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



 ``CAN YOU SAY THAT ON TV?'': AN EXAMINATION OF THE FCC'S ENFORCEMENT 
                  WITH RESPECT TO BROADCAST INDECENCY

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

                                HEARING

                               before the

          SUBCOMMITTEE ON TELECOMMUNICATIONS AND THE INTERNET

                                 of the

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                            JANUARY 28, 2004

                               __________

                           Serial No. 108-67

                               __________

       Printed for the use of the Committee on Energy and Commerce


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house


                               __________

91-578              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003
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                    COMMITTEE ON ENERGY AND COMMERCE

               W.J. ``BILLY'' TAUZIN, Louisiana, Chairman

RALPH M. HALL, Texas                 JOHN D. DINGELL, Michigan
MICHAEL BILIRAKIS, Florida             Ranking Member
JOE BARTON, Texas                    HENRY A. WAXMAN, California
FRED UPTON, Michigan                 EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida               RICK BOUCHER, Virginia
PAUL E. GILLMOR, Ohio                EDOLPHUS TOWNS, New York
JAMES C. GREENWOOD, Pennsylvania     FRANK PALLONE, Jr., New Jersey
CHRISTOPHER COX, California          SHERROD BROWN, Ohio
NATHAN DEAL, Georgia                 BART GORDON, Tennessee
RICHARD BURR, North Carolina         PETER DEUTSCH, Florida
  Vice Chairman                      BOBBY L. RUSH, Illinois
ED WHITFIELD, Kentucky               ANNA G. ESHOO, California
CHARLIE NORWOOD, Georgia             BART STUPAK, Michigan
BARBARA CUBIN, Wyoming               ELIOT L. ENGEL, New York
JOHN SHIMKUS, Illinois               ALBERT R. WYNN, Maryland
HEATHER WILSON, New Mexico           GENE GREEN, Texas
JOHN B. SHADEGG, Arizona             KAREN McCARTHY, Missouri
CHARLES W. ``CHIP'' PICKERING,       TED STRICKLAND, Ohio
Mississippi                          DIANA DeGETTE, Colorado
VITO FOSSELLA, New York              LOIS CAPPS, California
STEVE BUYER, Indiana                 MICHAEL F. DOYLE, Pennsylvania
GEORGE RADANOVICH, California        CHRISTOPHER JOHN, Louisiana
CHARLES F. BASS, New Hampshire       TOM ALLEN, Maine
JOSEPH R. PITTS, Pennsylvania        JIM DAVIS, Florida
MARY BONO, California                JANICE D. SCHAKOWSKY, Illinois
GREG WALDEN, Oregon                  HILDA L. SOLIS, California
LEE TERRY, Nebraska                  CHARLES A. GONZALEZ, Texas
MIKE FERGUSON, New Jersey
MIKE ROGERS, Michigan
DARRELL E. ISSA, California
C.L. ``BUTCH'' OTTER, Idaho
JOHN SULLIVAN, Oklahoma

                   Dan R. Brouillette, Staff Director

                   James D. Barnette, General Counsel

      Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                 ______

          Subcommittee on Telecommunications and the Internet

                     FRED UPTON, Michigan, Chairman

MICHAEL BILIRAKIS, Florida           EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas                      Ranking Member
CLIFF STEARNS, Florida               BOBBY L. RUSH, Illinois
  Vice Chairman                      KAREN McCARTHY, Missouri
PAUL E. GILLMOR, Ohio                MICHAEL F. DOYLE, Pennsylvania
CHRISTOPHER COX, California          JIM DAVIS, Florida
NATHAN DEAL, Georgia                 RICK BOUCHER, Virginia
ED WHITFIELD, Kentucky               EDOLPHUS TOWNS, New York
BARBARA CUBIN, Wyoming               BART GORDON, Tennessee
JOHN SHIMKUS, Illinois               PETER DEUTSCH, Florida
HEATHER WILSON, New Mexico           ANNA G. ESHOO, California
CHARLES W. ``CHIP'' PICKERING,       BART STUPAK, Michigan
Mississippi                          ELIOT L. ENGEL, New York
VITO FOSSELLA, New York              ALBERT R. WYNN, Maryland
CHARLES F. BASS, New Hampshire       GENE GREEN, Texas
MARY BONO, California                JOHN D. DINGELL, Michigan,
GREG WALDEN, Oregon                    (Ex Officio)
LEE TERRY, Nebraska
W.J. ``BILLY'' TAUZIN, Louisiana
  (Ex Officio)

                                  (ii)




                            C O N T E N T S

                               __________
                                                                   Page

Testimony of:
    Bozell, L. Brent, III, President, Parents Television Council.    26
    Corn-Revere, Robert, Partner, Davis Wright Tremaine LLP......    30
    Solomon, David, Chief, Enforcement Bureau, Federal 
      Communications Commission..................................    22
    Wertz, William J., Executive Vice President, Fairfield 
      Broadcasting Company.......................................    49
Material submitted for the record by:
    Berman, Gail, President, Entertainment Group, Fox 
      Broadcasting Company, letter dated February 5, 2004, to 
      Hon. John D. Dingell, enclosing response for the record....   105
    Franks, Martin D., Executive Vice President, CBS Television, 
      letter dated February 9, 2004, to Hon. John D. Dingell, 
      enclosing response for the record..........................    99
    Vaughn, Patrick J., General Counsel, American Family 
      Association, Inc., prepared statement of...................    90
    Wright, Frank, President, National Religious Broadcasters, 
      prepared statement of......................................    85
    Wurtzel, Alan, President, Research and Media Development, 
      National Broadcasting Company, Inc., letter dated February 
      3, 2004, to Hon. John D. Dingell, enclosing response for 
      the record.................................................   102

                                 (iii)

  

 
 ``CAN YOU SAY THAT ON TV?'': AN EXAMINATION OF THE FCC'S ENFORCEMENT 
                  WITH RESPECT TO BROADCAST INDECENCY

