, Showtime or the hundred of other cable
networks that go further than broadcasters in the area of indecency.
I'm talking about 675 hours of pornography in one 24 hour period--
Tuesday, here in the nation's capital.
No one sitting in this room can tell me it is in the public
interest for cable and satellite providers to use the public spectrum
and right of ways to pipe indecent and obscene programming into
America's living rooms at all hours of the day without any constraints
or limitations. But that is what is happening, day after day.
How to fix this moral decay? Empower the FCC; enact legislation;
have an amendment to the Constitution if necessary. You are the
lawmakers. You can do it.
Just a note: The Bresnan Cable systems in Colorado, Montana,
Wyoming and Utah carry no pornography channels. I salute and praise
them. Oh, yes, they're profitable--very profitable.
I've talked with dozens of church clergy, and they would step to
this microphone and tell you that the number one family counseling
problem is pornography on cable, satellite and the Internet.
If you need voters' names on petitions to do something about this
pervasive evil, just tell me how many millions. It will be done.
Please don't say that pornography is okay because it is scrambled.
In fact, the people in the home who know how to use a remote control
best are the kids, and you only need a remote control to click on a pay
per view channel to unscramble those signals.
Finally, the proceeding of Multicast Must Carry for the public's
digital TV licenses is over three years old at the FCC. It's the one
thing necessary for the DTV transition to work, and it hasn't happened
yet. The cable and satellite providers say they have no spectrum for
the additional program streams that would provide companies like mine
with the ability to offer more family friendly programming, minority
oriented programming and faith based programming. Tell cable and
satellite to get the pornography off. They've got room for our
multicast channels.
The majority of American people have values and morals. The
majority of America people do not want what they own to be used for
pornography in any way.
Thank you for the opportunity to speak and I'll be happy to address
any of your questions.

Mr. Upton. Thank you.
Mr. Hogan.

STATEMENT OF JOHN HOGAN

Mr. Hogan. Good morning, Chairman Upton, Ranking Member
Markey and members of the subcommittee. My name is John Hogan,
and I am the president and CEO of Clear Channel Radio.
In the past when I have heard people testify before
congressional committees, they have stated that it was a
pleasure to be here. That is not the case for me today. More
than anything else, I am embarrassed to be here. I have read
the transcripts of the Bubba radio show. As a broadcaster, as
the CEO, and as the father of a 9-year-old girl, I am ashamed
to be associated in any way with those words. They are
tasteless, they are vulgar; they should not, do not and will
not represent what our radio stations are all about.
So let me start my testimony today with an apology to our
listeners, to the public in general and to you in this room. We
were wrong to air that material, and I accept full
responsibility for our mistake.
While we cannot take back those words that were aired on
our radio stations, we are taking steps to ensure that it will
not happen again. First, as you have heard earlier, we have
ended our relationship with the personality known as Bubba. He
will no longer be heard on any Clear Channel radio stations.
His dismissal is costly and contentious, but for us it is the
right thing to do.
Since we have received the notice of apparent liability
from the FCC, my top management team has spent considerable
time trying to figure out what went wrong and what we need to
do to ensure that our station's broadcast material is
consistent with the standards and sensibilities of the
communities that we serve. The result has been the adoption and
implementation of what we are calling our Responsible
Broadcasting Initiative, which we are implementing as we speak.
It consists of five components which I would like to share with
you briefly.
The first element of the initiative is companywide
training. This will entail indecency tutorials on what the FCC
does not permit broadcasters to air. It will also include
components that educate our employees about their communities
and our company, its values, its mission and its sense of
corporate and community responsibility. My goal is not only to
put an end to the broadcasts such as Bubba's, but to ensure
that our stations accurately reflect and consistently reflect
what Clear Channel and our communities are all about.
The second component will take effect if somehow that
training fails. I have to tell you, I hope that we never
receive another notice of apparent liability, but if we do,
this is what we will do. First the DJ who has been cited will
be automatically suspended, and we will conduct a swift and
thorough investigation. Second, we will require that DJ and
those involved in the production of that program will under go
remedial training on the FCC indecency area. Third, we will
subject any future broadcasts from that DJ to a significant
time delay so that a program monitor will have the ability to
interrupt a broadcast if its content crosses the line. The
third component of our plan is mandatory termination. If a
notice of apparent liability is issued by the FCC and is then
adjudicated, and Clear Channel is found to have aired an
indecent program, the offending DJ will be immediately
terminated. No immediate steps, no appeals. If someone breaks
the law by broadcasting indecent material on our air, they will
not work for Clear Channel Radio.
In addition, on a going-forward basis, our contracts with
on-air talent will include a provision that requires them to
share in the financial responsibility of any fines that may be
issued. We understand that this in no way absolves us of our
legal responsibility as a licensee, but believe that it will
serve as a deterrent, a further deterrent, to the airing of
material that crosses the line.
Finally, we volunteer to fully participate with
representatives of the broadcast, cable and satellite industry
to develop an industrywide response to indecency and violence.
In our view, industry-developed guidelines will be as effective
as government-imposed regulations without running afoul of the
important first amendment protections.
Mr. Chairman, I think it is important to mention that the
Responsible Broadcasting Initiative which I have just described
represents a departure for Clear Channel. Historically we have
managed on a very decentralized basis. Localism is at the heart
and soul of radio, and it is the heart and soul of Clear
Channel, and localism requires local control. Clearly when it
comes to the airing of the type of material that this hearing
is learning of, a different approach is required. As it must,
the buck stops here. We will provide specific direction to our
local managers in this area and impose a response to the
problem that is companywide.
Finally, Mr. Chairman, I would like to point out that Clear
Channel Radio airs tens of thousands of hours of programming
each week that is in line with community standards and
sensibilities. I hope that the subcommittee will understand
that the Bubbas of the world and the Howard Sterns of the world
are the exception rather than the rule, and that they will no
longer have a platform on our stations.
As an industry leader I hope to help lead the way in
cleaning up our airways. Thank you for your time this morning.
I look forward to answering your questions.
[The prepared statement of John Hogan follows:]

Prepared Statement of John Hogan, President and Chief Executive
Officer, Clear Channel Radio

Good Morning, Chairman Upton, Ranking Member Markey, and Members of
the Subcommittee. My name is John Hogan, and I am the CEO of Clear
Channel Radio.
In the past when I've heard people testify before a Congressional
Committee, they've stated that it's a pleasure to be here.
Unfortunately, that is not the case for me today.
Today, more than anything else I'm embarrassed. I've read the
transcript of a Clear Channel radio show featuring the personality
known as Bubba the Love Sponge. As you may know, Clear Channel recently
received a substantial Notice of Apparent Liability from the FCC for
the content of that show. As a broadcaster, as a CEO, and as a parent
of a nine-year-old girl, I am ashamed to be in any way associated with
those words. They are tasteless, they are vulgar, and they should not,
do not--and will not--represent what Clear Channel is about.
So let me begin my testimony today with an apology--to our
listeners; to the public at large; and to you in this room. We were
wrong to air that material; I accept responsibility for our mistake;
and my company will live with the consequences of its actions.
While we cannot ``take back'' the words that were aired on our
stations, we can take steps to ensure that it won't happen again. We
are turning the page on how we deal with and prevent inappropriate
content from airing on our stations, and that is what I'd like to focus
on with you here today.
First, Clear Channel has ended its contractual relationship with
the on-air personality known as ``Bubba.'' His show will no longer be
carried by any Clear Channel station. His dismissal will be costly and
contentious but it is the right thing to do. Because of employee
confidentiality rights, I can't go into much detail regarding his
dismissal. But I can assure this Subcommittee that Clear Channel
stations will no longer serve as his platform to reach an audience.
But dismissing an on-air talent or DJ isn't enough, and we
recognize that. In the days since we received the Notice of Apparent
Liability from the FCC, our top executives have devoted considerable
time to trying to figure out what went wrong; what we need to do
differently; and above all else, what we need to do to ensure that our
stations broadcast material that is consistent with the standards and
sensibilities of the communities we serve.
The result has been the adoption of what we are calling our
``Responsible Broadcasting Initiative'' which we are now implementing
throughout the Company. It consists of five components, which I'd like
to share with you:

1. The first element of the Initiative is Company-wide training. This
will of course entail indecency tutorials on what the FCC does
not permit broadcasters to air. But it will also include
components that educate our employees about our Company--its
values, its mission, and its sense of corporate responsibility.
My goal is not only to put an end to broadcasts such as
Bubba's, but to ensure that our stations accurately reflect
what Clear Channel and our communities are all about.
2. The second component will take effect in cases where our training
has failed--when a Clear Channel station receives a Notice of
Apparent Liability from the FCC for a broadcast that the
Commission believes to be indecent. While I hope that there
will never again be a case when a Clear Channel station
receives such a Notice, if one does we will do the following:
First, automatically suspend the DJ who was cited;
Second, require that DJ and anyone else associated with the
offending broadcast to undergo remedial training on the
FCC's indecency regulations and satisfy station management
that they understand where the Commission draws the line;
and
Third, subject that DJ's broadcasts to a significant time delay,
so that a program monitor will have the ability to
interrupt a broadcast if its content crosses the line. In
fact, our engineers are now in the process of developing
equipment with the capability of imposing a five minute
delay, something unprecedented in the radio business, at
significant cost to the company. This will help to ensure
that the monitor has sufficient time to exercise discretion
and remove any portion of the broadcast that crosses the
line.
3. The third component is mandatory termination. If a Notice of
Apparent Liability issued by the FCC is adjudicated and Clear
Channel is found to have aired an indecent program, the
offending DJ will be terminated without delay. No appeals; no
intermediate steps. If they break the law by broadcasting
indecent material, they will not work for Clear Channel.
4. We have been implementing the fourth component for several months
now, and we believe it will pay significant dividends. Our
contracts with our on-air performers are being modified to make
sure that these performers share financial responsibility if
they utter indecent material on the air. This in no way
absolves us of our legal responsibilities as licensees, but we
hope that it will act as a deterrent to airing material that
crosses the line. On a going-forward basis, every contract
Clear Channel enters into will include these provisions.
5. Finally, we volunteer to fully participate with other
representatives of the broadcast, cable and satellite
industries to develop an industry-wide response to indecency
and violence. In our view industry-developed guidelines will be
as effective as Government-imposed regulations without running
afoul of First Amendment protections that we all respect.
Mr. Chairman, I think it is important to mention that the
``Responsible Broadcasting Initiative'' I've just discussed represents
a dramatic departure from Clear Channel's historical approach to our
business. As a company, our success has always been based on our
decentralized management approach. We have over 950 program directors
in local markets across the country making decisions about what gets
aired based on the preferences of the communities in which they live.
Localism is at the heart and soul of our industry and of Clear Channel,
and localism requires local control.
But clearly when it comes to the airing of the type of material
that is the subject of this hearing, a different approach is required.
As it must, the buck stops here. So in an effort to better serve our
listeners and the communities in which they live, we will provide
specific direction to our local managers in this area impose a response
to the problem that is applied company-wide.
Finally, Mr. Chairman, I'd like to point out that our stations
broadcast tens of thousands of hours of programming each week that is
entertaining, informative, and completely in line with the standards of
our local communities. That success doesn't absolve us of our
responsibility for the excesses of the few that have broadcasted
irresponsibly. But I hope that this Subcommittee will recognize that
the Bubbas of our world are the exception to the rule. They don't
represent what Clear Channel is all about, they will no longer have a
platform on our stations, and I hope we will be evaluated as a licensee
based on all that we do.
We certainly don't want to be associated with indecency. As the
CEO, I won't have any more of it. And as an industry leader it's our
responsibility to be part of the solution to the problem, and I intend
to see that we help to lead the way.

THE LEGISLATION

Clear Channel supports H.R. 3717 as introduced. A ten-fold increase
in the amount of fines that the FCC can levy will act as an effective
deterrent to Clear Channel and the entire broadcast industry. It will
also serve as a ``shot across the bow'' of the industry, putting us all
on notice that Congress and the FCC are serious about cleaning up the
airwaves.
At Clear Channel we're serious about it too. Our ``Responsible
Broadcasting Initiative'' is designed to ensure that Clear Channel
isn't charged with indecency in the future. But if we fail, and are
ultimately ordered to pay a fine for broadcasting indecent material, I
believe the levels contemplated in the legislation are reasonable and
just.

THE AMENDMENTS

It is my understanding that, when this Subcommittee considered the
legislation two weeks ago, several Members offered amendments that were
then withdrawn. Without commenting on each of them, let me lay out two
broad concerns that I have with the amendments that I've seen.
Revocation of Licenses
The first is that the punishment should fit the crime--that
whatever the FCC decides to do should be proportionate to the
licensee's transgression. This is not only common sense, but our
lawyers tell me that there is also a long-establish body of
Constitutional law holding that penalties imposed by the Government
must be proportionate to the related offenses.
Clear Channel's 1200 radio stations broadcast approximately 125,000
hours of live/local programming each week. The broadcasts for which
we're received the Notice of Apparent Liability represent a fraction of
1% of the programming we air in one week. I don't say that in an
attempt to minimize the significance of either the NAL or the
associated broadcasts, but only to add a little perspective. We erred
in permitting those broadcasts to air; we regret that we did so, and we
will live with the consequences.
But radio stations are valuable assets. We have paid more than $100
million for a station in a large market. For the Government to revoke
the license of such a station for such a transgression seems to me to
be disproportionate.
I'm also concerned that threatening to revoke licenses will force
us to contest any allegation of indecency by the Commission because the
stakes will be so high. Although this isn't the case with every
licensee, in the past Clear Channel has admitted wrong-doing and paid
its fines without contesting the allegation. Upping the ante to include
revocation as a sanction will put an end to that, since we will have no
choice but to protect our company's assets.
Finally, I'm concerned about the proverbial ``law of unintended
consequences.'' Although offensive, indecent speech is protected under
the First Amendment. If we're forced to contest FCC allegations of
indecency in court, it is conceivable that the judiciary may weaken the
ability of the FCC to protect the public. That's not an outcome that we
want, and I'm sure it's not an outcome that Congress wants either. But
when the stakes get raised to the point of endangering our licenses,
our duty to our shareholders will force us to resist, and doing so may
result in court decisions that are contrary to what any of us want.
Due Process
It appears that there may be an amendment offered that uses the
issuance of a Notice of Apparent Liability as a trigger for a
revocation hearing. A NAL is an allegation of wrong-doing. But having
been accused, the Constitution guarantees a licensee due process rights
that include a hearing before an impartial tribunal. In Clear Channel's
view the resolution of an indecency complaint should only be viewed as
final when an order has been entered by a court of competent
jurisdiction, or when a licensee admits to having broadcast indecent
programming.
As a general matter, Clear Channel stands ready to work with the
Subcommittee to ensure that any amendments to H.R. 3717 are
constitutional and will not result in an outcome that is contrary to
what Congress is trying to achieve.

CONCLUSION

Let me conclude where I started--with an apology. I regret that our
stations aired this material, and accept full responsibility for it. As
I indicated earlier, I'm not happy or proud to be here today. I hope
that the steps we are implementing will keep me from ever having to
return under similar circumstances in the future. I thank you for your
courtesy, and I'll be happy to answer any questions that you may have.

Mr. Upton. Thank you.
Mr. Pappas.