                              ----------                              


                      WEDNESDAY, JANUARY 28, 2004

              House of Representatives,    
              Committee on Energy and Commerce,    
                     Subcommittee on Telecommunications    
                                          and the Internet,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:40 a.m., in 
room 2123, Rayburn House Office Building, Hon. Fred Upton 
(chairman) presiding.
    Members present: Representatives Upton, Bilirakis, Barton, 
Gillmor, Deal, Whitfield, Shimkus, Wilson, Pickering, Bass, 
Walden, Terry, Tauzin (ex officio), Markey, Rush, McCarthy, 
Davis, Stupak, Engel, Wynn, Green, and Dingell (ex officio).
    Also present: Representatives Pitts, Issa, Gonzalez, and 
Osborne.
    Staff present: Kelly Zerzan, majority counsel; Will 
Nordwind, majority counsel and policy coordinator; Neil Fried, 
majority counsel; William Carty, legislative clerk; Gregg 
Rothschild, minority counsel; Peter Filon, minority counsel; 
and Ashley Groesbeck, staff assistant.
    Mr. Upton. Good morning, everyone.
    To start, I would like to just say that we have three 
Members that are not on the subcommittee that would like to sit 
in. I am going to ask unanimous consent that they are allowed 
to sit at the dais and be able to ask questions at the end, 
following the members of the subcommittee. They would include 
Mr. Gonzalez, Mr. Pitts and Mr. Osborne.
    Without objection, that will be ordered.
    Good morning again. Today we will be examining the FCC's 
enforcement of broadcast indecency laws. This hearing is about 
protecting children from indecency over the public airwaves or, 
in other words, broadcast TV and radio.
    This has nothing to do with the issue of censorship and the 
case of Lenny Bruce at the Cafe A-Go-Go, as some critics have 
highlighted. That case is simply irrelevant in today's debate. 
Nor does this have anything to do with things outside the scope 
of the public airwaves. In fact, the courts have upheld the 
constitutionality of our broadcast indecency laws, although 
they have limited the FCC's enforcement to only that content 
which is aired between the hours of 6 a.m. to 10 p.m., when 
children are most likely to be listening or viewing.
    As a parent of two young children, I believe that America's 
families should be able to rely on the fact that at times when 
their kids are likely to be tuning in broadcast TV and radio 
programming will be free of indecency, obscenity and profanity; 
and Congress has given the FCC the responsibility to help 
protect American families in that regard.
    I have received hundreds of constituent letters expressing 
astonishment and outrage over how the FCC's enforcement bureau 
could have found Bono's use of the ``F-word'' on TV not 
indecent in the Golden Globes case. I find the use of the ``F-
word'' on TV to be highly objectionable, and I have called on 
the full Commission to reverse that decision, and reportedly 
Chairman Powell and the other commissioners are seeking to do 
just that.
    However, I think that the outpouring of constituent mail 
regarding the Golden Globe case is symptomatic of a larger 
feeling amongst many Americans that some TV broadcasters are 
engaged in a race to the bottom, pushing the decency envelope 
in order to distinguish themselves in the increasingly crowded 
entertainment field. Why is it that there have been so few 
indecency actions against TV broadcasters? Is it a lack of FCC 
enforcement or is it something else?
    My plea to broadcasters is that, regardless of how the law 
is settled in the Golden Globes case or the FCC's enforcement 
action, as stewards of the public airwaves you indeed have a 
responsibility to keep the ``F-word'' and other similar words 
off of our airwaves. Although it may be your right to say or do 
something on TV or radio, it does not make it the right thing 
to do.
    I call on all of the networks and broadcasters to take to 
heart what we are discussing here today and to review their 
codes of conduct and, in the case of live broadcast, review 
their time-delay procedures and redouble their efforts to make 
sure that they work. The American people are paying attention, 
believe me, and they want action.
    But this hearing is also about broadcast radio. Yesterday, 
as I flew back through the ice and snow from Michigan, I sat on 
the airplane and reviewed my briefing material for today's 
hearings. In that material there were notices of apparent 
liability issued by the FCC in but a few of its radio broadcast 
indecency cases.
    Of course, each case had a transcript of the content that 
was at issue. Ladies and gentlemen, public decorum in this 
committee room precludes me from reading those transcripts out 
loud today. But what I will say is that what I read was 
disgusting, vile and has no place on our public airwaves. 
Simply put, it was awful.
    These cases included descriptions of people having sex in 
St. Patrick's Cathedral, lewd scenes of a daughter having oral 
sex with her father, and the case in which a radio host 
interviewed high school girls about their sexual activities 
with crude sound effects to match. Sadly, I can go on and on.
    I am not a lawyer. But I would hope that it would be beyond 
dispute, even to legal scholars, that such content is indecent 
under the law and does not belong on our public airwaves, 
particularly at times when kids are likely to be viewing or 
listening.
    In many of these most egregious cases, the radio and TV 
stations are owned by huge media conglomerates. However, the 
maximum fine that the FCC can impose per violation is $27,500.
    In recent remarks, Chairman Michael Powell called on 
Congress to dramatically increase penalties available to 
prosecute clear cases of violation. To quote Chairman Powell: 
Some of these fines are peanuts. They are peanuts because they 
haven't been touched in decades. They are just the cost of 
doing business. And that has to change.
    Well, I am here to tell you, Chairman Powell, you asked for 
it, you got it. My friend, Ed Markey, and I, along with 
Chairman Tauzin and John Dingell and many members of the 
subcommittee, answered Chairman Powell's call by introducing 
H.R. 3717, the Broadcast Decency Enforcement Act. This 
legislation would increase by ten-fold, to $275,000, the 
maximum amount which the FCC can impose per violation.
    I believe that broadcasters have a special place in our 
society, given that they are the stewards of the public 
airwaves. With that stewardship comes certain responsibilities, 
including an adherence to our Nation's indecency laws; and for 
those broadcasters who are less than responsible, the FCC needs 
to have sharper teeth to enforce the law.
    We intend to put that legislation on a fast track. I am 
pleased to announce that the Bush administration has publicly 
backed our effort to increase the fines and has highlighted the 
need for the FCC to consider the highest fines when indecent 
content is contained in the programming when children are 
likely to be in that audience, and I will enter that 
administration letter of support into the record.
    As I mentioned earlier, it is the FCC's responsibility to 
help protect American families from indecency over the public 
airwaves. While increasing the fines which the FCC can impose 
will go a long way toward cleaning up our airwaves, what I hope 
we hear today from the FCC is that it plans to move more 
aggressively and use its current enforcement authority on 
behalf of American families.
    For instance, will the FCC assess fines on each utterance 
in a given case? Moreover, I would note that certain 
broadcasters and even certain broadcasters' shows are egregious 
and repeat offenders.
    At some point, we have to ask the FCC: How much is enough? 
When will it revoke a license? Should we have a policy of three 
strikes and you are off, off the public airwaves?
    I yield now to my friend and cosponsor of H.R. 3717, Mr. 
Markey, from Massachusetts.
    Mr. Markey. Thank you, Mr. Chairman, very much; and thank 
you so much for having this very, very important hearing.
    The public airwaves are licensed to a relatively precious 
few who have the honor, the opportunity and the obligation to 
use them as trustees of the public interests. There are those 
licensees, however, who are not treating those licenses as a 
public trust but as mere corporate commodities; and they air 
content replete with raunchy language, graphic violence and 
indecent fare.
    The Federal Communications Commission is charged with 
ensuring that licensees serve the public interest and that 
stations do not air obscene, indecent or profane content in 
violation of the law and the Commission rules. The FCC has many 
tools to enforce these important policy requirements, including 
the ability to revoke a station license. Yet it is increasingly 
clear that the paltry fines the FCC assesses have become 
nothing more than a joke. They have become simply a cost of 
doing business, for far too many stations regard the prospect 
of a fine as merely a potential slap on the wrist, and the few 
fines levied by the Commission have lost their deterrent 
effect.
    If the CEO of a broadcast company came into your living 
room and personally said these words, you would be appalled. If 
the Members up here read the transcripts of some of these shows 
in the public domain today, as people are watching this 
hearing, they would be appalled. However, if the station airs 
it to the entire community any time of the day, with kids in 
the audience at best, at best right now, all they get is a slap 
on the wrist.
    This is especially true of the multi-billion dollar media 
conglomerates who control a multitude of stations. What 
possible deterrent can $27,000 as a fine have on a company 
which reaps $27 billion in annual revenues? Moreover, the 
Federal Communications Commission has never invoked its right 
not to renew a license or to revoke a license for violations of 
indecency rules, even when such violations are repeated and 
apparently willful.
    We need to have a public discussion about the failure to 
use this enforcement and deterrent tool, even in the most 
egregious cases, and what the FCC plans to do about this issue.
    Clearly, many broadcasters need to clean up their act. 
Education is also needed to ensure that parents know and 
understand the TV ratings system and the tools they can use in 
conjunction with that system such as the V chip for protecting 
their children, which is why I authored that legislation 7 
years ago.
    Today's hearing will allow us to explore the FCC's 
lackluster enforcement record with respect to these violations. 
It will also permit us a glimpse at the conduct of broadcast 
licensees who air content that leads to a coarsening of our 
culture and directly undermines the efforts of parents in 
raising their kids. Parents are increasingly frustrated and 
have every right to be angry at both certain licensees and the 
Federal Communications Commission itself.
    Finally, this hearing will also permit us to gain testimony 
on the legislation that Chairman Upton and I have introduced, 
along with many of our committee colleagues, to raise the fines 
available to the Federal Communications Commission tenfold over 
what they have historically been, ultimately to put some real 
bite in the punishment that these stations feel if they act 
contrary to the interests of the families of our country.
    I want to thank the witnesses for their time in preparing 
for today's hearing. I want to thank you again, Mr. Chairman, 
for calling this very important session.
    Mr. Upton. Thank you.
    I would like to recognize for an opening statement the 
chairman of the full committee, Mr. Tauzin.
    Chairman Tauzin. Thank you, Chairman Upton; and let me 
thank you for this very important hearing.
    Indeed, in 1961, FCC Chairman Newt Minnow called television 
a vast wasteland. Do you remember? As we look back from 2004 
through the prism of history, I suppose we have to marvel at 
how innocent television was in that day and how much we have 
seen television change, particularly when it comes to broadcast 
decency over these 40 years.
    According to the Kaiser Family Foundation, more than four 
out of five parents are concerned today that their children are 
being exposed to too much sex and violence on television. We 
know that the television industry and others got together on a 
ratings system to help parents. There is a V chip in new 
television sets that parents can use today.
    But the question is, what is the FCC's role? What is 
Congress's responsibility here when it comes to free use of the 
public spectrum by broadcasters and what is the FCC doing when 
it splits hairs as it did in the recent decision on singer 
Bono's use of an expletive during last year's Golden Globe 
awards?
    All of us I am sure have heard, as I have, from parents in 
our districts concerned and confused about how such language 
can be used without any penalties during a show that is viewed 
by families across America, during a time when families get 
together and watch television. And for the FCC to split a hair 
as to whether the word is used as an adjective or a verb is 
rather ridiculous. I can tell you folks in my district, I am 
sure in yours, can't understand that, and they are confused.
    Chairman Powell in a recent C-SPAN-covered event complained 
that the current fine schedule for finings that the FCC does 
occasionally make of violations of these rules are merely 
costs-of-doing-business-level fines. So what Mr. Upton and Mr. 
Markey have proposed to us and many of you have already signed 
on as cosponsors, I included, is that we end this business of 
having a fine schedule that is just a cost of doing business 
and have a real fine schedule, tenfold increases in this bill.
    The next question then is, is the FCC going to enforce it 
vigorously? Is it going to be a strong message here that 
families expect the FCC to enforce this concern in a way that 
families feel comfortable sharing family hours with their 
children and watching television? And what are the networks 
going to do about it in terms of complying with, hopefully, a 
more vigorous enforcement by the FCC?
    I want to thank Fox. I understand Fox has now announced 
that, in regard to future live award shows, that they are going 
to put in a 5-second delay. That is a good step. I have been on 
many radio shows where some delay is built in so that a caller, 
live caller who might use some very inappropriate language in 
calling into a radio show, can be deleted before it goes over 
the air. Networks like Fox obviously can take that route, and I 
am pleased at least one of them is announcing a plan to do 
that.
    So this is a good hearing. We ought to get a good 
discussion, a good public airing of what are the limits that we 
as an American people would like to see enforced and what are 
the enforcement levels that are appropriate here. What is the 
responsibility of the FCC? Are they going to continue splitting 
hairs when they see a word used like singer Bono used in a 