STATEMENT OF HARRY J. PAPPAS

Mr. Pappas. Mr. Chairman, Mr. Markey and members of the
committee, good morning. I am Harry Pappas. I am pleased to
testify before you today as a broadcast station owner serving
45 million viewers and also as a concerned citizen, husband and
father of two young children. You are well aware that the
majority of Americans are outraged and disgusted by the
indecent and profane language and visual content that have too
long been continuously and routinely broadcast over America's
TV networks, but I am, too.
Chairman Upton, I commend you and the entire committee for
your leadership. You all have it right. I also commend the FCC
Chairman Powell and all four Commissioners for their recent
reaffirmation before this subcommittee of the lawful right of
local affiliates to reject network programming, and it is
encouraging to hear my network colleagues reaffirm those rights
here today. But in practice the exercise of these rights is
circumscribed by contract in many affiliation agreements as
well as by network practices relating to the delivery and
clearance of network programming. The bottom line is that local
broadcasters are and can be the best defense against offensive
program material.
The problem of indecency is by no means limited to live
programming. Increasingly, taped network programming has
imitated some cable network shows in a race to the lowest
common denominator of poor taste, sexual or violent content and
profanity. I cannot tell what you it feels like to be asked by
our viewers across America, as I often am, why I and others are
broadcasting obscenity and profanity into their living rooms,
nor what it feels like to have to answer, ``Because the
networks do not allow me to preview or reject it, except
perhaps at the risk of losing my affiliation.''
I have been a broadcast station licensee for 39 years, and
this was never about being a cookie-cutter McDonald's
franchise. Unfortunately, unless we reverse the trend, local
stations will become mere passive conduits for national and
network programs, and that is not what Congress intended. Free
over-the-air broadcasters have a special responsibility and
duty to air programming reflecting the interests and values of
the communities we serve. If we choose to emulate cable, rather
than to show leadership in stemming the tide of profanity,
indecency and gratuitous violence, we abandon our unique
mission, our commitment to localism and our statutory
obligation to program for our local viewers.
The Communications Act specifically grants local
broadcasters the right to reject or preempt network programs.
In practice, though, local broadcasters today do so at great
peril. This tension between the law and the realities of the
network-affiliate relationship has been clearly outlined by
NASA, the National Affiliated Stations Alliance, in its
petition filed 3 years ago before the FCC. Today local
affiliates have been virtually stripped of any right to preview
and evaluate any network programming in advance. The clearance
process has become a mere rubber stamp. An affiliate risks
losing its affiliation if it preempts any or more than a few
hours of network programming without the network's prior
consent, and such consent is rarely given.
These contractual provisions are clearly described in and
appended to a NASA provision, and I would refer the committee
to that document. I am submitting to the subcommittee a copy of
a NASA petition and I respectfully request, Mr. Chairman, that
it be inserted into the record of these hearings.
Mr. Upton. Without objection.
Mr. Pappas. Mr. Chairman, our stations are affiliated with
Fox, CBS, ABC, the WB, UPN, and Azteca America Networks in 15
markets in 10 States across the country. And I will attest to
the fact that our network partners produce a lot of very high-
quality programming. However, the audiences we are licensed to
serve in Los Angeles or San Francisco are very different from
the audiences we serve in Greensboro or Fresno or Omaha or El
Paso, and as a result of unduly relaxed Federal oversight, the
networks now deny local stations the ability as a practical
matter to clear and reject network programming that is simply
unsuitable.
Mr. Chairman, I wholeheartedly support this committee's
legislation aimed at increasing the penalties for indecent
broadcast, and I personally would be willing to accept the
punishment if I were to commit the offense; however, the Catch
22 for local broadcasters is that while we as licensees are the
legally liable entities, it is typically network programming
that potentially places us at greatest risk for sanction. I
applaud Congressman Green for recognizing this and for
proposing an amendment that is designed to indemnify affiliates
for network-originated content, but I also believe that more
must be done to protect the interest of the public we serve.
There is no one thing the FCC could do at this moment to
more effectively and quickly stop the race to the bottom than
to restore to local stations and their communities the ability
to accept or reject national network programming, for, while I
do believe it is appropriate for affiliates to be indemnified
by the networks for the indecent content that they might
originate, our primary responsibility is to our audiences and
to stopping such content from ever getting on the air in the
first place. We only request that the FCC unequivocally
reaffirm our existing legal right to reject unsuitable network
programming so that we are truly enabled to discharge our
responsibilities to our viewers and your constituents.
Thank you, Mr. Chairman.
[The prepared statement of Harry J. Pappas follows:]

Prepared Statement of Harry J. Pappas, Chairman and CEO, Pappas
Telecasting Companies

Mr. Chairman, Mr. Markey, and Members of the Subcommittee, good
morning and thank you for this opportunity to speak on an issue of
great public importance to the millions of viewers of broadcast
television programming, and to nearly 1,000 local television stations
throughout the nation that are affiliated with the national television
networks. I am pleased to testify before you today not only as a
broadcaster but also as a concerned citizen, husband and father of two
young children. As the members of this committee demonstrated by their
thoughtful comments during the previous hearings on this subject, you
are well aware that the majority of Americans are outraged by the
indecent and profane language and visual content that is now routinely
broadcast over America's TV networks. Such program material, which is
deeply offensive to most of our viewers and especially harmful to our
children, has become all too commonplace on over-the-air television,
and on cable and DBS channels--at all hours of the day and evening when
there are substantial numbers of children in the audience.
This disturbing trend reached a crescendo several weeks ago during
the Super Bowl half-time show when millions of Americans and their
children were watching one of America's great sporting events, only to
be unwittingly subjected to a particularly offensive display. This and
other recent episodes have spurred a reassessment at the Commission and
in the Congress, and the introduction of commendable legislation aimed
at stemming the tide of indecency and profanity on radio and
television. I commend Chairman Upton for his leadership, and I applaud
FCC Chairman Powell for condemning this latest incident so forcefully
and for personally overseeing the Commission's investigation of it. I
particularly wish to commend Chairman Powell and all four Commissioners
for their reaffirmation before this subcommittee of the lawful right of
local affiliates to reject network programming. Lastly, I commend our
network partners for implementing certain enhancements in their tape-
delay systems to reduce the risk of broadcasting objectionable content
during live broadcasts and for taking other remedial measures, but
these steps do not adequately address the root problem or provide the
necessary root solution. The bottom line is that local broadcasters are
the best defense against offensive program material.
While certain blatant incidents of profanity during live
programming may be what has brought us here today, the prevalence of
indecent or inappropriate material on television is by no means limited
to such instances--whether scripted or not--during live programming.
Increasingly, taped network series and other taped programming have
imitated many of the cable network programs in a race to the lowest
common denominator of poor taste, sexual or violent content, and
profanity. Much of network daytime and prime-time programming today
makes routine use of profane language, sexual innuendo and gratuitous,
graphic violence. I cannot tell you what it feels like to be asked by
our viewers across America--as I often am--why I am broadcasting
obscenity and profanity into their living rooms. Nor what it feels like
to have to answer: ``Because my networks do not allow me to reject it--
short of running the risk of losing my affiliation.''
Mr. Chairman, I have been in this business for 39 years and this
was never about being a cookie-cutter McDonald's franchise.
Unfortunately, unless we reverse this trend, local stations will become
mere passive network conduits for national network programs, and I
don't believe that is what Congress intended.
My view is this: I believe that as free over-the-air broadcasters,
we have a special and honorable responsibility to program in a manner
reflective of the interests and values of the local communities we are
entrusted by FCC license to serve. We are a ubiquitous and free over-
the-air service that makes use of public spectrum, and as such, have
special responsibilities to serve our local communities. We have, for
decades, been perpetual guests in America's living rooms. If we choose
to emulate cable rather than to show leadership in stemming the tide of
profanity and indecency and gratuitous violence, I believe we lose our
unique mission, which is our commitment to localism and our statutory
obligation to program for our local viewers.
Congress authorized local broadcast stations and gave them special
responsibilities to serve ``local'' communities. That is the unique
character of and what has made the American broadcast system the envy
of the free world. It is a tribute to the genius of Congress when, in
l934, it designed a broadcast system to assure that local stations in
local communities--not national network executives in Hollywood or New
York--would pick the programs for those communities. The holder of the
local station license--as a public trustee--is charged under Section
310(d) of the Act and Section 73.658 of the FCC's rules with the legal
duty of accepting or rejecting network programs and deciding what
programs are most appropriate for that community. A broadcaster cannot
abdicate or delegate that duty. Both the FCC and the courts have said
so repeatedly. Here's what the FCC said when it adopted the right-to-
reject rule:
``It is the station, not the network, which is licensed to
serve the public interest. The licensee has the duty of
determining what programs shall be broadcast over his station's
facilities, and cannot lawfully delegate this duty or transfer
that control of his station directly to the network . . . The
licensee is obliged to reserve to himself the final decision as
to what programs will best serve the public interest.''
¹
---------------------------------------------------------------------------
\1\ Report on Chain Broadcasting, Commission Order No. 37, Docket
No. 5060, at 66 (May 2, 1941) (``Chain Broadcasting Report''),
modified, Supplemental Report on Chain Broadcasting (1941), appeal
dismissed sub nom., NBC v. United States, 47 F. Supp. 940 (1942),
Aff'd, 319 U.S. 190 (1943).
---------------------------------------------------------------------------
Section 310 (d) of the Communications Act of 1934, as amended,
specifically delegated to local broadcast licensees the responsibility
of programming in a manner reflective of the needs and interests of
diverse local communities and the concomitant responsibility to control
the content that we disseminate to our viewers in each local market.
Section 73.658 (e) of the Commission's Rules clearly states: ``No
license shall be granted to a television broadcast station having any
contract, arrangement or understanding, express or implied, with a
network organization which, with respect to programs offered or already
contracted for pursuant to an affiliation contract, prevents or hinders
the station from: (1) Rejecting or refusing network programs which the
station reasonably believes to be unsatisfactory or unsuitable or
contrary to the public interest, or (2) Substituting a program which,
in the station's opinion, is of greater local or national importance.''
Mr. Chairman, I watched the last hearing of this subcommittee on
the subject of indecency with great interest, and I was heartened to
hear Chairman Powell and all four FCC Commissioners reaffirm so clearly
the statutory and regulatory right and obligation of local station
licensees to reject or preempt network programming that includes
objectionable content. But the fact remains that many of the current
form of network affiliation contracts include provisions that inhibit
the exercise of those statutory and regulatory duties. Those
responsibilities, which Congress expressly delegated to local
broadcasters to ensure their ability to program in a manner reflective
of the needs and interests of diverse local communities, have been
diminished over time. In reality, networks have strong-armed affiliates
with their superior bargaining power to require affiliates to
relinquish their programming responsibilities by contract. Networks
today routinely abrogate the right to reject or preempt national
network programming through the use of contractual provisions that
explicitly threaten termination of the affiliation as a consequence of
``unauthorized'' rejection or preemption of network programming and
substitution of non-network programming. As a consequence, the networks
have largely succeeded through contract in reducing the statutory
rights and public stewardship responsibilities of local broadcasters to
accept or reject network programming to a mere vestige of the clear and
unambiguous duties expressly mandated by Congress. If the right to
reject rule says what it appears to say unequivocally, then such
contractual provisions are clearly incompatible with both the law and
FCC regulation.
Let us be clear: There is a significant causal connection between
the increasing prevalence of profanity and indecency on network
television and the erosion of broadcast licensees' rights under the
Communications Act of 1934, as amended, to control the content that we
broadcast on our stations to our local viewers. While the
Communications Act specifically grants the right to reject or pre-empt,
local broadcasters today do so only at great peril. This tension
between the law and the true realities of the network-affiliate
relationship have been clearly outlined by the Network Affiliated
Stations Alliance in its petition filed on behalf of the CBS, ABC and
NBC Affiliates Associations before the Federal Communications
Commission in March of 2001. The NASA Petition documents the manner in
which the networks now demand and obtain contract provisions that
effectively require affiliates to air all of the programming of a
network rather than a locally selected mix of programming--which
provisions plainly violate the Communications Act, the localism
principle, and the basic Commission requirement that local stations
retain the right to select programming. The Report and Statement of FCC
Policy from the 1960 En Banc Programming Inquiry states that
``broadcast licensees must assume responsibility for all material which
is broadcast through their facilities.'' ² However, today,
local affiliates have been virtually stripped of any right to receive
network programming in advance and to evaluate its content. The
``clearance'' process has become a mere rubber-stamp. The truth is that
in virtually every current network affiliation agreement, an affiliate
risks losing its affiliation if it preempts any or more than a few
hours of network programming without the network's prior consent. Such
consent is rarely given.
---------------------------------------------------------------------------
\2\ Report And Statement Of Policy Re: Commission En Banc
Programming Inquiry, FC 560-970, 91874 at 2303.
---------------------------------------------------------------------------
I am submitting to the Subcommittee a copy of the initial
``Petition For Inquiry Into Network Practices'' and a follow-up
pleading entitled ``NASA's Early Comments and Motion For Declaratory
Ruling'' that local network affiliates filed with the FCC on the very
issues being addressed by this hearing. I respectfully request that
these documents be inserted into and made a part of the record of these
hearings. A brief summary of the Petition is attached to this statement
as Attachment A.
The network practices outlined in the NASA Petition threaten core
public interest values of program diversity and localism and must be
addressed. In all fairness to the networks, I understand that it is the
job of network executives to get their programs shown on all of their
affiliated stations. Conversely, however, it is the legal
responsibility of local station licensees to make sure those programs
are both suitable and of interest to their communities of license. The
networks are the most important business partners local network
affiliated stations have. My stations are affiliated with Fox, CBS,
ABC, the WB, UPN and Azteca America in 15 markets in 10 states across
the country, and I will attest to the fact that the networks produce a
lot of very high quality programming for a national audience. It is
certainly not my intent to suggest otherwise. However, the truth
remains that the audience I am licensed to serve in Los Angeles or San
Francisco is very different from the audience I am licensed to serve in
Greensboro or Fresno or Omaha or El Paso. And as the result of unduly
relaxed federal oversight, the networks--in a competitive effort to
maximize profits--now are in a position to effectively deny local
stations the ability to reject network programs that may simply be
unsuitable for their markets, or to substitute programs of greater
local interest or importance. This difference, of course, presents, a
conflict. That conflict has grown in intensity in recent years as the
networks have grown more powerful and local stations have been forced
increasingly to succumb to the networks' demands to the detriment of
our viewers.
Mr. Chairman, I commend you and Mr. Markey for introducing H.R.
3717, The Broadcast Decency Enforcement Act, which would increase the
penalties that the Commission could apply for violations by television
and radio broadcasters of the prohibitions against transmission of
obscene, indecent, and profane content. I, too, am deeply troubled by
the now commonplace profanity on network television, and by the upset
it has caused to most of our viewers, as well as by the potential legal
liability that it entails for our stations for unwittingly, and indeed
unwillingly, transmitting such material over our airwaves. I support
your efforts to increase the penalties for indecent broadcasts, and I,
personally, would be willing to accept the punishment if I were to
commit the offense. However, the conundrum for local broadcasters is
that while we, as licensees, are the legally liable entities, it is
typically network-originated programming that potentially places us at
risk of sanction. The truth is my fellow local broadcasters have done a
good job on the whole of adhering to the indecency prohibitions. As a
consequence, of the thousands of complaints received by the FCC over
the last several years relating to television, only a fraction related
to locally originated programming. I am greatly appreciative that many
of the members of this subcommittee have publicly acknowledged during
these proceedings that the local affiliate is often placed between a
rock and a hard place, and I applaud Congressman Green for proposing an
amendment that is designed to indemnify affiliates for network-
originated content. But I also believe that we can do even more to
protect the interests of the public we serve by reaffirming our
statutory rights to program.
In order for the more robust fining regime you are considering to
be truly effective, the FCC should at a minimum reverse the Enforcement
Bureau's unfortunate decision in the Bono case and start to actively
levy fines against the networks for indecent broadcasts in whatever
form they take. Congress should also reaffirm the prohibition against
any use of profane language regardless of its context during the hours
of 6AM and 10 PM--and in so doing, remove the ambiguity that has
clouded this matter to the detriment of the vast majority of the
viewing public.
There are ample studies that clearly demonstrate that exposure to
indecent content is harmful to children, and Congress should not be
reticent to make such a finding. Nor should Congress be reluctant to
legislate in this area for fear that ridding our families' living rooms
of indecent content cannot pass Constitutional muster. Certainly there
is a distinction to be drawn between First Amendment protection of
political speech or content that adults choose to view or read, on the
one hand, and content that is beamed into the home at all times of the
day and night when children are watching what is, after all, still
America's great pastime. If shouting fire in a crowded theatre when not
true is impermissible speech, surely so is conduct in speech or image
on our airwaves which demonstrably harms the most vulnerable in our
society--our children.
As the Commerce Committee undertakes hearings into the critical
matter, I respectfully request that members of the Committee bear in
mind that stemming the tide of indecency on the nation's airwaves
requires a reaffirmation by the FCC of the local licensee's unfettered
right and responsibility to broadcast only that programming which the
licensee, as public trustee, deems appropriate to and reflective of the
tastes and mores of the community the licensee has been licensed to
serve. Frankly, there is no one thing the FCC could do at the moment to
more effectively and quickly stop the ``race to the bottom,'' as
Chairman Upton so aptly described it, than to take action to restore to
local stations and their communities the ability to accept or reject
national network programming. For, while I do believe it is appropriate
that affiliates be indemnified by the networks for indecent content
that is network-originated, our primary responsibility is to our
audiences and to ensuring that we discharge our responsibilities to
them. We proudly accept the public stewardship that Congress entrusted
to us as local broadcasters. We only request, in turn, that the FCC
unequivocally reaffirm our legal right to reject unsuitable network
programming and to air non-network programming of greater local
importance, and thereby to enable us to discharge our responsibilities
to our viewers and your constituents. Once our right to clear and
reject network programs is affirmed, we, as local broadcasters, will
gladly accept the responsibility for the content of those programs.
After all, if we are to be subject to penalties because we bear the
legal responsibility and liability for the content we transmit over our
airwaves, then we must also be given back the de facto ability to
prevent the broadcast of sanctionable content. It is my firm belief
that local broadcasters are--as Congressman Markey suggested two weeks
ago--the best defense against offensive, profane or indecent program
content. I respectfully urge this subcommittee to do whatever it can to
enable local broadcasters to discharge that critical responsibility for
the benefit of our viewers.
Mr. Chairman, I commend you and the subcommittee for taking this
important legislative initiative.
Thank you.

Mr. Upton. Thank you all for your testimony.
At this point members on the subcommittee will be able to
ask questions for 5-minute periods. We will alternate between
the Republican and Democratic side.
We appreciate all your testimony, that is for sure. And I
will say from the start, and I will 'fess up that I am no fan
of Howard Stern nor some of the things that he has said on his
show. And I think, at least for me, and I would suspect a
number of members on this panel, that we were very happy to see
today's news, whether it be in the newspaper or in the
broadcast world, that, in fact, part of his show has been
scrubbed.
I have actually had the chance to look at the transcript
from earlier this week, which I presume was the primary reason
why the plug was pulled, but I have to say this as one that
does not listen to Howard Stern, I do not think that what he
said earlier this week is probably much different than what he
has been saying for a number of years ago, particularly knowing
that for a long time he had the record fine or the highest
settlement in an FCC ruling for some of the things that he has
said. And I just wonder, Mr. Hogan, we welcome your statement
this morning but why did not this happen earlier? Were you
unaware of some of the remarks that he was saying on air? And
again, I do not know if it has changed much as you look at some
of the other networks, though it is not on Clear Channel, as to
whether he has actually changed his tune.
Mr. Hogan. Mr. Congressman, I do not think he has changed
his tune, but we have changed ours. We are going in a different
direction. We have heard you and your committee. We have heard
the FCC. We have heard our listeners, and we have heard the
American public. We are going to go in a different direction at
Clear Channel Radio, and that sort of inappropriate material
does not have a place on our air.
Mr. Upton. Mr. Karmazin was here a couple of weeks ago, and
I asked him about the FCC's notice of apparent liability
against the show that discussed sex between a father and his
daughter, clearly indecent, particularly when you looked at the
transcript. He refused at that point to admit that the
broadcast was indecent and indicated that they had not yet paid
the fine, was waiting for the course to run.
Do you admit that Bubba the Love Sponge, whose show has now
been pulled, which is the subject of the an FCC notice of
apparent liability, is indecent, and do you expect to pay that
fine at the appropriate time?
Mr. Hogan. Mr. Congressman, the appropriate time that we
have to confirm whether we are going to pay or not pay the fine
is March 4, and it is a very serious issue for us with
significant legal implications. I am not an attorney. I do not
pretend to understand all of the legal nuances involved in
this.
The very short answer is we have not decided what we will
do about that fine. Our attorneys are working on it and giving
it the utmost concern.
Mr. Upton. I was asked by a number of folks a couple of
weeks ago about the level of the FCC's enforcement and whether
perhaps our bill H.R. 3717 was going to require more staffing
and more money for the FCC to enforce the new bill, the new
legislation. My immediate response was I was hoping that the
fines would be significantly higher; that, in fact, it would
send a signal to all industry folks, whether it be radio or TV,
that they would not have to cross that line, that, in fact, the
number of complaints would dramatically drop because the notice
would be there, the fines would be high enough that they would
really hurt, and hopefully we would have fewer incidences, not
greater, that they would have to investigate.
Based on your comments this morning and your testimony,
would all of you agree with my assessment, or would you
disagree? Mr. Pappas, we will start with you.
Mr. Pappas. I agree with your assessment.
Mr. Upton. Mr. Hogan?
Mr. Hogan. I agree.
Mr. Upton. Mr. Paxson?
Mr. Paxson. I think if the fines are large enough, it will
cover the expenses.
Mr. Upton. Dr. Wurtzel.
Mr. Wurtzel. I would agree.
Mr. Upton. Ms. Berman.
Ms. Berman. I would agree, sir.
Mr. Upton. Mr. Wallau?
Mr. Wallau. I would have to make it unanimous, Mr.
Chairman.
Mr. Upton. That is good.
The last question I have as my time is expiring, a number
of companies are moving toward holding talent responsible for
the indecent material that they may put out on the airways.
Clear Channel, for instance, as I understand it, will require
its employees to sign contracts that will make the talent
responsible for 50 percent of the FCC fine. Do you all expect
your organizations to do something similar? Again quickly down
the line. Mr. Pappas.
Mr. Pappas. Mr. Chairman, we have always held our employees
responsible and accountable for conforming with FCC rules. And,
in fact, from the time I became a broadcast station licensee,
the original rules in place do, in fact, place the potential
for penalties on individuals who are on broadcast airwaves as
well as on licensees. I think if you need to clarify that
today, that that should be done.
Mr. Upton. Mr. Hogan, you have already indicated.
Mr. Paxson.
Mr. Paxson. Yes.
Mr. Upton. Dr. Wurtzel.
Mr. Wurtzel. Yes, I agree.
Mr. Upton. Ms. Berman.
Ms. Berman. I would just like to point out that we do not
want to create an environment where talent is afraid to show
up. So while I agree with the position that we would accept
that as something we would do, it is ultimately our
responsibility as a broadcast company to be responsible for
what goes out over the airwaves. We do not want to create an
environment where people feel they should not show up for a
show because they might commit an accident of some kind.
That said, we do believe that we have to inform individuals
of their responsibilities that they have when they go over the
broadcast. So, yes, I agree, but it is with a slight caveat.
Mr. Upton. Mr. Wallau.
Mr. Wallau. Mr. Chairman, ultimately I agree with Gail that
our responsibility at the end of the day is what matters. We
have obviously the scripted series and dramas and theatrical
movies; all of the things that are not live programming we
require and have an agreement with the providers, the suppliers
of the content, that they provide us with content that is
suitable for air. If they do not comply with our standards, we
reject the programming.
In live programming where the people who are appearing at
an awards ceremony are not technically employees or not
suppliers, they are talent going on to a show, I frankly have
not had discussions about how we hold them financially
responsible because we have embraced the idea of our own
responsibility. We do inform them about the fact of what the
responsibility is and what is appropriate conduct and what is
not appropriate conduct, and we do have those discussions. But
if somebody chooses to do something indecent or obscene as a
participant in a live awards show is the most obvious example,
how we would get to a system of them having some financial
responsibility we have not discussed yet. I am not saying we
would not do it, I just do not have anything to tell you about
it right now.
Mr. Upton. Mr. Markey.
Mr. Markey. Thank you, Mr. Chairman.
I would like to ask each of the networks a series of
questions that can help us establish a baseline to what parents
can expect in the future to information that helps them with
the television programming. I will go down each one of you.
Will you display the TV ratings icon not only at the beginning
of the show, but also after commercial breaks? Mr. Wallau.
Mr. Wallau. Yes.
Ms. Berman. At present that is not our plan, Congressman.
We plan on changing the icon that we currently have, making it
more predominant so that people can see it and animating it. We
do feel that it is very important that our concentration then
go to informing people about what that means for them, that
icon means, and how they can use the icon better to service
their needs as consumers and as protectors of their children.
Mr. Markey. The point is that a lot of times people tune in
to a program that is already in progress. So the first time
that a parent would actually be able to see the rating for the
show is at that commercial break. So it would be helpful for
the parents to see the rating at the commercial break so that
they could then change the channel if they wanted to. Would you
consider at Fox putting it on?
Ms. Berman. Yes, I would absolutely consider it. I wear two
hats as I sit here today as it relates to the network. I am
responsible for what goes out over the broadcast. I am also
responsible for the esthetic of the broadcast.
Mr. Markey. Just putting it on for 5 or 10 seconds at a
commercial break in the corner is not any great----
Ms. Berman. It is completely doable, and we will absolutely
consider it.
Mr. Markey. That is important.
Mr. Wurtzel.
Mr. Wurtzel. This is the first I have actually heard of it,
so we would have to take it under consideration. But I
understand the objective, and it certainly sounds like it makes
a lot of sense. So what I would like to do is to be able to
consider it and respond to you when we come back to you with
the written requests that you asked for.
Mr. Markey. But there is no technological obstacle.
Mr. Wurtzel. There is no technological. I think, as Gail
mentioned, there is an esthetic issue, there is a practical
issue with respect to how does it work best. The way we do
these things is mock them up and take a look at it.
Mr. Markey. People have just come out of 2 minutes of
commercials for God knows what, so the esthetic of having a
little warning on the show cannot possibly be that----
Mr. Wurtzel. I understand. But you asked a number of
questions including at each commercial break and when, and
honestly, at this point I am not in a position to give you a
commitment on it. But it is something we would certainly take
seriously under consideration.
Mr. Markey. Mr. Paxson.
Mr. Paxson. Actually we have never showed anything on the
network in all the years we have been on that would require
anything other than the family friendly icon. We have only done
it once, and we did it this week. That was when we showed the
making of The Passion of the Christ, and we did address it
before the program began and at each break in the program. And
if it comes to the point again of having to portray that kind
of program, we would follow the same concept we have in the
past of doing it after every break.
Mr. Markey. Would you air an audio voiceover when the
ratings icon appears on the screen at the beginning of the
show; would you give a voiceover? Mr. Wallau.
Mr. Wallau. Yes.
Ms. Berman. Yes, we would consider doing that. We have not
done that yet.
Mr. Wurtzel. We would consider it as well.
Mr. Markey. Seriously consider it, or are you favorably
inclined toward that?
Mr. Wurtzel. We do our own advisories in addition to the TV
advisories. Those do appear with both video and audio, so it is
not as if we have not done those in the past. So the fact of
the matter is we have experience doing it, and I think that is
something we would seriously look at.
Mr. Markey. Will you do that, Mr. Paxson?
Mr. Paxson. Yes.
Mr. Markey. Will you provide us in writing your network's
plan for airing PSAs on the TV ratings systems, spelling out
the number of PSAs, for how long, over what timeframe, and what
times of the day? Will each of you provide your plan to the
committee to ensure an enhanced usage through PSA advertising
of the V-Chip?
Mr. Wallau.
Mr. Wallau. Absolutely. We aired a campaign in 1999 to the
end of 2000. We aired approximately 185 PSAs, 50-second PSAs,
about 15 percent of them in prime time. We would expect to
exceed that campaign both in the amount, the number, the span
of time of that campaign, and we would lay out the entirety of
the plan and report to it at whatever time intervals that you
find necessary.
Mr. Markey. My time is going to run out.
Would you dramatically increase the PSAs on the V-Chip, Ms.
Berman?
Ms. Berman. Yes, we are, Congressman, already, and we will
be happy to provide you with a plan Mr. Wurtzel. We will
provide you with a plan.
Mr. Markey. A dramatic increase?
Mr. Wurtzel. We intend to include them in The More You
Know. At this current time it is about 4 to 5 minutes of spots,
about 22 to 25 spots per week, and they would be a substantial
part of that.
Mr. Markey. Mr. Paxson.
Mr. Paxson. We have been doing it ever since we met you in
your office many years ago, and we will continue, but the
quantity and number we will put on paper.
Mr. Markey. If you all promoted the V-Chip and the rating
system the way you promote a new show, we would be in great
shape.
Again, 47 percent of parents with kids 12 and under use the
V-Chip if they know there is a V-Chip in their TV set and that
information is made available to them. I think you are in a
position, if you take this opportunity, to give the parents the
information they need, and only you are in that position.
I will ask you this question, Ms. Berman. TV Guide is a
news company, and they do not actually put the ratings in the
TV Guide. Do you think it is time for TV Guide and newspapers
to put the ratings there so the parents can see it on a daily
basis and use it as guidance for the programs people watch?
Ms. Berman. I do know, Congressman, that TV Guide provides
the ratings on their onsite channel. I also know they provide
it on their Website. I do not know the intricacies of the
magazine as that is Gemstar, and it is somewhat separate from
my purview, but I will get you that information as soon as I
can.
Mr. Markey. That would help tremendously. It is the way in
which people follow television.
Ms. Berman. Yes. I understand your point.
Mr. Markey. It would really help a lot, and I think it
would solve a lot of problems if the parents had the
information and the knowledge to use the technology to protect
their kids in their own home.
Thank you, Mr. Chairman.
Mr. Upton. Mr. Barton.
Mr. Barton. Thank you, Mr. Chairman. I just have one or two
questions. My first question is on an issue that I alluded to
in my opening statement. It is the fact that we seem to have
fairly good agreement that we need to increase the fines on
over-the-air broadcasters. We seem to have agreement that we
need to have some ability to sanction the individuals who
commit the indecent or state the indecent comment on the air or
the radio or television. But when I was talking to one of you
yesterday, a point was brought up that as we do that on the
public over-the-air stations and radio stations and television
stations, we create a situation where you can move the more
questionable material and acts to satellites and to cable
television where there are no sanctions right now.
So my question to the panel, this may not be the bill to
tackle that issue, but is there any interest in trying to come
up with a series of fines and/or sanctions that would be
applicable to satellite and to radio stations like XM? Because
if my daughter picks up the clicker and turns on TV, there is
no difference to her whether it is--whether it is ABC over the
cable system or whether it is a cable channel, and the FCC
right now apparently has no jurisdiction over the cable
channels. So is that an issue that concerns you folks?
Mr. Wallau. Yes, it does. I spoke earlier, Mr. Congressman,
about the fact that our standards, I believe, keep all of the
networks inside of the indecency limit, legal limit, and that a
lot of what is seen to be the deterioration of television is
not what is being broadcast over the air, but rather what is on
cable and satellite. And so it is a great concern to us, and a
level playing field, especially in a universe in which there is
more viewing done on cable and satellite today than is done on
the networks that are represented here, is something that makes
a lot of sense to us, yes.
Mr. Wurtzel. I would say that any meaningful dialog with
respect to content needs to bring all of the providers to the
table. The four networks account for 38 percent of market share
of viewing. Cable in equity accounts for 50. If anybody wants
to really have a conversation about content, it is
indispensable that everybody who provides the content be a
participant.
Mr. Paxson. I believe the big issue here is what the
American public own. They own the air ways. They own the
satellite orbital positions. They own the right of ways of the
streets, and they own the microwave frequencies. You do have
the power under the existing law.
I am aware of a major communication law firm that is pro
bono doing the work to substantiate that legally that you have
the right to regulate obscene, indecency, and especially
pornography, and we will submit that to the committee.
Mr. Barton. Mr. Hogan and Mr. Pappas.
Mr. Hogan. Congressman Barton, it is a concern for us, and
before I consider the other media, I have a concern that there
is consistent expectation and enforcement inside the radio
industry first, but we would be very concerned that the playing
field is as level as it can possibly be.
Mr. Barton. Mr. Pappas.
Mr. Pappas. Mr. Barton, I think you very correctly assess
how the American people think of this. They have made their
mind up already. And you are right. To them, there is little
distinction between indecency or profanity that is occasioned
by one means of transmission over that of another having some
sort of skirt to hide behind.
I am not a lawyer. I am just a broadcaster, and I think we
do not need to ask lawyers for what duty is about or what
decency is about. Moreover, if shouting ``Fire'' in a crowded
theater when that is not true is an impermissible form of
speech, then I believe this Congress can clearly adopt hundreds
of studies that have already been done as the record and basis
for finding that the broadcast of indecent or profane material
at times when children are able to watch it over any medium of
communications in fact would be something that could be
constitutionally constrained.
Mr. Barton. My time has expired. I do not want to mislead
the panel. First of all, I agree with what all of you all said.
I understand there is a difference between, as the cable
industry is beginning to do, repackaging so that your premium
channels and your adult-oriented channels, somehow you had to
pay more, and there is obviously an informed knowledge that
somebody is making an affirmative step that they want to
purchase that as an add-on to their basic package. But if it is
the basic cable so that a child that picks up the clicker and
turns on the television has no differentiation between the
over-the-air broadcast that originates at the affiliate and the
broadcast that originates on the cable channel, I think we can
do something about that. And I know our friends in cable and
satellite are going to be willing to work with us on it, but I
am very pleased to hear the answers that you all gave.
Mr. Chairman, I yield back.
Mr. Upton. The gentleman from Michigan Mr. Dingell.
Mr. Dingell. Mr. Chairman, thank you.
Ladies and gentlemen of the panel, welcome, and thank you.
I also thank NBC, Fox and ABC for your timely responses to my
letter.
Today I want to question the effect of raising the maximum
penalty beyond the $275,000 per violation originally proposed
and compelling the FCC to refer to revocation proceedings the
licenses of repeat offenders, and removing the presumption of
license renewals from these licensees that violate the
indecency rules. I am going to ask questions, and I hope that
you will each answer this question yes or no.
The first question, if you please, gentlemen and lady, is a
$275,000 maximum penalty sufficient to deter the behavior of
companies that have billions of dollars in annual revenue? If
you would please start on the left, sir. On your right. Is it
enough or not, yes or no?
Mr. Wallau. I am sorry, Congressman. The fines presently
are fines of our affiliates.
Mr. Dingell. I apologize. My time is very limited. Yes or
no? Is it enough to deter, or is it not enough?
Mr. Wallau. No.
Mr. Dingell. Ma'am, if you please?
Ms. Berman. I believe it is enough. I believe the current
fines are enough in order to take responsibility for our
actions. That is the goal here.
Mr. Dingell. Yes or no?
Ms. Berman. Yes.
Mr. Dingell. Next witness.
Mr. Wurtzel. I think the fine be could be raised in terms
of the deterrence.
Mr. Paxson. I believe the fine should be set at whatever
limit you all determine, but the timing of the FCC actions to
complete the process is more important.
Mr. Dingell. Next.
Mr. Hogan. Yes, it is sufficient.
Mr. Dingell. Next panel member.
Mr. Pappas. Mr. Dingell, the increase is sufficient, but it
does not go far enough. The idea is to keep such contents off
the air, and I would respectfully recommend that this committee
assure----
Mr. Dingell. If you please, I have such limited time. I do
not mean to be discourteous, but it is just the way the cookie
crumbles around here.
The second question, starting again on your right, lady and
gentlemen, should the FCC be required to designate to a
revocation proceeding those licenses where the licensee is
determined to have violated the indecency rule on three
occasions during the license term? If you please, sir, yes or
no?
Mr. Wallau. I honestly am not qualified in terms of my
knowledge of the legal issues involved, Mr. Congressman.
Respectfully, I do not know the answer to that question.
Mr. Dingell. Ma'am, if you please.
Ms. Berman. I am also in a similar position to Mr. Wallau.
I cannot answer that because I do not know the information well
enough, sir.
Mr. Dingell. Thank you.
Mr. Wurtzel. No, sir.
Mr. Paxson. Yes.
Mr. Hogan. Yes, if there is sufficient due process.
Mr. Pappas. If I do the crime, I will pay the time, but not
if I am not the one who did not originate the content. That
would be totally unfair.
Mr. Dingell. Next question. This will go to the network
witnesses for NBC, ABC and Fox in any order you choose. Again,
yes or no. As a matter of common practice, do the affiliates
have the right to review, and by that I mean actually review
the network programming in order to determine whether the
content may be indecent or otherwise unsuitable to their local
communities? If you please?
Mr. Wallau. Absolutely.
Ms. Berman. They do have that right. They may not have the
time depending on what particular program it is, to be honest
with you, sir. Some things come in rather late, and it is very
difficult to get them out to an affiliate, but what that