Golden Globe award, or are they going to literally say, no, 
that is off limits, and we are going to have some way of 
protecting against that becoming the rule on television in 
these family hours?
    This is a good discussion. We ought to have it.
    On the back side of it, we all have to be concerned about 
the first amendment and not go too far, obviously, that 
whatever we have to do has to respect the fact that our 
Founding Fathers very carefully told us in the Constitution as 
a government to be careful about the way we regulate or hem in 
or define the right of people to speak in our society.
    There are some close questions here. But we ought to have a 
good discussion of it. I think the Upton-Markey approach of 
raising the fines, calling attention to it, calling on the FCC 
to be more aggressive in enforcement and calling upon the 
networks to hear that message and perhaps execute plans like 
Fox has announced to better avoid the conflict and avoid the 
contest between first amendment issues that might be posed 
here, instead of forcing us all into a conflict that requires 
us to define--in constitutionally questionable ways--what are 
those limits.
    This is going to be a good hearing. I thank the chairman 
for it. I want to thank him and Mr. Markey for the legislation 
that they have filed and congratulate you for making sure that 
the American public will engage us in this discussion. Thank 
you.
    Mr. Upton. Recognize the gentleman from the great State of 
Michigan, Mr. Dingell.
    Mr. Dingell. Mr. Chairman, I thank you; and I commend you 
for holding this hearing. This has the potential to be a most 
useful and an interesting exercise; and, as such, I believe it 
should be pursued with vigor. I very much appreciate your 
interest and leadership in this matter.
    Looking at the committee table and the roster of witnesses 
before us, I note there are several significant omissions in 
the attendees today to give us testimony on what is going on. I 
would note that the Chairman of the Federal Communications 
Commission and members of the Commission are not present. I 
would note that representatives of the networks and major 
broadcasting entities are not here with us today. I would like 
to hear what they have to say, both about the substance of the 
behavior that we inquire into and also about the public policy 
and also about how the different proposals that are before this 
committee would impact upon them.
    I would note the very interesting phenomenon that a major 
network with income of tens of billions of dollars a year will 
be subject to penalties of $20 or maybe $200,000 in penalties, 
hardly more than a gnat bite in terms of its impact upon the 
policymaking of those companies and certainly not enough to 
stimulate any corrective behavior to address the concerns of 
the committee and the public with regard to proper use of the 
networks.
    I would like to hear some discussion about whether or not 
licenses are being properly renewed to persons who have active 
disregard of the need for proper behavior and proper use of 
language and the licenses that they are given to use a public 
resource. But I don't see anybody at the committee table who 
can talk to us about this.
    The penalties in the bill that we have sponsored, you under 
your leadership, Mr. Chairman, are good. They will be helpful. 
But they will again, I think, be regarded as little more than 
the cost of doing business. So I think that, while this is a 
useful hearing, it is both imperfect and incomplete.
    We all know why we are here today. During the last year, 2 
of the 4 major networks, NBC and Fox, during live programming 
broadcast a word beginning with the letter F into millions of 
American homes. The Federal Communications Commission 
determined that NBC's broadcast did not violate the agency's 
rule against broadcasting indecent speech, and the agency has 
not yet ruled on the Fox broadcast.
    The fact that the FCC did not penalize the NBC network is 
curious at best, and I will discuss that in a minute. But the 
more pressing issue is how the networks permitted such speech 
to be aired into American homes. They have adequate mechanisms 
to address how matters escape into the airwaves and who have 
appropriate mechanisms for delay and other controls. 
Apparently, none was used here, and I see no signs of 
repentance on the part of the network that this was done. Nor 
do I see any signs of proper custody on the part of the Federal 
Communications Commission in looking to see that the outrage 
that is expressed by thousands of Americans is properly 
addressed.
    The primary responsibility to ensure that network 
television does not contain profanity rests not with the FCC, 
although they are the ultimate arbiter, but with the networks 
themselves. The four major networks not only create the 
programming that a large segment of American viewers, including 
our children, watch every day, but they are the largest owners 
of broadcast television stations that profit handsomely from 
this, and it is good that they should. But this gives them a 
special responsibility to the citizens who have entrusted them 
with the public airwaves. They have a public trust which they 
are permitted to use for private profit. That is the system 
which has gone on for a long time, and it is perhaps a good 
one, but it doesn't seem to be working on matters of 
appropriate and important public concern.
    It is certainly upsetting to me when this trust is as 
blatantly and repeatedly violated as it has been. I am sorry 
this panel, I note, does not include witnesses from the NBC and 
Fox, because I think the committee would have liked to have 
asked them about these broadcasts to again see how this 
comported with the policy of the broadcasters and to see how 
and what it is they propose to do to address their 
responsibilities to see that these networks use the assets 
which are given them by the taxpayers in a proper way.
    I would like to have inquired what procedures or mechanisms 
were in place to prevent the airing of objectionable language. 
I would like to have asked what the network has changed in the 
way of its practices to ensure that families watching live 
network TV need not worry as to what language will suddenly be 
thrust into the living rooms for the children of this Nation.
    I think the subcommittee would benefit to the answers to 
these questions. As yet, no network has chosen to appear.
    I will note I have written the presidents of the four major 
networks to ask these and other questions. I have asked them to 
respond in a timely manner. I have asked also, Mr. Chairman, to 
you at this moment, that the letters be entered into the 
hearing record and that the record remain open to include the 
answers to these questions that are posed by these letters.
    As the head of the FCC Enforcement Bureau, I note, Mr. 
Solomon, that your decisions are constrained, as they should 
be, by legal boundaries, amongst them the Constitution and case 
law. I am not here to debate your decision in the FCC case as 
being either right or wrong. You have a solid reputation. I am 
sure that you can defend your legal reasoning.
    The problem, however, is that the decision defies common 
sense. When an agency acts in this way, it loses credibility. I 
do not think that the American people will accept that we are 
powerless either to ensure that the FCC acts or has authority 
to act in a proper way or that those who hold licenses to use 
public resource are permitted to snap their fingers under the 