affiliate is provided with on a weekly and if not daily basis
is information about the programming coming, promotional
information, et cetera, so no programming should come as any
surprise to them.
Mr. Dingell. Thank you.
Sir.
Mr. Wurtzel. We have the right. As a matter of policy we
actually send down, prefeed certain programs that we feel are
sensitive and may be an issue so the affiliates can make a
judgment on their own.
Mr. Dingell. Mr. Pappas, if you please. You are concerned
about the future of local broadcastings. I have observed your
written testimony, and it was excellent. I commend it to my
colleagues. I would like to have you take a minute to describe
your perspective on the program clearance process in today's
marketplace. Specifically, what is your experience in working
with the networks as far as previewing, clearly programming and
editing or ordering content which you believe may or may not be
suitable for your local audience?
Mr. Pappas. I will site a most recent example. About a
month ago we sent a letter to Tony Vincicara at Fox Network
requesting that in the future we be provided in advance
episodes of certain telecasters, certain programs. He has yet
to answer our letter, sir.
Our experience is one that we are frequently told that
shows are either delivered too late or that there are practical
impediments. Unfortunately, I take the approach that these
folks to my right are our partners, and we jointly have been
part of something over the last 75 years that brought the
greatest system of entertainment to this country, but the last
10 or 15 years things have gone awry. So my experience is
things have gone off track, and the balance is now off kilter,
sir.
Mr. Dingell. Thank you. Ladies and gentlemen of the panel,
I apologize to all of you for constraining you so much on time,
but you will observe I have exhausted my time by a minute and
14 seconds.
Mr. Chairman, I thank you.
Mr. Upton. Thank you.
Mr. Bilirakis.
Mr. Bilirakis. Thank you, Mr. Chairman. I am going to
follow up on Mr. Dingell's questions.
The right to reject rule. Mr. Pappas, could you briefly
explain that rule, number 1? And, number 2, tell us if you feel
that the FCC is enforcing the rule.
Mr. Pappas. The right to reject rule was put in place a
long time ago in order to ensure that if local licensees,
reflecting their local markets, tastes, needs and interests,
would be able to review and then accept or reject network
programs, or for that matter substitute a program which in
their reasonable judgment would be of greater local importance.
The FCC has not been enforcing that rule, sir. And this
petition that was submitted by the group representing over 800
affiliates, in fact, maybe nearly 1,000 affiliates, contains
all of the documentation that provides further answers to your
question.
Mr. Bilirakis. That was submitted to the FCC when?
Mr. Pappas. Three years ago, sir.
Mr. Bilirakis. Have you had any communications with them
regarding that petition, any reasons why they haven't responded
to it, et cetera?
Mr. Pappas. I think it is fair to say that numerous
broadcasters representing the National Affiliated Stations
Alliance, and even including I, have made trips to the FCC. I
was there last December, the very first week of December, in
fact, asking why action had not been taken.
Mr. Bilirakis. I specifically asked every one of the
Commissioners in the last hearing what their position was on
that rule; in other words, giving the local affiliates who have
the responsibility if, in fact, it is bad, indecent
programming, they have to pay the fine, et cetera, if they feel
that, in fact, the affiliates should have that right to reject
if they wanted, and every one of them said yes.
I don't think it is even worth--I mean, it wasn't even an
interpretation on my part. Every one of them said yes. Now, why
in the world they haven't responded consistent with that, I
can't quite understand. What would you like Congress to do, Mr.
Pappas?
Mr. Pappas. Well, I think that whatever process this
committee and Congress follows, it should result in a genuine
lawful--an established by law process that assures that the
regulations that are now on the books are truly enforced and
that a broadcaster is free, without penalty and without
punitive business result, to review, accept and reject
programming.
We are the last bulwark. As Congressman Markey put it 2
weeks ago, the local broadcaster can be the best defense
against defensive or profane programming.
Mr. Bilirakis. Well, do you--you are sitting here with your
partners, as you refer to them. And now this thing is being
highlighted as a result of the hearings and whatnot.
Do you have a level of confidence that the networks will,
in fact, truly grant the affiliates these rights to reject, or
do you still feel that there has got to be action taken on the
part of the Congress, if you will, and certainly maybe a
clarification of the rule by the FCC?
Mr. Pappas. Well, Congressman, I am very encouraged by what
they have said today, but in the affairs of men, and in order
to maintain civilized and regular conduct that protects
society,we need laws, and that is why we are here. That is why
you are here as the best bulwark for the benefit of our
citizenry. So I think strong, clearly understandable laws are
absolutely what are required.
Mr. Bilirakis. Do you feel that networks have strong-armed
affiliates in their affiliation contracts such that affiliates
have little control over their programming, no matter what we
say here? And we talk about the rule, et cetera, et cetera.
What--is that something that you feel you can safely answer?
And I use the word ``safely'' underlined.
Mr. Pappas. It depends on the strength of the affiliate
group. The stronger or bigger or more financially invulnerable
the group, the less likely that they would have succumbed to
pressure, or sometimes the groups are as well quite highly
principled.
But, in too many cases, yes, they have been strong-armed.
All it takes, as we know, in activities such as you refer to,
are a few examples to be made of. And, unfortunately, that has
happened over the last 10 years. And it is good, though, that
things are coming back to a center point. I mean, the magic
when things work right of the network and affiliate
relationship is terrific, and when strong local stations that
really reflect the local markets interests are coupled with
wonderful networks who are doing their best to maintain
effective and competitive programming, but where there is a
balance of genuine power on the clearance of that content, then
that is when we have had the best of broadcasting in this
country.
Mr. Bilirakis. Well, my time has expired. Thank you, Mr.
Chairman.
Thank you, Mr. Pappas.
Mr. Upton. Thank you.
Ms. McCarthy.
Ms. McCarthy. Thank you, Mr. Chairman. And thanks to the
witnesses for their testimony today and their interest in our
effort here in the Congress.
I wanted to reflect on some of the comments shared in the
testimony about a concern about running afoul of our first
amendment rights. And I know, Ms. Berman, in some of your
remarks in your testimony, and also Mr. Hogan, you talked,
while focusing primarily on the entertainment programming, you
know, about establishing new standards for broadcast news, for
broadcast channels, that will reflect the sensibility for the
viewing public, and I applaud you for that.
As you establish those, I just wondered--and in my opening
remarks I posed this question to you--about in that
decisionmaking process, while today's hearing is about
entertainment, I wondered if media news is the subject of these
conversations as far as how best to present that, since the--at
least the evening news runs during the supper hour and is
available to all levels of viewers.
I wondered if, Mr. Hogan or Ms. Berman, you would like to
reflect on how to carry that sensibility for the viewing public
as you establish it into place so that it is consistent for
your channels, and also without running afoul of our first
amendment rights.
Mr. Hogan. I would be happy to, Congresswoman, because it
is something that I am dealing with today. Without any
exaggeration since yesterday afternoon, when we announced that
we were taking Howard Stern off the air, I have had several
hundred e-mails, many, many, many of them accusing me of
ignoring first amendment rights and making a very, very poor
decision.
Some of the individuals felt like they didn't need to be
protected by a media organization. And what I would say is that
we have--as a licensee, we have a legal obligation to prevent
inappropriate, indecent material on our air at those times when
children are most likely to be listening, and that for us will
be the foundation of our guidelines going forward.
Ms. McCarthy. Including, Mr. Hogan, during the news hour
that runs early in the evening over the suppertime?
Mr. Hogan. Well, the hours for radio and television are a
little bit different. Our prime time tends to be in the
morning, not so much in the evenings. But it would be
consistent throughout the day.
Ms. McCarthy. Thank you.
Ms. Berman.
Ms. Berman. Well, just to let you know, Congresswoman, our
prime time on FOX runs from 8 p.m. To 10 p.m. So under my
purview at the network are the hours of prime time. However, I
appreciate your point very much, because obviously probably
some of the greatest violence shown on television is shown in
the news.
What I do think is interesting about what you had said
earlier in your opening statement was the fact that we have an
opportunity, I think, in terms of the news these days, to see
multiple perspectives on the news. It is not something that
when I was growing up we necessarily had. So I do think that
even though I have at times turned a news broadcast off when my
children have entered the room, and that goes sort of across
the board, I have turned off many different newscasts across
the board, I recognize it as a--as an issue and a problem. And
I am concerned about it as a parent.
I do think that it is important that the news be able to
explore the reality of the world that we live in, and some of
that is not terribly pretty or nice. And I do think that where
it is being exploitative, one should have a good look at it.
But it is not in my purview, and I do want to let you know
that. I appreciate the point.
Ms. McCarthy. I appreciate your answer, your response, and
your testimony and what you are attempting to achieve, both in
your work space and in the industry overall, and I am glad for
your sensitivities to it. If any other member of the panel
wants to weigh in, I would appreciate that, hearing from them,
if my time--my time has expired.
Mr. Upton. The gentleman from Illinois Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman.
I gave everyone a heads up at the opening statement, so I
am going to follow up, and we will just go down the table. Mr.
Wallau, what is--not Disney's, okay? What is ABC Television's
response and receptiveness to the .kids.us Web site?
Mr. Wallau. We are engaged in a process working with the
Web site. We will have content on the Web site by mid-April.
Mr. Shimkus. Thank you.
Ms. Berman, the mother of two 11-year-old twins.
Ms. Berman. Boy and a girl.
Mr. Shimkus. I have an 11-year-old son.
So what is the great Fox Broadcasting Company going to do
with .kids.us Web site?
Ms. Berman. We think it is a good idea to provide a safe
haven on the Web. We will definitely look into it, sir. I can
also let you know that our Web site has a very interesting part
of it which informs parents of the use of the V-Chip and
informs parents about the ratings system and what each rating
means. And I think it is very important as more and more people
and individuals and youngsters are surfing the Web.
Mr. Wurtzel. Well, to be fair, it is the first that I have
heard of it.
Mr. Shimkus. That is why I asked.
Mr. Wurtzel. But honestly, I think--I would commend you and
the other Members who have put forth a Web site, or at least an
initiative to try to have a safe harbor within the Internet
space. This is something that we would absolutely consider
partnering with.
Candidly, we have a moreyouknow Web site, and also the NBC
dot-com Web site is also very family oriented.
Mr. Shimkus. I am going to talk over the different
provisions, but a commitment to look and try to deploy would be
well received, I think, from this committee.
Mr. Paxson.
Mr. Paxson. Well, for approximately 4 years we have offered
our viewers Paxway, which is access to the Internet which is
family friendly, which filters all things that the parents
really don't want their children to see.
We have thousands of members who utilize that service, and
we want to obviously look and see how we can pair this service
which we are trying to add more and more people to on a daily
basis, for a commercial reason, how we might interact with that
concept. And we will get back to you, because, as Mr. Wurtzel,
I am not that familiar with it actually.
Mr. Shimkus. I would have hoped that you would have been
more, based upon our discussions previously, because I think it
is just what you all are trying to do.
Mr. Hogan.
Mr. Markey. Will the gentleman yield briefly? So the
panelists understand, that was a bipartisan bill, and there is
no disagreement, and any help you give us, I think, would be
very much appreciated by all of the members of this committee.
Thank you. I thank the gentleman.
Mr. Upton. I want to underscore that as well. Dot-kids is
important to all of us here in lots of ways, whether we are
dads and moms, or certainly as members of this subcommittee.
As I told the gentleman from Illinois, we intend to have an
oversight hearing on the progress of where we are at before the
next month is out is my goal. And we are all working, at least
in my office, to actually have an Upton.kids work with our ISP
here on the Hill. I applaud the gentleman's leadership and
yield back.
Mr. Shimkus. Thank you.
Mr. Hogan.
Mr. Hogan. That certainly is something that we can endorse
and that we will be sharing with our individual managers of the
Web sites.
Mr. Pappas. It is a fine initiative.
Mr. Shimkus. Great.
I would also respectfully ask that maybe you could have
your folks here in DC. Maybe come by my office and keep me
updated on your progress, especially as we move to the hearing
that the chairman has promised.
The Washington Post, and I am not a daily reader of that,
but they did an article on February 20 that just talked about
firms ignore the kids-only Internet domain, and I ask, Mr.
Chairman, for a unanimous consent that this article be
submitted for the record.
Mr. Upton. Okay.
Mr. Shimkus. In there I am quoted, and I say, the reality
is I have to get more engaged and keep pushing. If we--and when
I said we, that is the committee and really the intent to be--I
have to keep pushing for it to be successful, and those that
follow the committee know that I am a one-trick pony on this
issue right now.
But it also says, no dot-kids Web sites are dedicated to
soccer, dinosaurs, cartoons and other topics dear to kids'
hearts. And so I would encourage folks to go through it.
Sites must meet strict content restrictions that bar
sexuality, violence and profanity. They are not permitted to
gather information from visitors, nor are they allowed to
include chat rooms or links to sites outside of kids.us. That
is the key.
You all may have a dot-org, you may have a dot-com. What we
try to do is make sure kids aren't exploited on the World Wide
Web. And that--so you can't hyperlink out. You can't establish
chat rooms. So I think if you really take a good review of what
is offered on this site, I think in addressing the protection
of kids, my kids now are starting to gravitate to the World
Wide Web, it scares me to death.
And I would like to see HarryPotter.kids.us. It is the
chicken and the egg debate. From 12 sites up, what kid is going
to go surf the kids.us site? So it might take a little risk. It
might take some adventures to get your children appropriate
material identified for kids. But, again, as the ranking member
and the chairman have said, if you do, I think it will go--help
us great ways of helping clean up the Internet and directing
kids to child-appropriate programs and shows that you are
broadcasting. We all know the inappropriate stuff. There is
some appropriate stuff out there, and we ought to direct
appropriate-age kids and viewers to those sites. Let's make
.kids.us one of the ways. Thank you for agreeing to keep us
updated.
Thank you, Mr. Chairman, for calling a hearing on that. And
I look forward to working. I yield back my time.
Mr. Upton. Mr. Green.
Mr. Green. Thank you, Mr. Chairman.
My first question to both Mr. Wallau, Ms. Berman and Dr.
Wurtzel, all the networks agree that the networks are
responsible for network programming that they produce. Should
the affiliates be responsible for the entire FCC fine when a
network produced a program that it is deemed indecent by the
FCC?
Mr. Wallau. If an affiliate was fined because it relied on
our judgment about what was indecent, we would stand behind our
judgment, and we would stand behind our affiliate, and we would
indemnify our affiliate.
Mr. Green. Is that in the contract with your affiliates?
Mr. Wallau. It is.
Mr. Green. Ms. Berman.
Ms. Berman. I do not believe it is in our contract, but I
would have to check for you, Congressman. Right now in the
incident that we are approaching as related to the Billboard
Music Awards, we have agreed to stand behind our affiliates for
the accidental use of the expletive words that came out over
that broadcast.
Mr. Green. Or any clothing malfunctions?
Ms. Berman. That we have assumed as our responsibility. But
I do not believe that is policy.
Mr. Wurtzel. I can't tell you whether it is in the
contract, but I would be happy to get back to you on that. What
we do is by sending down programming in advance to our
affiliates, we really give them the opportunity, which is the
ultimate objective, to decide for themselves whether or not a
program is appropriate for their particular market.
Mr. Green. That brings up the next question. I understand
that potential news shows used to be sent for preview to your
local affiliates, and feedback from the affiliates. Does this
still happen?
Mr. Wurtzel. Sure.
Mr. Green. Does it happen in ABC and Fox?
Mr. Wallau. We have a process of informing our affiliates.
We show them the pilots of new shows .We inform them of the
content of continuing shows. If there is any shows that have an
advisory, generally we prefeed them.
We also--if there is a show that is--there is not a
precedent for, if it is opening new ground, we preview the show
to them for their ability to look at it to see if it conforms
with what they want to have on their station.
I think the important thing, Congressman, to know about the
process, I can only speak for ABC, is that we have never had an
affiliate complain about the process. No one said, you know
what, you sent something down to me, or you didn't send
something down, but you should have.
I have been sitting on the board of Governors that
represents the affiliate body for a dozen years. I have been to
every affiliate meeting. Never has an affiliate raised an issue
about the process that we have in place for them to look at the
shows that we give to them and decide whether they are
appropriate for their station.
So I assume, by the lack of this being an issue of any
kind, that the process works. If they get to a point where
there is a situation where it doesn't work, then I assume they
will communicate it to us. They just have not.
Mr. Green. Okay. Have any of the affiliates--and a good
example, again, community standards in New York and California
are obviously different in Houston, Texas. Do those different
affiliates, say, for example, in Texas, have the opportunity,
and have they commented on them, on network programming? And
what is the status of that? Do they have the ability to reject
it?
Mr. Wallau. Yes.
Mr. Wurtzel. There is a constant dialog with the affiliate
and the network all of the time, and they have every right, if
they feel that there is a program that they have seen that
isn't appropriate for them, to cancel. I mentioned earlier
about Saturday Night Live, for example. I mean Salt Lake City
feels it is not appropriate, and we respect that decision.
Mr. Wallau. Congressman, if I can just say, to the point
that Larry Pappas has ABC stations, he is an esteemed
broadcaster and a partner of ours, I would like to enter in the
record the contract we have with Mr. Pappas' station which says
the following: Nothing herein contained--nothing herein
contained in the contract shall be construed to prevent or
hinder you from rejecting or refusing network programs which
you reasonably believe to be unsatisfactory, unsuitable or
contrary to the public interest.
Mr. Green. Okay.
Mr. Wallau. To me that is about as definitive as we can be
about the right of the affiliate to control the content.
I have told you the process makes sense. I would also just
as a matter of procedure since----
Mr. Green. Well, let me get Mr. Pappas' follow-up, though,
because I only have 12 seconds left on my time.
Mr. Pappas, I have a question of you, but mainly because I
appreciate your support for the indemnification amendment, but
you have heard all three networks. I know that you have--I know
in Houston you have TBS Ticker. But can you comment on the
response, and how it is as an affiliate owner?
Mr. Pappas. Yes, sir. First, I don't want to get into a
debate on our particular affiliation agreement, but I can state
for the record that in our company's case, we were unwilling to
sign any other form of agreement than the one that existed in
1990 when we bought the stations.
Second, the NASA petition very clearly contains examples.
And this petition represents, as I said, over 800 to 1,000
affiliates' views, and so I think it will speak for itself, and
the contents in it speak for itself.
As to the second point, I really do appreciate what my
colleagues here have had to say, and I think that their
newfound sensitivity and the remarks they have made to you,
that they hear you and that they hear the public, are
enormously meaningful, and I don't think that they are
insincere. However, the paradigm that really exists is that the
practical processes that are--that they should be availing, so
that if a licensee wants to easily see a show well in advance