nose of those who make the networks able to use the airwaves, 
which are in fact a public trust for private benefit.
    Like many members of the committee, I am concerned also 
about the amount of indecent content of broadcast over radio 
airwaves. Recent penalties leveled against radio broadcasters 
have simply been passed off as the cost of doing business and 
have proven inadequate to deter violators. I am, however, 
encouraged by yesterday's FCC decision to impose significantly 
increased penalties on indecent radio broadcasting.
    I would like to know whether or not the FCC needs 
additional authority, however, to indeed increase significantly 
the levels of the penalties or whether their policies will 
include the lifting of licenses of licensees who use the 
airwaves in this fashion without regard to anything other than 
a modest penalty.
    Whether the FCC's decision was motivated by recent public 
outcry or whether it was in anticipation of today's hearing 
does not matter, although I do find myself curious about this.
    Fear is a useful motivator, and I am pleased with the 
decision, even though it appears to be less virtue than concern 
for the possibility of an appearance today. I look forward, by 
the way, Mr. Chairman, to having them before us so that we can 
check out this reasoning.
    I hope that it signals a heightened seriousness on the part 
of the agency. I will be watching closely to see that the FCC 
does not backtrack on its new-found virtue on this issue.
    I look forward to your testimony, gentlemen of the witness 
panel, and particularly I would like to learn more about what 
the Congress might do, consistent with the first amendment, to 
curtail the increasing amount of filth that permeates the 
public airwaves.
    I thank you, Mr. Chairman.
    Mr. Upton. Thank you, Mr. Dingell.
    The gentleman's letters to the broadcasters will be 
included as part of the record.
    I recognize Mr. Bilirakis for an opening statement.
    I would remind members that if they waive their opening 
statements they will get an extra 3 minutes on questions.
    Mr. Bilirakis. Well, thank you, Mr. Chairman.
    There is no question, Mr. Chairman, that indecency is on 
the rise in network programming; and I commend you and Mr. 
Markey for the legislation. Certainly it is timely.
    I have cosponsored that legislation. But really I ask the 
question myself, to myself, and that is: Is it enough?
    We also know that local broadcast licensees are placed in 
the position of having potential legal liability for airing 
network programming that is obscene or indecent; and so, you 
know, I think we should ask ourselves the questions.
    Mr. Dingell has set out a number of questions that we 
should be asking ourselves: Can we restore the authority? Isn't 
that really maybe the foundational thing that we should be 
thinking about here, restoring the authority of the broadcast 
licensee to keep indecent material off of the airwaves?
    If we are going to let the FCC fine a local licensee for 
airing indecent content, shouldn't we make sure that he has the 
ability to refrain from airing it?
    Now I want to go to the Communications Act of 1934 as 
amended, which was intended to control the content that is 
disseminated to our viewers. That right which Congress 
delegated to local broadcasters in order to ensure their 
ability to program in a manner reflective of the tastes and 
mores of diverse local, underlined, local communities has 
eroded.
    We don't have the networks here today to answer questions 
but I understand that there will be additional hearings. But 
the right-to-reject rule has eroded over time as networks, as I 
understand it, have deployed their vast bargaining power with 
their affiliates to require them to relinquish by contract--to 
relinquish by contract the very rights that Congress 
established by that 1934 statute and any amendments thereto.
    So, you know, our network oligopolies today routinely are 
holding these rights hostage through the use of contractual 
provisions that explicitly threaten termination of the 
affiliation as a consequence of unauthorized preemption. I 
mean, we should have broadcasters here who are faced with that. 
We should have networks here who are faced with that. I think 
that is really foundational.
    Because no matter what we maybe do here regarding 
particular language or particular pieces of particular words, 
if you will, there is always going to be something coming up, 
and we feel very strongly that we should go back to that 
concept originated in the 1930's to basically give the 
broadcasters, the local broadcasters the right to determine 
what should be the content insofar as their local communities 
are concerned.
    What may fly in one particular area of the country is 
certainly not something that is going to fly equally in another 
part of the country. And should we basically feel that 
executives, network executives in New York and in Hollywood, et 
cetera, et cetera, have the right to determine what should be 
broadcast in Clearwater, Florida, my community, or your 
community in Michigan, or whatever the case may be? I honestly 
feel that that is foundational, and I would feel that we are 
not addressing this adequately if we don't also address that 
particular foundational--in my opinion--problem.
    Thank you very much.
    Mr. Upton. Thank you, Mr. Bilirakis.
    Recognize the gentleman from the great State of Michigan, 
Mr. Stupak.
    Mr. Stupak. Thank you, Mr. Chairman; and thanks for holding 
this hearing. I want to thank the witnesses for being here 
today.
    This issue has struck a cord in my district since last 
year's Golden Globe awards. I have received more than 600 
letters and e-mails from constituents demanding that something 
be done to control the graphic language used on television and 
radio programming. And I agree. How we do that and protect 
first amendment rights is the tricky part. Do we simply 
increase the fines on broadcasters? Do we try to better define 
what indecency is? Do we actually outright ban certain words 
from being broadcast at certain hours?
    I am not sure, and I don't know if there is a perfect fix 
to this issue. I do know one thing, broadcasters and 
programmers can make this a lot easier on themselves. They have 
the privilege to use public airwaves; and with that privilege 
comes responsibility, including the obligation to air 
appropriate programming, especially when young people are 
likely to be in the audience.
    So, again, this issue needs to be addressed. Television and 
radio has crossed the line too many times to ignore.
    However, I believe there are other first amendment issues 
we also need to look into. Last year, Congress made its will 
known that a recently issued FCC ruling on media ownership went 
too far, and we pushed it back. I was disappointed to see in 
the final omnibus appropriation bill behind closed doors the 
will of Congress was defied as the administration pushed to 
loosen the media ownership rules. More limited ownership means 
less differing of opinions, a limitation on our first amendment 
rights.
    I also believe we need to take a look at selective 
censorship by our television networks. For example, I saw today 
in the New York Times that CBS is refusing to run an ad during 
the Super Bowl by moveon.org. The ad merely talks about the $1 
trillion deficit that America faces, who is going to pay for 
it. It is not mean. It is not indecent. This network refused to 
allow an opinion to be aired.
    This is the same network that refused to air the drama 