of the air date, or at least a couple of days in advance of the
air date have been unavailing. Again, it is that balance that
needs to be restruck.
Mr. Green. Well, Mr. Chairman, I know I am out of my time,
but I appreciate the extra time. But I also know that we also
have some newfound sensitivity by the FCC when they testified
before us, but I appreciate that. I think we are moving in the
process. And thank you, Mr. Chairman.
Mr. Upton. Mrs. Wilson.
Mrs. Wilson. Thank you, Mr. Chairman. I was struck in
reading the testimony of the differing prescriptives on exactly
how much authority affiliates and general managers have with
the comment from the networks on the one hand that affiliates
very rarely exercise their preemption rights, and they are
fully capable of doing so; and then Mr. Pappas' perspective
that in practice you can't do it without tremendous risk; and a
long list in the addendum which you gave to us of the kinds of
tactics that are limiting local broadcasters' decisions to air
programs, and I would like to see some further discussion and
comment on that from each of you.
Why is it that you believe, from the networks' perspective,
that Mr. Pappas is wrong? And, Mr. Pappas, why do you think the
networks have their perspective?
Mr. Wallau. If I could just say, Congresswoman, one thing
that might be helpful is to enter in the record, since Mr.
Pappas has requested that the NASA petition be entered in--the
responses of the networks to that petition would be helpful to
the subcommittee in understanding our point of view on what
happens so that there would be a totality of information of the
two perspectives. So if that can be done, I would really
appreciate it.
I am--I think Harry can speak for himself. I am aware of
where his point of view comes from. From our point of view, we
have not had complaints about this issue on the ground in terms
of people calling us about specific shows. We have had people
who did not carry shows that they chose not to screen. We have
had many instances of screening shows and then people carrying
all of them. When Saving Private Ryan aired, we explained what
the content was, we prescreened it on both occasions that we
aired the show, the movie, and all of our affiliate body
carried it, understanding--having made their own decision that
they understood that there was some totally unprecedented
content in that movie, but in the context of that movie, it was
acceptable for that station. The process works from our
perspective, as I said before, based upon the fact that we have
had no complaints about it.
We have a NASA petition that, to be fair, Congresswoman, is
about our total relationship and trying to position on issues
that have nothing to do with indecency, the ability to have
control of the content of the affiliate station. It is a much
larger position in the NASA petition. And I can't tell you what
the reasons are for this being raised in the context of
indecency, but I can just tell you that the process that we
have in place is not one that our affiliates have ever
complained in any forum that I am aware of.
Mrs. Wilson. Mr. Pappas, have you ever complained?
Mr. Pappas. Sure we have. I sent letters years ago even to
Rupert Murdoch's wife with a carbon copy of what I had sent to
Barry Diller and Mr. Murdoch.
Ma'am, the law that this Congress established provides that
a licensee's duties are personal and nondelegable, and that law
establishes that not a corporation, but rather the officers and
the principals of that corporation, are the ones to whom this
government looks for responsibility, for adherence to the law.
As I said earlier, I don't want to debate nor do I want to
personalize the presentation to this committee. The fact is
that at its core the solution that this committee is looking
for has to do with reflecting not what Harry Pappas wants, but
what the American people want, and the American people don't
want that content on the air. And that is who we work for. That
is who we have a duty to serve.
And so, ma'am, the reason this is not only appropriate, but
is, in fact, central to what you need to consider, is that
absent the licensee's unfettered right to accept or reject
programming, or to substitute programming that in their
judgment is, in fact, of greater local importance, and, in
fact, reflects the tastes and the needs and the interest of the
public it serves, then all of this about penalties is a mad
gesture that will result in no permanent change.
With all respect, my time will pass from this Earth soon
enough, but my two children are counting on me to have the
integrity to appear before you and to tell you the truth not as
a businessman, but to tell you the truth as a licensee. Thank
you.
Mrs. Wilson. Thank you, Mr. Chairman.
Mr. Upton. Mr. Wynn.
Mr. Wynn. Thank you, Mr. Chairman.
Mr. Pappas, obviously your testimony today is very
critical. Now, Mr. Wallau, I believe, read into the record a
statement saying that nothing in this agreement would abridge
your rights to reject programming, in essence. I am trying to
use shorthand. Is that true in fact? And, second, is that true
in practice?
Mr. Pappas. The language exists in some form in various of
the affiliation agreements, and depending, as I said earlier,
Congressman, on the licensee, it is sometimes modified
severely. And therefore, as a practical matter----
Mr. Wynn. Modified to have the effect of nullifying the
effect of that language?
Mr. Pappas. As a practical matter, yes, sir. That is why
these things are detailed in this petition that has been before
the Commission for 3 years.
Mr. Wynn. Okay. Can you give me two examples of any type of
negative consequences that have occurred as a result of an
affiliate challenging a network program or rejecting a network
program in light of the fact that Mr. Wallau cites the Salt
Lake City example of rejecting Saturday Night Live?
Mr. Pappas. Well, the process is such, Congressman, first
in the case of local content, say, like local sports and the
like, that might be chosen to be substituted or other content,
if there is a concern about a particular episode's content, if
it doesn't come down the pipe early enough to be previewed,
then essentially we have an empty right, and when we have asked
for that, what we end up with is our audience is absolutely
outraged at us.
And our audiences don't understand it. When they meet me,
they say, you own this station. How dare you do this? And when
I say, but we ask for the shows, and we are not allowed to get
them in advance, that is the consequence. I am breaking faith
with my audiences.
Mr. Wynn. So you are saying that you cannot reject a show
because you don't get to prescreen it in time?
Mr. Pappas. Right. We are not trying to--those are people
with whom we have had a symbiotic relationship. We are good for
them, they are good for us. We are not trying to pillory them.
But there needs to be the reestablishment of some balance that
has unfortunately fallen away in this rush to consolidation and
bigness.
Mr. Wynn. So you want the FCC to step in and change the
contractual relationship or provide some form of protection so
that you can either get the shows in a timely fashion or have
greater rights to reject them? Is that your----
Mr. Pappas. Mr. Congressman, you just hit the nub of it.
The FCC used to say that no broadcast station renewal of
license will be granted, in essence, to a national network that
has any provision in any of its affiliate agreements that in
any way prohibits--and then I will go back and quote the
language that Mr. Wallau read that is in my affiliation
agreement.
But, the FCC, in fact--and it is not--I am not being
partisan, because this didn't happen in one administration, and
it didn't happen under one political party's leadership, it
happened over 10 or 15 years--just stopped enforcing it, sir.
Mr. Wynn. Okay. Thank you.
Mr. Wallau. Can I just ask--to your point--if Harry would
just cite one example of one show that aired from the ABC
Television Network on the station in Kearney, Nebraska, that,
had he seen it before, he would not have put on the air, and a
complaint that he lodged with the network about a show?
Mr. Pappas. As I said earlier, Mr. Wallau, I am not here to
debate the shows, but you are as familiar with your program
schedule and the issues that are involved.
Mr. Wynn. Let me interject. Mr. Pappas, I think that is
probably a fair question. I want to give you an opportunity to
present your point, but I think that is probably a fair
question.
Mr. Pappas. Well, our management has complained about shows
that had unnecessary nudity that was not necessary to the
conveyance of either the theme or the----
Mr. Wynn. Have you rejected that program?
Mr. Pappas. Well, if it is not--if it is not provided far
enough ahead of time. But if you want to talk about an NYPD
Blue, not all of those episodes are bad, Congressman. Some of
them have got 90 percent good stuff, and 10 percent that could
be edited, were a person allowed the time to do that.
Mr. Wynn. We have regional variations in terms of what is
acceptable and appropriate. What is the standard that you
believe we ought to use in determining--is it 200 complaints,
100 complaints? Because sometime you get a small group making a
lot of complaints and expressing a lot of concern that is not,
in fact, reflective of the larger community. How are we, or how
was the FCC or any of us to make that, or what do you think
would be some guidance on that?
Mr. Pappas. I think that wiser heads than mine can suggest
an absolute number, and that is you folks. But it seems to me
that the basic issues you all have already identified here,
that the process should not be one that is slow; when the
Commission considers the issues, they should be promptly
resolved.
Second, I think if there is willful and intentional and
repeated and egregious violations of the laws that prohibit
profanity, indecency and obscenity, then if there are three of
those that occur, then the perpetrator of those should be
subject to greater penalties.
Mr. Wynn. Thank you, Mr. Chairman.
Mr. Upton. Mr. Walden.
Mr. Walden. Thank you, Mr. Chairman.
I want to go back to this issue of Howard Stern. And, Mr.
Hogan, maybe you can tell me. You have taken Howard Stern off
of your stations, the Clear Channel stations, but he is still
on other stations, correct?
Mr. Hogan. Yes, sir.
Mr. Walden. Who actually controls Howard Stern's contract?
Who does he work for?
Mr. Hogan. Ultimately he works for Viacom. I don't know
the----
Mr. Walden. He is Viacom talent?
Mr. Hogan. Correct.
Mr. Walden. So we get back to Mel Karmazin. He could take
the same steps. Do you know, is Howard Stern on CBS stations?
Mr. Hogan. Yes, he is on CBS stations, sir.
Mr. Walden. That is something to flag.
I want to ask, too, about affiliate agreements as they
affect radio, because, I mean--I always try and disclose the
fact that I am a licensee, too, and in the broadcast business.
What about affiliate agreements that your company has through
the Premier Network? How do you treat affiliates when it comes
to some of these issues about previewing programming? And then
I want to get to the TV side with the others. Can you speak to
that?
Mr. Hogan. We try and treat our affiliates the same way we
treat our own radio stations, and that is going to be in
keeping with our new initiative.
I had communication earlier this morning with the head of
Premier to ensure that all of our syndicated hosts are being
held to the same level of expectation and responsibility.
Mr. Walden. Okay. I hope that others that have affiliate
agreements are listening to that, because I think it is an
issue that Mr. Green, who has stepped out for the moment, but
has raised, and some of us feel pretty strongly; you hear it
today on this committee is--you know, who is really controlling
the programming?
And do you have a practical--you may have a legal contract
that says, you know, I have got the authority to edit, but in
practical terms it is nearly impossible in some cases to, you
know, see or hear this programming far enough in advance to
take an action.
I want to go to the TV networks now. What are your
standards in terms of allowing affiliates, such as Mr. Pappas,
to preview network programming? Do you have a written plan that
says, we will give all affiliates 24 hours, 36 hours, whatever
it is, in advance to--if they request, to review a program? Do
any of you have this?
Mr. Wurtzel. We don't have a written standards. What we do
is a lot of this is great common sense. First of all, I should
say that we encourage feedback from affiliates, because, as
everybody has mentioned, we live in a very diverse country with
many, many communities of varying standards, so we would like
to hear from them.
We do send, as a matter of course, episodes of programs
that we feel may have a concern on the part of some of our
affiliates. The fact is we don't prefeed the entire schedule
because it would be just impossible to do that, and the
affiliates would be overwhelmed.
Mr. Walden. Okay. Ms. Berman.
Ms. Berman. We have a similar procedure, Congressman. But I
would like to also add that our interaction with our affiliates
is daily. It is not just occasionally we--it occurs to us that
we have to interact with our affiliates.
Our affiliates make up the body of our network. I am on the
phone with the affiliates. I am on the phone with the board of
Governors on a monthly basis. Our staff is on the phone with
our affiliates daily. We provide our affiliates with the tools
that they need in order to sell the programming that we are
offering.
Mr. Walden. I understand that.
Ms. Berman. So I want to say all of these things, because
even in the event that they don't see a particular program,
because, as Dr. Wurtzel said, the unwieldy nature of that, with
182 affiliates, and sometimes, in fact, there is late delivery
on a particular program, and certainly with reality shows
those--that programming arrives later than we have--even
normally have. So I want to make it clear that our interaction
is daily.
Mr. Walden. I appreciate that.
I have less than a minute to go.
Mr. Wallau. We have the same situation as they described.
It would be a waste of both of our time to feed all of our
shows, because the vast majority of our shows do not have an
issue. We prefed NYPD Blue for 7 years. The affiliates didn't
seem to think it was necessary anymore, except when there was
this one episode that was further--more adult than normal. We
prefed those. We have been prefeeding it for the last year. We
started again to prefeed it.
I would just go to the point that was made by Mr. Pappas
that you cited NYPD Blue, and we have an affiliate who has not
cleared that show for 11 years, and he is still an affiliate of
ours. They did not lose their affiliation.
Mr. Walden. I have read your testimony. What I am hearing
from this particular affiliate is perhaps if there were some
standards networks had that said I call up 24 hours in advance
or 36 or whatever it is, and have the right to be able to
preview a show, I am not talking prefeeding every show.
Mr. Wallau. We have that process.
Mr. Walden. I guess I am trying to bridge some
communication here. Maybe I will give up because I am out of
time. But what I am hearing is that that right may be so
nebulous as to be ineffective, and that it would seem to me
that if you had a standard that said any affiliate has the
right 24 hours in advance to preview any show, or 36, or
whatever is practical, in their agreements, you might solve
that. But I will leave that up to you all to fight out. I
understand what you are saying, Mr. Wallau. I am just
suggesting that.
Thank you, Mr. Chairman.
Mr. Upton. Mr. Rush.
Mr. Rush. Thank you, Mr. Chairman.
To the panel, while much of the focus of our hearing today,
and part of the reason why we are here after at least three
hearings on this particular matter, most of the focus has been
concentrated on sexually indecent programming. And I am
concerned that too little time has been spent focusing on
violent video programming, which can be just as inappropriate
for children as content containing sexual acts or dialog.
And as such I would like to ask Mr. Wallau, Ms. Berman, and
Dr. Wurtzel the following questions. According to the National
Cable Television Association-funded national television
violence study that was released back in 1998, which, by the
way, is the largest content analysis of programming, nearly two
of three programs studied contained some violence averaging
about six violent acts per hour. More troubling, however,
according to the study, is the typical hour of programming,
children's shows featured more than twice as many violent
incidents, 14 as a matter of fact, than other types of
programming, 6. Additionally, the average child who watches a
mere 2 hours of cartoons a day may see nearly 10,000 violent
incidents each year, of which researchers estimate that at
least 500 are high risk for learning and imitating aggression
and becoming desensitized to violence.
And this is the study right here. And I am going to ask Mr.
Wallau, Ms. Berman and Dr. Wurtzel, are you aware of this
study, No. 1; and, two, do you think that watching repeated
acts of violence on television is harmful to children?
Mr. Wallau. Mr. Congressman, I believe that the process we
have that we have spoken about, including standards, in terms
of addressing standards for our programs does not address just
the indecency issues that we have talked about, but also
addresses violence.
If you look at our programs, we take theatrical movies that
come over with violence that is not acceptable on network
television, and we take out the excessive acts of violence that
are acceptable in theatres but not acceptable over the public
airwaves. We make multiple edits. There have been cases of 400
or 500 specific edits requested by our standards people to make
theatrical movies, which contain the most potential violence.
We have standards to address these issues.
Mr. Rush. I am rapidly running out of time. I have two
other witnesses that I want them to respond.
Are you aware of this program?
Mr. Wallau. I may have read the study, but--I have read a
lot of the studies on violence and its impact on children.
Mr. Rush. Ms. Berman?
Ms. Berman. Congressman Rush, I don't know whether I have
read that particular study. I have read studies on violence and
television. I believe the conclusions that these studies tend
to reach are inconclusive; however, common sense tell us that
viewing a lot of violence can equate to violent behavior. I
think that that is just a common-sense point of view.
It is why in our approach to the Congress today we are
talking so much about the V-Chip, which Congress wisely enacted
7 years ago. In the use of the V-chip, a parent can prevent
children from viewing programming that is--that is rated and
considered too violent. And I really want to stress that today,
because we find ourselves in situations on the network where we
are coming out of, because we are only 2-hour prime time--where
we are coming out of a show like American Idol on a Tuesday
night at 9 o'clock, entering into a program like 24 which goes
on after American Idol.
We are very concerned that the young viewers that might be
watching a show like American Idol will be coming into a
program like 24. It is why not only do we air our ratings logo
or icon, we also air a disclaimer; not only we print it on the
air, but we also state it, that viewer discretion is advised
due to violent content.
So there are messages that we can send out to prevent
viewers from inadvertently falling into programming, but we
encourage parents to do this.
Mr. Wurtzel. I have read the study. My training is as a
social scientist, so I spent a lot of time in the area of
violence. I think that violence is something that has to be
handled extraordinarily carefully. In fact, I think we do. As I
mentioned in my testimony, NBC's prime-time schedule really is
relatively violence-free in the sense that when there is
violence, particularly in the Law and Order franchise programs,
it really is about the consequence of the violence, it is about
the legal aspects of the violence, but we don't show actually
any interpersonal violence, and that is really one of the areas
that research would suggest is the problem.
I think the issue with one of the studies is they need to
be a little bit more specific with respect to what the source
is of the programming that they have concerns are, because I
think I would agree with Alex that we spend a great deal of
time editing these programs to ensure that some of the issues
that we know could be problematic with respect to violence are
addressed before they air on the network.
Mr. Rush. Thank you, Mr. Chairman.
Mr. Upton. Mr. Pickering.
Mr. Pickering. Thank you, Mr. Chairman. I want to thank you
for not only this hearing, but the hearing before. And our
purpose, I think, as a committee and as a Congress and, I
believe, as corporate leaders is to reaffirm our standards,
change our practices, hopefully have an acceptance of
responsibility, and then in the legislation establish
accountability so that whether it is through fines or the
potential revoking of licensing or making license renewal
conditioned upon upholding these standards, I think that is
what we are trying to do. And my questions are to that purpose
and to that end.
Dr. Wurtzel, one question that I have had as we go forward,
as you know, there were several instances, one was the F word
incident. And right now NBC is contesting whether that will be
viewed as indecent or if the FCC will reverse its decision.
I guess as we all try to accept responsibility and change
practices, would you agree that the F word really doesn't have
a place in prime time?
Mr. Wurtzel. Absolutely. I don't know how to more
unequivocally say this, but it is wrong. It was not something
that was ever planned or anticipated, and there is no way that
we would ever condone it.
Mr. Pickering. Does that mean that you will stop contesting
it at the FCC and pay the fine?
Mr. Wurtzel. I can't speak to the legal aspect of a
regulatory proceeding, but I can just tell you that that sort
of obscenity and a number of other obscenities are simply
inappropriate. We are not going to have it on NBC.
Mr. Pickering. In the brief that NBC filed before the FCC,
they said that the FCC decision or the complaint was logically
bankrupt. Your attorneys said logically bankrupt, but you are
saying something completely different today. And I think there
needs to be a consistency between what you put on the air and
what you contest at the FCC. It is kind of like a principle if
you are speeding, you don't contest it; you accept
responsibility, and you pay the fine. And I think that is the
same for Clear Channel.
I commend their actions of dropping Howard Stern, but you
still have proceedings going forward that you are contesting at
the FCC and possibly in the courts. And I think it would be
best, as we start over, as we start fresh, tell your lawyers,
let's pull back, let's accept responsibility, let's stop
contesting this, and let's have a new day. And I think if you
do that, you will have a greater sense of credibility. You will
inspire greater confidence in Congress, and as we go forward
into the accountability legislation, I think we will take that
as a good faith measure. But, if you are saying one thing here
and another thing at the FCC, and another thing in the courts,
we don't know which to believe.
So I commend you for your statements today. I commend you
for dropping Howard Stern. And I just ask you to go a step
further: Pull your lawyers back, accept responsibility, pay the
fines, and let's start anew. That is one thing.
Let me ask Mr. Paxson one question I have as it relates to
cable is to whether there should be a family tier of
programming. Is that something that you think could work,
should work? Is there a problem with that? And I realize you
are--you have a broadcast network, but as far as a package of
programs that would be deemed family friendly, is that
something that cable should consider?
Mr. Paxson. Well, I think that the broadcasters always had
to consider what was the family hour? What hours do we protect
the kids? And because of the fact that the cable and satellite
people use the same airwaves, the same frequencies, the same
spectrum as broadcasters, they should have the same
responsibilities. And I think that you have the power, because
of the Republic's ownership of the spectrum, to carry out the
same kind of indecency issues not only with broadcast, but with
cable and satellite.
Mr. Pickering. Let me ask one final question as my time
runs out, and the panel can respond to it. We are looking at
increasing the fines, but one thing that--for example, I don't
want Viacom in the marketplace to stick it in everybody's eye
and keep Howard Stern on the air and create a competitive
inequity to good conduct by Clear Channel. And if they think
that it is just a tenfold fine, they think that they can
probably make that up in market share by being on the edge, by
being more profane, more indecent. And I think for bad actors
like that we have to only have the stick of accountability of a
license renewal or conditioning process. Could you please
comment on that?
Mr. Hogan. Congressman, I would like the opportunity to
respond and say that I appreciate your words. I think your
analogy of a speeding ticket and paying the fine is an
interesting one.
The legal--I am not a lawyer, so please forgive me, but the
legal implications for paying that fine are significant, and so
we are very carefully considering that. And as it relates to
whether the fines are big enough or the stick is big enough, I
would ask you and your colleagues to consider proportionality,
to make sure that the punishment fits the crime. I don't think
there is a broadcaster out there that wouldn't agree that if
they transgressed, they should be held accountable. If I were
speeding, I would hate to be assessed capital punishment. And
license revocation for a broadcaster is as bad as it gets. And
so I would ask that you consider that as you move forward.
Mr. Pickering. Could we do like a three strikes or you are
out, or enough notices, or enough warning if you continue to
have repeat offenses; would that be a fair process?
Mr. Hogan. Congressman, it is my sincere hope that I nerve
have to consider that. We are making a specific decision to go
in a different direction, and I think that there are people who
are probably better equipped than I to respond as to whether
that is the answer.
Mr. Upton. Mr. Davis.
Mr. Davis. Thank you, Mr. Chairman.
I want to follow up on this line of questioning, give some
of you all an opportunity to speak who didn't.
I agree with your point, Mr. Hogan, about proportionality.
My question is directed to the view of each of you as to what
is being described as an amendment that Representative Markey
would offer, which would be an aggressive form of penalty that
would take into account the size of the company that was found
to have provided indecent or obscene programming and perhaps
even the gravity of the offense.
Mr. Wallau. Can I respond, Congressman, just in the context
of actually something I said earlier to something that
Congressman Pickering said?
Congressman Dingell asked a yes or no question about
whether the $275,000 or whatever the amount of the fine was
sufficient to deter a major media conglomerate, and I answered
that question no.
To the specifics of that question, I think that to the
point that was made by Congressman Pickering, market share may
be picked up. If you were a real--there might be an equation
that would make sense there economically. But the point really
is that no fine for indecency is a good thing for any
broadcaster for any--no matter how big the company is, No. 1.
No. 2, Congressman Dingell also said there needs to be
proportionality in terms of the size of the affiliate. If you
have 100 plus stations, $275,000 may be your entire operating
income for your station. It may put you out of business. So I
do think--there cannot be an absolute number.
The question from the Congressman was about the big media
conglomerates. I think when you get--it might not be enough
there; might be too much when you get down to the smaller
stations.
Mr. Davis . But you would further add that just as it
should be proportioned if it was a smaller company, that it
would be equally true that it would appropriate to be
proportionate if it was a larger company?
Mr. Wallau. I think the deterrent effect would be--if are
you talking about deterrent effect, then that makes sense.
Mr. Wurtzel. If I can just clarify for the record as well,
because I also said that, no, probably not. And again, what I
think I really would have liked to have said, had it not been a
yes or no, is the issue of proportionality. In other words, I
think that these things are rarely black and white and need to
be reviewed on a case by case, and then the proportionality as
well.
So I just wanted to clarify my comments.
Mr. Davis. So if I understand you correctly, if, given the
gravity of the offense and the size of the company, it might be
appropriate to have a larger fine than what has been suggested
in the bill?
Mr. Wurtzel. Well, I think that a lot of this has to be
taken into consideration, but it is one of these three-
dimensional chess situations where you can't look at any one of
these aspects without considering everything.
I think you are right. It is proportionality, it is the
offense, what exactly was it; whether it is a recidivist kind
of thing or it has happened many, many times, or whether it was
a one-time extraordinarily anomalous situation which no one had
control. I think these are things that really haven't been
discussed yet.
Mr. Wallau. I think the truth is and the fact is,
Congressman, that it really--at the end of the day, the fact is
that we are going to obey the law. And for us--and we are a big
part of the big, big company--the amount of the fine is not
relevant. It really isn't. It is really the fact of being fined
for indecency. As a television network that has the public
interest obligations that we feel, the existing amount, if we
got that, and we haven't, and I think that is important to note
that these fines have not been meted out to the television
broadcast television networks that are here, it has nothing to
do with the amount of the fine, it really has to do with
obeying the law and observing our public interest and
responsibilities.
So at the end of the day, I really think that all of the
talk about fines is not of the essence in terms of what our
decisionmaking process is.
Mr. Wurtzel. Let me quickly second that, in the sense of
what is key here, and I agree with Alex, it is not so much the
money as it is our reputation. I mean, that is far more
important than any of that. And I think that that is something
that we take extraordinarily seriously, whether the fine was
small or whether it was large.
Mr. Paxson. As a licensee for over the last 50 years, I can
only remember so many years ago when licenses were revoked. And
when was the last time a license was revoked, and under what
circumstances? The law exists. It is the enforcement of the law
which is left up to the Federal Communications Commission. And
I don't see them performing their duty in this area at all in
the last 15, 20 years. It has been only--the only one I can
remember in the last 15 or 20 years was where the licensee
committed a felony other than having something to do with his
license, and then he lost his license.
Mr. Davis. Mr. Paxson, what would you suggest that Congress
do to change the choices that the FCC will make in terms of
enforcement?
Mr. Paxson. I think the FCC has all of the laws that they
need in terms of revocation proceedings against a licensee who
does one or more events. It is up to the FCC. They are the
deciding body. They have the power. Empower them.
The FCC today has been, in my opinion, extremely inactive
in this area. As a matter of fact, all of us having licenses
here will tell you that we have things pending at the FCC 3 and
4 years, and we can't get decisions. So I think it is an issue
of getting the Federal Communications Commission to do the job.
Mr. Davis. So you would support a provision in this bill
that would allow the FCC to impose a larger fine than is called
for now based on the gravity of the offense, the size of the
company perhaps, whether it is a repeat situation.
Mr. Paxson. And in addition to that, a license revocation
proceeding, a full hearing before a hearing judge to determine
whether that licensee continues to be fit to hold a license.
Mr. Pappas. Congressman Davis, I think that Dr. Wurtzel and
Mr. Wallau have pointed out, though, the complexity of the
answer to the question. It has to include what they have
mentioned as well as the issue of was it willful or
inadvertent.
Was it, in fact, a continuing pattern or not? Was it, in
fact, something that displays bad faith on the part of the
perpetrator of the offense? And of course I will take one last
opportunity to repeat the punishment should only be visited
upon the party responsible for originating the wrong doing.
Thank you, Mr. Chairman.
Mr. Upton. Mr. Terry.
Mr. Terry. Thank you, Mr. Chairman.
Let me follow up on Mr. Davis's question. Mr. Paxson, you
gave a great opening statement, I appreciate that, and you
mentioned my question that I wrote down here about 1\1/2\ hours
ago. But I want to get it succinctly on the record. Do you feel
that the extraordinary time the FCC takes to review indecency
complaints against a particular show has in any way encouraged
radio and broadcast TV to become more edgy, to push the
envelope of decency? Let me start--I would like to have the
entire panel's opinion on the record.
Mr. Pappas.
Mr. Pappas. Yes.
Mr. Terry. You are allowed to expand if you want.
Mr. Pappas. I just think it is very straightforward. The
environment unfortunately, and I am not questioning anybody's
goodwill or intent or the like, but this got away from a whole
lot of folks, and the process that meant that that
consideration of the complaints was delayed meant, therefore,
that the effective regulation was denied.
Mr. Terry. Very good.
Mr. Hogan.
Mr. Hogan. Mr. Congressman, we have issues before the FCC
that have been pending for quite some time, and I can tell you
that faster and as well as thorough responses would, I think,
have an impact.
Mr. Paxson. I have to agree with my colleague Mr. Hogan.
There is no question about it, the process at the FCC for
processing anything today is extremely slow and a very big
concern of all broadcasters, and this one in particular, I
think, lends itself to, hey, go and do what you got to do; we
are not going to stop you.
Mr. Wurtzel. I honestly cannot personally comment because
we just have not had the kind of experience with respect to
this indecency with the exception of the Bono incident,
obviously. So I really do not have an informed opinion on it.
Ms. Berman. Congressman, we do not agree with that premise.
We have to put programming out on our air on a day-in/day-out
basis. The FCC, whether they take time or do not take time, we
have to be responsible broadcasters every day, and the timing
of their efforts is irrelevant as it relates to how we proceed
with our responsibilities on a daily basis.
Mr. Wallau. Congressman, what drives us is not the amount
of fines, is not the amount of time it takes to decide these
issues. The thing that drives us as broadcasters is simply the
reputation that we have and the fact that we cannot--as the
American Broadcast Company as part of the Walt Disney Company,
we cannot afford to allow content on our air that would result
in something being indecent and there being an indecency
finding. For us that is the real driver, and all the rest of it
is not of the essence.
Mr. Terry. I appreciate those answers. I tend to agree with
this half of table that I think the inability to timely render
decisions not only encourages, but creates confusion within the
industry of what the standards are, which leads me to my next
question.
During our last hearing, the Chairman Powell stated that he
felt that the definition of indecency is clear, understandable
and is a term of art determined over a number of years, a
number of court cases, and really encouraged us as this
committee not to tamper with the definition. Do you all agree
that the definition of indecency is clear? Is it clear to you?
Let us start down at this end of the table.
Mr. Wallau. Once again, it does not matter. We are so far
inside the line, we do not go up to that.
Mr. Terry. We will have a conversation about that.
Mr. Wallau. We do not go up to what we understand to be
something that is pushing the envelope in terms of indecency.
We are well inside the lines. So at the end of the day, it is
not a factor.
Ms. Berman. Again, we have to be responsible broadcasters
day in and day out. I do not know whether the legal terms of
indecency or are accurate as set by the FCC. I know that they
have waived on their guidelines. We would appreciate some
additional guidelines from them on this issue. They have
determined that certain things were indecent, then they were
decent, then they were indecent. It is a little confusing, but
we cannot operate that way. We have to operated daily, and we
have to operate within the common-sense guidelines of decency,
and these are the kinds of programs that we put out on a daily
basis.
Mr. Wurtzel. I cannot speak to the legal definition of
indecency, but, again, with NBC, No. 1, I do not believe we
have ever come close to these issues. And second, we are about
our own set of standards, standards that we feel are
appropriate, standards that we believe are right for our
advertisers, for our affiliates, for our audience, and that is
what we are responsible for, and that is what we stand behind.
Mr. Paxson. I think we would love to see as broadcasters it
being published, because I would go back to the example where
they took almost 12 months to respond to a particular event on
one of the networks, and they responded that it did not call
for a fine. And that is one of the reasons that you are holding
this hearing, because you all did not agree with them. So I
think a very clear definition would be very useful to all
broadcasters Mr. Hogan. I think we have both the ability and
the responsibility to draw the line for ourselves, and in the
case of our radio station, that means that our managers need to
be connected to their communities. They need to know their
audience. They need to understand what is acceptable in that
community given the great diversity across the markets that we
serve.
Mr. Pappas. Congressman Terry, part of the answer, as the
other witnesses have said, does include some clarification from
the FCC. It obviously was recently willing to review the
question of whether or not the F word used as an adjective was
legally sanctionable if it is used as a verb or a noun.
But I respectfully submit that if the whole thrust of what
we are here about today is the maintenance of those high
standards to which there has been reference, that--the careful
balance that was long ago struck by this Congress, that the
general managers of those network-owned stations as well as the
managers of the affiliated stations and the owners of those
were the last line of defense. And for especially today's
society where we have dual--both members of the household
working, where so much has changed in terms of the traditional
structure and way of life, if ever there was importance to the
notion that local communities' needs and tastes and interests
be observed, and if there was ever an importance about
constitutionality of a permissible structure for keeping
content off the air that the local community did not want, then
of all times this is the time to reassure and reenforce the
ability of the broadcasters working with their network partners
to make sure that their local communities do not see the
obscene or indecent or profane contents.
So increasing fines is not going to do it alone. Trying to
fashion constitutionally permissible definitions or
prohibitions by itself is not going to do it. We are talking
about the here and now. We are talking about today, about what
goes out over the air, over about 1,500 TV stations to
America's population. I think if you put the burden where it
belongs on the licensee, and then give that licensee the right
to really be sure that they are discharging the responsibility,
an awful lot of what has gone out of kilter would be restored
to the center line.
Mr. Terry. Thank you. That concludes my time, but I do have
other questions for the second round.
Mr. Upton. I was not going to go to a second round,
although Mr. Rush has implored me to allow him one more
question.
Mr. Rush.
Mr. Rush. Thank you, Mr. Chairman, for your generosity. I
really appreciate this additional time.
I have a question for Mr. Paxson. Mr. Paxson, of course
you've been the holder of a radio/television broadcast license
for over 50 years, and you have stated that no station under
your watch has ever broadcast indecent or obscene programs. And
I want to congratulate you and also commend you for your
outstanding work.
In your statement you mention that we should regulate cable
and satellite companies in the area of indecency, and that has
been stated over and over during this hearing. We had a hearing
a week or so ago, and in that hearing Commissioner Cox stated
that regulation or legislation should not be an avenue for
Congress to pursue when dealing with cable and satellite, but
perhaps we should have cable explore such options as offering a
family tier so that families do not need to receive channels
like MTV in order to get the Disney Channel, and I might even
add to get the PAX Channel also. Do you agree with the
statement of Commissioner Cox? Can you on that?
Mr. Paxson. The answer is yes, I agree with it. I think the
family ought to have a choice of what comes into the house. But
my testimony here today not only goes to the fact that give the
family the choice, but we have heard a lot about the V-Chip.
I have four grandchildren, two great-grandchildren and four
children. Now, growing up they all had TV. I did not go into
the room and watch what they were watching every time.
I think we have to be very careful about the public's
responsibility to their children. Yes, the father and the
mother have a responsibility of what their children watches. We
also have a real issue here going beyond that. We are talking
about the satellite, we are talking about the cable company. We
are talking about the right of ways all owned by the public.
And I can tell you that a majority of American people would
stand up and scream no in no way, scrambled, unscrambled, in no
way do we want our right of way, our licenses, our airways to
be used for pornography. Let us go past indecency.
Let us go right to the heart of the matter: pornography;
675 hours in one 24-hour period here in the Nation's Capital on
Tuesday. That is destroying the family. It is destroying it in
every way. The kids can get to the remote. Mom is not in there
every minute. A lot of families work. The kids come home in the
afternoon. Their parents go to bed at 9. They get up at 11.
There is just no way that the pornography issue should be
allowed to exist.
As to what is indecency, you could ask a million people and
get a million different answers. I think there has to be some
level of description. And the one that Chairman Michael Powell
offers is one that he has not been able to enforce. They have
not done it regularly and with impunity. That is something they
should undertake. They have the right to do that today for only
the broadcast licenses, and my contention is let us do it for
all licenses.
Mr. Rush. Thank you, Mr. Chairman.
Mr. Upton. Ladies and gentlemen, I want to thank you for
your hours of testimony this morning, for your preparation. I
want to particularly thank the Members who participated and the
staff.
I want to give notice to both Members and staff that we
were intending to mark this bill up next week. An official
notice will be going out soon. I appreciate all of their
efforts, Members and staff on both sides of the aisle, on
sharing thoughts on amendments to strengthen the bill as we
look forward to continue to negotiate and discuss an amendment
in the nature of a substitute, and that we hope to release when
it is ready.
This hearing again was particularly enlightening, and we
appreciate it very much. The hearing is now adjourned.
[Whereupon, at 12:51 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows:]
Network Affiliated Stations Alliance
March 11, 2004
The Honorable Fred Upton
Chairman
Subcommittee on Telecommunications and the Internet
U.S. House of Representatives
Washington, D.C. 20515