documentary on President Reagan. Mr. Chairman, this all ties 
back to media ownership and our first amendment rights. When 
you have got just a few corporate executives controlling the 
majority of mainstream media, then you have got suppression of 
ideas and eventual censorship.
    I ask that this committee hold a hearing on all first 
amendment rights and issues and censorship in this country.
    With that, Mr. Chairman, thank you for the time. I yield 
back the balance of my time.
    Mr. Upton. Thank you.
    The gentleman from Texas, Mr. Barton.
    Mr. Barton. Thank you, Mr. Chairman.
    You can't play high school football as badly as I did in 
the 1960's and not have heard some of the words that we are 
trying to restrict the use of today. I might add that when they 
were used based on my performance, they were appropriately 
used.
    But that is not why we are here. As a society, we have an 
obligation to the broader community to prevent the use of 
language over the public airwaves that is obscene, indecent or 
profane.
    Now if you want to go to a movie that is rated R because of 
the language, you know, there is some discretion there. It is 
protected by the first amendment. If you want to watch a cable 
network that is airing material that is clearly labeled before 
the program is aired that this is adult material, there is 
discretion there.
    But if you inadvertently go out of the room to pop some 
popcorn, your children are watching an award ceremony live, 
there is no discretion there. So this bill that Mr. Upton and 
Mr. Markey have propounded is long overdue, and I am proud to 
be an original cosponsor.
    I am not a prude and I hope I am not hypocritical or 
sanctimonious, but there are times and places where you can 
express oneself very vigorously in a way that we would not want 
to in a public way, but there are also times and places where 
we have to conduct ourselves according to societal norms, and 
that is what this bill is all about.
    I could not support it more strongly. I am very worried 
about our entertainment industry and our entertainment figures. 
They appear, more and more, to want to say and do things simply 
for the shock value. That demeans society. That demeans us. So 
I am very, very glad that Mr. Markey and Mr. Upton are 
sponsoring this bill; and I am very pleased by the comments on 
it, both by Mr. Tauzin, full committee chairman, and Mr. 
Dingell, the full committee ranking member.
    I hope we can move this bill expeditiously, and I hope this 
is the start of regaining normalcy over the public airwaves.
    With that, I would yield back my time.
    Mr. Upton. Thank you.
    Mr. Green.
    Mr. Green. Thank you, Mr. Chairman; and I appreciate you 
calling the hearing today.
    As my colleagues have said, this is an issue that a number 
of us have been hearing about, and I am glad that our chairman 
and our ranking member have increased legislation for 
increasing penalties for indecent broadcast, of which I am an 
original cosponsor. But that does no good without aggressive 
enforcement, and many Americans believe that radio and 
television programming is crossing the line.
    The FCC is trying to respond to public pressure for action 
in response to recent controversial uses of profanity during 
the live award show broadcast, but the testimony of our 
panelists today reveals we do not really know what the answer 
is to the title: Can that be said on TV.
    In addition to vague and arbitrary definition of broadcast 
indecency, we often do not know how far decency regulations can 
go without running into the first amendment. The choice is to 
fight extensive cases in court against powerful companies that 
the government may lose and set a serious precedent, and it is 
likely that FCC seeks to reverse its Golden Globes decision. We 
would see this whole thing back in court, but somebody has to 
set a standard, and if the FCC cannot do it, it is up to 
Congress to do it.
    Broadcasts often take a lot of abuse, but it is driven by 
advertising, and funding strictly follows those ratings. It is 
the dirty words we hear or the lowest level of broadcasting. I 
see in a lot of our networks it looks like a race to the 
bottom, but it is hard to explain that to your shareholders 
because they are willing to push the envelope while you are 
not.
    Today's testimony from Mr. Wertz notes that the National 
Association of Broadcasters' code of ethics was struck down by 
the Department of Justice on antitrust grounds, and I believe 
it is time to look at the private sector for a collaborative 
solution. If broadcasters can make clear standards that they 
can understand and agree to abide by, perhaps we can avoid 
lengthy court challenge to the FCC enforcement actions. It 
would also reduce the pressure on broadcasters from advertisers 
to push that envelope.
    Just 1 day before this hearing, the FCC announced a 
$755,000 fine against a large broadcaster based in my home 
State. I am not going to defend the behavior of those shows 
that they were cited for, and I believe that strong penalties 
were needed for the indecency, and again that is why I support 
this legislation.
    But an interesting proposal was made to return to the days 
of a Code of Ethics. They suggested a private sector task force 
to be convened by the FCC to develop media guidelines that 
everyone can agree with would be in force. Such a private 
sector task force can also include other content providers like 
cable and satellite providers.
    The current system is clearly not working to the 
satisfaction of the parents' groups or broadcasters, and if you 
listen to the opening statements also from Members of Congress 
it would likely be a lot easier to try a private sector 
solution first, rather than spending millions of taxpayers 
dollars on long court battles that the FCC may lose. But, 
again, you do not make those decisions until you go to the 
courthouse, so I do not think we should be afraid to make the 
courts do what the American people want.
    But I am looking forward to hearing the panelists' ideas, 
Mr. Chairman. Again, thank you for this hearing.
    Mr. Upton. Thank you.
    Mr. Whitfield.
    Mr. Whitfield. Mr. Chairman, thank you very much; and I 
also want to thank you for holding this hearing and you and Mr. 
Markey for the legislation that you have introduced.
    This is one of those issues that the American people are 
particularly frustrated about as far as their inability to have 
any impact. Many of them, in the letters I received, complain 
about their impotency in trying to curtail the use of indecent 
language on radio and on television, and so this legislation 
hopefully can help address that. But Mr. Bozell, in his 
testimony which I read earlier, pointed out something that I 
think contributes to this feeling of frustration on behalf of 
the American people, and that is the inaction of the FCC. I am 
hoping that this hearing will demonstrate and help us obtain 
some answers one way or the other from that agency.
    He points out that, despite a $278 million annual budget, 
they do not have one person assigned to this issue. He points 
out that at the December 2002, Billboard Music Awards on Fox, 
the entertainer Cher used the very same word Bono used, only it 
was not an adjective, it was a verb, and years have gone by and 
no action has been taken on that incident.
    He points out, also, that if you file a complaint with the 
FCC that you are required to attach a transcript of the actual 
show in question, which is almost impossible for any person to 