The Honorable Edward J. Markey
Ranking Member
Subcommittee on Telecommunications and the Internet
U.S. House of Representatives
Washington, D.C. 20515

Re: February 26, 2004 Hearing on H.R. 3717, the Broadcast Decency
Enforcement Act of 2004

Dear Chairman Upton and Congressman Markey: We respectfully submit
this letter and request that it be included in the record of the
Subcommittee's February 26, 2004 hearing on broadcast decency. In that
hearing, representatives of the Fox, NBC, and ABC television networks
made certain representations concerning the right of affiliates to
reject network programs deemed to be objectionable or of lesser local
or national importance than a substitute program. These representations
reflected selected excerpts of the networks' affiliation agreements.
Congress should be aware, however, that these selected excerpts are
undercut by other provisions in the same agreements that strictly limit
the right and practical ability of an affiliate to control the content
of programming aired on its station and by network pressure to air
questionable programming.
The Network Affiliated Stations Alliance (NASA) represents the
affiliates' associations of the ABC, CBS and NBC networks. Three years
ago it brought to the attention of the Federal Communications
Commission the affiliates' deep concerns about the networks' erosion of
local licensees' right to reject network programming, by filing a
Petition for Inquiry into Network Practices and a Petition for
Declaratory Ruling on affiliate independence. The Fox Affiliates
Association subsequently expressed its support for NASA's Petitions.

NETWORK AFFILIATION AGREEMENTS

A. The Fox Affiliation Agreement.
The Fox network affiliation agreement asserts control over its
affiliates' digital as well as analog signals. In her testimony, Gail
Berman, President of Entertainment at Fox Broadcasting Company, stated
that Fox affiliates have an ``unequivocal'' right to reject network
programming that they reasonably believe to be unsatisfactory,
unsuitable or contrary to the public interest. While the Fox agreement
includes a general ``savings clause,'' which states that ``the parties
acknowledge that the Station has the ultimate responsibility to
determine the suitability of the subject matter of program content,''
that provision does not negate Fox's ability under the contract to
terminate the affiliation as a result of three preemptions which Fox
determines to be ``unauthorized.'' (As shown in the example below of
Fox affiliate WRAZ, Fox narrowly defines what constitutes an
``authorized'' preemption.) Also, the provision conveys no right to the
affiliates (it only acknowledges a responsibility) and no corresponding
duty on the part of the network to respect affiliates' right to reject.
The practical effect is to allow risk-free preemptions of only 0.084%
of the 2,392 hours of Fox programming each year. In other words, the
Fox network has substituted its judgment for that of local affiliates
in defining unsuitable programming that an affiliate may reject.
Furthermore, the Fox affiliation agreement interferes with an
affiliate's right to reject by:

preventing a station from deeming a Fox program unsatisfactory or
unsuitable unless it does not meet ``prevailing contemporary
standards of good taste in its community of license,'' whereas
the FCC's right-to-reject rule does not limit such
determinations to assessments of ``good taste'' nor to the
station's community of license; thus, the Fox agreement leaves
out the interests of viewers well within the station's service
area who happen to reside outside of the city limits;
hindering preemptions protected by the right-to-reject rule by
allowing Fox to terminate the affiliation agreement if the
affiliate makes--or merely ``states, in general or specific
terms'' that it intends to make--more than two ``unauthorized''
preemptions in a year; moreover, even without such a statement
by the affiliate, Fox may terminate the affiliation agreement
if, in its ``reasonable'' opinion, such preemptions are likely
to occur;
hindering an affiliate from using independent judgment to reject
programs that are, in the station's opinion, of greater local
or national importance by requiring the affiliate to pledge up
front that it does not foresee any need to substitute
programming of greater local or national importance ``except to
present locally originated, non-entertainment, non-religious,
timely public interest programming, such as election coverage,
live coverage of fast-breaking news events, political debates,
town hall-type meetings and telethons that serve the public
interest and that are approved by Fox''; thus, Fox restricts
both the type of programs that the affiliate may reject and the
type of substitute programming its stations may choose to air
for its local viewers; and
demanding control over whatever portion of the affiliate's digital
capacity (up to 100%) that Fox at any point during the
affiliation agreement decides it would like to use for any
purpose. The potential consequence for not agreeing to air such
content--which could include paid commercial programming,
subscription data services, or time-shifted network
programming--is termination of the affiliation agreement.
Because of the Fox network's strict limitations on affiliates'
right to exercise licensee discretion, an affiliate could not preempt
network programming to air religious programs, educational material,
public affairs documentaries, local civic events or local sports, and
even as to categories of programming for which a Fox affiliate may
preempt, Fox must approve the specific program.
Overall, the Fox agreement creates a ``chilling'' effect whereby
affiliates are strongly discouraged from even discussing the
possibility of rejecting network programming. That is, the Fox network
may find that an affiliate merely expressing concern about a particular
network series (such as Who Wants to Marry a Millionaire or Temptation
Island) has stated, ``in general . . . terms'' an intention to make
more than two ``unauthorized'' preemptions in a year. Even if the
affiliate hasn't made such ``general'' representations concerning
``unauthorized'' preemptions, the affiliate's expressed concerns may
lead Fox to ``reasonably conclude'' that such preemptions will occur.
According to the contract, Fox may then terminate the station's
affiliation agreement.
B. The NBC Affiliation Agreement.
In his testimony, Dr. Alan Wurtzel, the President of Research and
Media Development and Chief Executive for Broadcast Standards and
Practices at NBC, stated that an affiliate may reject or preempt ``any
program--without penalty--if an affiliate reasonably believes that such
programming is unsatisfactory, unsuitable, or otherwise contrary to the
public interest.'' But the NBC affiliation agreement is inconsistent
with the right-to-reject rule and the requirements of licensee control
because it:

provides than an affiliate may reject a program as unsatisfactory,
unsuitable or contrary to the public interest only ``based upon
a substantial difference between the relevant program's style
and content and the style and content of other NBC Programs
previously broadcast by Station'';
denies stations the right to air a substitute program it believes to
be of greater local or national importance unless the program
is of ``live coverage of breaking local or national news
events'';
imposes financial penalties on affiliates that preempt NBC programs
in circumstances that fit squarely under the right-to-reject
rule and permits NBC to terminate the affiliation agreement if
affiliates fail to pay these penalties; and
requires affiliates to pledge up front that they do not ``foresee the
need to substitute programming of any kind for NBC Programming,
except under those circumstances requiring live coverage of
breaking local news events'' and to ``acknowledge and affirm''
that they do not intend over the entire term of the agreement
to exercise licensee discretion in determining whether (i) NBC
programming is unsatisfactory, unsuitable or contrary to the
public interest or (ii) substitute programming, other than live
local breaking news, is of greater local or national
importance.
The NBC affiliation agreement effectively strips affiliates of
their right to reject programming that is indecent or otherwise
unsuitable for the communities they serve. To illustrate, an affiliate
that aired two episodes of Fear Factor could not respond to community
feedback and choose to preempt the remaining season's episodes. Another
example may be found in the 2003 Golden Globe Awards in which the
network broadcast the ``F word.'' Having aired that show, the agreement
would prohibit an NBC affiliate from preempting programs which include
similar language. In both examples, affiliates are constrained by NBC's
narrow definition of what constitutes programming that is
unsatisfactory, unsuitable or contrary to the public interest.
Similarly, the agreement's ban on the substitution of network
programming with a program of greater local or national importance
(except in the narrow case of live breaking news) means that an NBC
affiliate cannot choose to air during primetime a local candidate
debate (unless it can be defended as a breaking news event), a
documentary about a local environmental crisis, a religious special,
coverage of a civic event, or local high school sports that the station
believes to be of greater local or national interest to the affiliate's
local community.
C. The ABC Affiliation Agreement.
In his opening statement, Alex Wallau, President of the ABC
Television Network, quoted a selection of his network's agreement which
he claimed ``guaranteed'' the right of affiliates to reject or refuse
network programs. That excerpt reads, ``nothing herein contained in the
[affiliation agreement] shall be construed to prevent or hinder [an
affiliate] from rejecting or refusing network programs which [it]
reasonably believe[s] to be unsatisfactory, unsuitable, or contrary to
the public interest; or substitute a program, which in [its] good faith
opinion, is of greater local or national importance.'' Yet that excerpt
does not tell the whole story, nor does it confer any substantive right
to the affiliates to object to programming fed to it by the ABC
network. Rather, the plain language of specific provisions of the same
affiliation agreement strictly limit the right to reject by, for
example:

requiring live clearance of ``all the programs supplied by ABC'' and
providing that a single unapproved preemption can trigger a
seven day window during which the affiliate either must resume
full-line clearance of all ABC programming or risk severe
penalties, up to and including termination of the affiliation
agreement;
restricting an affiliate's ability to reject a network program or
episode it feels is unsuitable by requiring 14 days' advance
notice unless the nature of a substitute program makes such
notice impracticable; thus, regardless of objectionable content
in the network program, an affiliate cannot reject it if it
first learns of that content during the 14 days preceding that
program's airdate;
permitting the network to make a second-guess intrusive inspection
into the reasons that a local station exercises its right to
reject;
asserting undue control over the affiliate's local programming by
requiring the affiliate to maintain ``the same schedule of
local news programs in its broadcast schedule'' throughout the
term of the affiliation agreement, so that an affiliate wishing
to supplement or adjust its news schedule to serve community
interests would be in breach of the agreement if it did so (as
illustrated by the recent experience of the ABC affiliate in
Eugene, Oregon, described below); and
authorizing the ABC network to institute a claim for breach of
contract (with potential loss of the network affiliation and
money damages) against an affiliate for rejecting a network
program without ABC's ``authorization'' when the practical
reality is that few, if any, local stations can afford
litigation with their networks and risk loss of their network
affiliation and liability for money damages each time a dispute
develops with the network over the suitability of network
programming.
The practical effect of these limiting provisions is to inhibit the
discretion of an affiliate to exercise its licensee responsibility for
content aired to its local community. To illustrate, if a Providence
area affiliate wished to air a primetime news special about the
nightclub fire in Rhode Island on the anniversary of that tragic event,
it could not do so because the program would occur outside of the
affiliate's regular schedule of local news programs. Also, because the
public does not typically learn of a program's subject matter until the
week before it is aired, and because the affiliate may not have two
weeks advance notice that an ABC program will be objectionable, the 14-
day rule effectively prohibits affiliates from considering community
input in deciding whether to preempt a network program.
Also, the penalties ABC may impose strongly discourage an affiliate
from asserting its right to reject. For example, if the Providence
station described above were nevertheless to air the primetime
documentary on the anniversary of the nightclub fire, it would trigger
the seven day window during which the affiliate must resume full
clearance of all ABC programming or else risk losing all compensation
from the network and/or termination of the affiliation agreement upon
30--days notice. If during that seven-day period ABC wished to air
objectionable programming, the Providence affiliate would be in the
dire situation of having to air the programming or accept these very
severe penalties.
specific examples of network pressure on affiliates
NASA also wishes to supplement the record in response to a question
of Representative Wynn concerning examples in which negative
consequences have occurred when an affiliate rejected or sought to
reject a network program. Following are a few examples that illustrate
the degree to which affiliates' right to reject programming has been
eroded by the networks:

WFAA-TV, the Dallas, Texas, ABC affiliate, told the network that it
wished to preempt Monday Night Football's half-time show on
November 12, 2001 in order to cover a plane crash by American
Airlines, which is based in Dallas. The network refused three
different options presented by the station. In the end, WFAA-TV
decided to use the limited time allowed for local advertising
spots to present a two-minute news package at the end of the
half-time show. Of course, this brief time slot did not allow
for full coverage of the American Airlines plane crash.
During the first 2000 Presidential debate between then-Governor Bush
and then-Vice President Gore, Fox insisted that its affiliates
air its sci-fi series Dark Angel, rather than the debate.
When WRAZ, the Raleigh, North Carolina, Fox affiliate refused to air
Who Wants to Marry A Multimillionaire?, Fox told the station
that the preemption would count against its preemption
``basket'' (a contractual limit which, under the standard Fox
agreement, is 2 per year--.084% of the Fox schedule--on the
number of preemptions allowed before an affiliate faces
penalties, including possible cancellation of affiliation). The
station nonetheless decided to not carry the show because ``we
felt it was demeaning to women and made a mockery of the
institution of marriage.'' Although this preemption was based
on the station's opinion that the program was unsuitable for
airing in its community, Fox insisted that the preemption did
not fall within the right to reject but rather was subject to
the station's limited ``basket'' of ``unauthorized''
preemptions.
When NBC network sports coverage preempted both regularly scheduled
core children's programming as well as additional time on
Sunday (the typical second home for many station's core
educational and informational programming), the network was
unwilling to give affiliates permission to preempt three hours
of other network programming to meet their responsibility to
the public to air three hours of core children's programming
each week.
The ABC network blocked an affiliate in Eugene, Oregon from adding a
new half-hour local newscast at 10:00 pm, despite the station's
reasonable belief (based on extensive independent research)
that the newscast would best serve its local community's
interests. This plan would have required moving a three-hour
block of network programming to start at 7:00 pm instead of
8:00 pm. The ABC network prohibited its affiliate from
implementing the new newscast, claiming that the one-hour shift
of network programming would violate its affiliation agreement.
Indeed, ABC threatened cancellation of affiliation to force the
affiliate to abandon its local news initiative.
Accordingly, the statements presented by network representatives
during the recent broadcast decency hearing do not reflect restraints
imposed on affiliates, both by the affiliation agreements and
otherwise. (It should be noted that two years ago CBS acceded to NASA's
requests that its standard affiliation agreement be revised to conform
to the FCC's right-to-reject rule.) The law is clear.
``[R]esponsibility for selecting program material lies with the
licensee. That responsibility can neither be delegated by the licensee
to any network or other person or group, or be unduly fettered by
contractual arrangements restricting the licensee in his free exercise
of his independent judgments.'' Cosmopolitan Broadcasting Corp., 59
F.C.C.2d 558, 561 (1976); see also In the Matter of Review of
Commission Rules and Regulatory Policies Concerning Network
Broadcasting, 63 F.C.C.2d 674, 690 (1977). It is time for the networks
to recognize this core principle not only in the language of their
affiliation agreements but also in relationships with their affiliates.
Thank you for your time and consideration in reviewing this information
concerning the status of affiliates' right to reject network
programming.
Sincerely,
Wade H. Hargrove,
Brooks, Pierce, McLendon, Humphrey and Leonard, L.L.P.
Raleigh, N.C. 27601
Counsel to the Network Affiliated Stations Alliance

Jonathan D. Blake & Jennifer A. Johnson,
Covington & Burling
Washington, D.C. 20004-2401
Counsel to the Network Affiliated Stations Alliance
cc: Members of the Committee on Energy and Commerce