do, to have access to the transcript, and if you look at the 
FCC Web site, according to Mr. Bozell, they instruct you to do 
that.
    In addition, he points out that, in 2003, the FCC indicated 
that it had received in the second quarter of 2003 only 351 
complaints, and yet the Parents Television Council members 
themselves filed 8,000 complaints. Then another allegation that 
he makes in his testimony is that E-mails from people filing 
complaints are being returned undeliverable and was told by 
someone at the FCC that these complaints were being 
deliberately blocked.
    Now I do not know if this is true or not, but those are 
significant allegations, and it is easy to see, if they are 
true, why the American people feel that they are impotent in 
trying to deal with this issue or even get a response from the 
Federal agency responsible. So I am delighted that we are 
having this hearing, look forward to the testimony, and thank 
you, again, and I yield back the balance of my time.
    Mr. Upton. Mr. Davis.
    Mr. Davis. Thank you, Mr. Chairman; and thank you for 
calling what I hope is the first of several hearings on this 
issue.
    Let me start by saying I am acutely aware of my 
responsibility and our responsibility for dealing with the 
first amendment. At this time in our history I think it is 
heavily incumbent upon us that we not take any actions, 
particularly unintended actions, that would encroach upon 
people's ability to criticize the government, particularly the 
President or the Congress.
    Having said that, it is perfectly clear that the courts 
have rightly ruled that obscene material is not protected by 
the first amendment and indecent material can be regulated by 
the first amendment.
    I would like to focus for a couple minutes on the content 
of the Clear Channel broadcasts that are now the subject of the 
FCC proceeding, since they are broadcast from my community.
    I believe Mr. Dingell referred to the content itself. I 
think that is a generous description. I, too, am disappointed 
that representatives of Clear Channel were not here today to 
read into the record the transcript of what was broadcast on 
their stations. I think it is important, Mr. Chairman, that 
they do appear in front of this committee. I would like to 
understand whether they think this material is indecent or 
obscene. I cannot tell from the record. It appears they may be 
contesting that it is indecent. If so, I think they should say 
why.
    I am also concerned that the FCC does not have the adequate 
tools to address a situation like this. They have proposed a 
fine of $27,500 for each of the apparent 26 indecent 
violations. They have also suggested that serious multiple 
violations of this kind could at some point lead to the 
commencement of license revocation proceedings.
    I think that the bill that you and Representative Markey 
have introduced is a first step, but perhaps further action by 
this subcommittee will be necessary if, in fact, this is often 
about the bottom line of this particular company or others and 
the only way to effectively deal with this type of motivation 
behavior is to more aggressively tackle the bottom line.
    I am also very concerned about what the FCC intends to 
undertake from an enforcement standpoint. With whatever tools 
Congress provides to them their enforcement should be more 
timely than it has been. It should be deliberate. It should be 
firm. It should be clear. So I hope that we will have further 
hearings on this, Mr. Chairman, as well as on your bill, and at 
the next hearing we can have the appropriate representatives of 
the FCC and these broadcasters, both radio and television, 
appear to describe what their position is on this content and 
what they intend to do about it in the future.
    Thank you, Mr. Chairman.
    Mr. Upton. Mr. Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman. I will try to be 
brief.
    Many members have said and raised the concerns and issues 
that I think all of us are concerned with.
    I am reminded of the legislation we passed with your help 
and Chairman Markey and the leadership, the dot kids dot U.S. 
legislation, which is an attempt to protect kids, and wherein 
that legislation dot kids dot U.S. there is not any ability to 
have Web radio in that venue, rightly so, concerning the 
concerns we are addressing today.
    The Chicago Tribune editorialized this on January 22 in 
opposition to the tenfold increase by stating: Remember this 
whole fuss is over a single word uttered once in the excitement 
of the moment.
    They are wrong. What has occurred here is this is the 
proverbial straw that broke the camel's back. The public, since 
I have been a Member of Congress and going on my eighth year, 
has seen a decline in the decency standards over the public 
airwaves. So this whole revolt now has occurred by the public 
saying ``enough's enough,'' and you can see it by the members 
here, our opening statements, and the fact that I think this 
legislation as proposed is going to move quite rapidly through 
the committee process.
    You have got both chairmen on board, subcommittee chairmen, 
bipartisan. It is going to get passed and passed by the 
President in response to this whole issue.
    Industries are starting to take notice. I know NBC deleted 
a 10-second delay for this year's Golden Globes telecast, which 
is a start. It is not perfect, but industry has got to step up 
to the plate and start doing a better job of policing this 
activity and the concern will be intent.
    I remember when I was first elected on the local radio 
station and they did a trivia show and I had to guess the right 
word and they said some word for fertilizer. I should have said 
manure. I said something else. But, of course, that went over 
the public airwaves. So, you know, I--really, if you go by the 
letter of the law, I am telling you: Man, get my wallet out and 
pay the damn fine.
    But I think there is a difference here. If you listen to 
the opening statements about intent, intent to degrade, intent 
to abuse, to appeal to the lowest sector of our--the evil part 
of our sinful nature and degrade. So intent is always--and that 
is always tough in legislation, to evaluate what was the real 
intent, but I think in some of these broadcasts we can clearly 
understand what the intent is, and that is clearly to destroy 
the fabric of society.
    Thank you, Mr. Chairman, for the time.
    I look for quick passage.
    Mr. Upton. Mr. Rush.
    Mr. Rush. Thank you, Mr. Chairman, for holding this 
important hearing on indecent and obscene broadcasting or the 
appropriately titled hearing, ``Can you say that on TV?''.
    We all know that it is a violation of Federal law to 
broadcast obscene or indecent programming. Along the same 
lines, the courts have continually held that indecent material 
is protected by the first amendment and cannot be banned 
entirely. Therefore, it may be restricted, but it cannot be 
banned.
    Now, Mr. Chairman, other members of the committee, there, 
indeed, lies the problem. As TV and radio producers jockey for 
ratings, we are increasingly seeing the envelope pushed further 
and further into the zone of what I call over-the-top 
sensationalism. Congress has charged the FCC with enforcing 
indecency standards. Balancing the standard against the first 
amendment is not an easy task.
    The central issue is whether the government should be 
allowed to regularly content our programming, but the issue is 
how do we determine what is acceptable when there are so many 
different types of people with different standards. 
Nevertheless, we must all be mindful of our responsibility, 
which is to protect the children at all costs from obscene and 
indecent materials on the airwaves.
    On that note, I am pleased to see that the FCC is taking 
this responsibility more serious than it has in the past. Its 
decision to reverse the FCC's Enforcement Bureau October 2003, 
ruling regarding Bono's use of the ``F-word'' at the 
aforementioned Golden Globes awards is a step in the right 
direction. However, more work needs to be done, especially on 
how the FCC applies its indecency rule vis-a-vis the public. I 
believe that the requirement that viewers or listeners include 
a tape or a transcript of the program in question with their 
complaints is overly burdensome and totally unfair.
    That said, Mr. Chairman, I am looking forward to this 
hearing and to the testimony of our distinguished panelists, 
including the FCC's views on how it plans to enforce its new 
broadcasting indecency standards.
    Thank you, Mr. Chairman; and I yield back the balance of my 
time.
    Mr. Upton. Thank you.
    Mr. Pickering.
    Mr. Pickering. Mr. Chairman, I thank you for having this 
hearing. I look forward to the testimony.
    I commend the FCC for reversing its earlier decision 
concerning the use of what we all agree is a profane word but 
which all parents know and understand and even our children 
understand would be a profane word and language.
    We are here today dealing with an age-old question. We 
think that this is somewhat new to the human condition, but it 
has actually always been with us. The question is: How do you 
create the standards and maintain the standards in a modern age 
with modern technology and modern communication?
    It is something that a member of parliament in Great 
Britain in the late 1700's tried to address. His name was 
William Wilberforce, and he combined with William Pitt, and at 
the time he had two objectives. One was the abolition of 
slavery, and the other was the reformation of manners in Great 
Britain, and, as you looked to that movement, they were 
successful. They had the success of seeing the eventual 
abolition of slavery in Great Britain. It spread over to the 
colonies and led to enlightenment, and the principles of our 
Founders, freedom and equality. But what they also had was a 
decent society.
    A healthy democracy also requires a decent society, that we 
are honorable, generous, tolerant, good.
    DeToqueville said, America is great because America is 
good.
    Now our country had to struggle with the freedom and 
equality through the Civil War and the civil rights movement, 
but in the last generation the question is, are we still 
decent, are we still good and how do we maintain that healthy 
society? They are all, whether we like to admit it or not, 
interrelated. Do we have to have a culture that is profane, 
vulgar, crass, coarse, and do we want to uphold the examples 
that would hurt our culture, degrade our culture? With the 
public airwaves, we have a chance to hopefully affirm that we 
do want to be a good, decent people, a good, decent Nation, 
that they are all related to the health and well-being of our 
country. So we do need to continue with the FCC. We do need to 
set high standards.
    I think the defines and enforcement will help. I do think 
the resolutions and the coming together--I have received 
probably over 5,000 E-mails on this. Parents and families--I 
happen to be the father of five sons. We get it. We need to 
make sure that our networks get it and our corporate leadership 
get it.
    There is a corporate responsibility not only not to have 
fraud and abuse in a financial setting but also not to corrupt 
or degrade our culture. So I hope that not only can we act as a 
Congress to set our standard but our corporate leaders can 
voluntarily agree to set standards and to abide by them. It 
will take all of us working together to create a free equal 
decent country and culture, and I think that is why we are 
here.
    Thank you, Mr. Chairman.
    Mr. Upton. Mr. Wynn, are you ready or would you like to 
defer?
    Mr. Wynn. Thank you, Mr. Chairman. I will defer.
    Mr. Upton. Mr. Bass.
    Mr. Bass. Thank you, Mr. Chairman.
    These opening statements have been interesting and 
thoughtful. I support the legislation and co-sponsored it and 
commend the chairman for holding the hearing.
    I recall back in the early days of my brother's and my 
business I used to do a lot of the delivery work, and I 
remember 1 day driving to South Boston with a truckload of 
product and backing up and this fellow was helping me unload.He 
used the same word that was under discussion here today about a 
dozen times in every sentence. It had absolutely nothing to do 
with the actual meaning of the word but simply it was the way 
he talked, and I remember finally I could not stop myself from 
laughing because it was almost like stuttering, and so it is an 
interesting problem.
    I think it is a sad commentary on modern society that 
people who are well-known, well-educated, and in many instances 
very famous resort to this kind of language in order to 
describe enthusiasm, and I think it is entirely appropriate 
that the Federal Communications Commission stand as a judge of 
what is--what my friend from Mississippi described as what is 
good and decent in society.
    Frankly, I find it difficult having my two children see 
much of what is on commercial television in the evening, not 
because there are these particular words, because there aren't, 
but the innuendos and interpretations of what is said, 
especially on some of the more inane sitcoms that are up on 
television, really are inappropriate for young people to listen 
to or see, so it is an interesting issue.
    I look forward to hearing the testimony of our witnesses 
here today, and I yield back.
    Mr. Upton. Mr. Terry.
    Mr. Terry. Thank you, Mr. Chairman, and appreciate your 
bill and allowing me to be part of it.
    Over our time home in December, this discussion here brings 
back a little memory of having some time with my children, 
three boys, ages 9, 6 and 3. The 6-year-old called the 3-year 
old stupid, and my wife turned and said, ``watch your mouth,'' 
and the 6-year-old turned around to my wife and said, ``I did 
not say the F word,'' which was then kind of cute.
    But it is just interesting to me, looking at it in a social 
aspect, that my 6-year-old knows that word. Because, frankly, 
we really police what they are allowed to watch and what they 
say, and still in society they are able to pick up on that, and 
the 6-year-old is smart enough to use the phrase, ``F word,'' 
instead of saying the word to my wife, which would have gotten 
his mouth washed out with soap.
    But I want to comment and build on slightly with what John 
Shimkus said, and that is: I do not think the straw was 
necessarily Bono saying the word. As a U-2 fan, I will tell you 
what: I expect Bono to say that. What was disappointing was 
that the Golden Globes awards were not on a delay and were not 
ready for that. Because I am going to tell you what: Rock and 
roll stars and people say that word.
    What is most disappointing, I think, what the basis of 
people's complaints to me in my office was the way the FCC 
approved that word in its use that Bono said. That is when 
people went ballistic. That is when we got the E-mails and the 
letters.
    I will tell you, my observation from going around my 
community is parents in particular and people are sick and 
tired of the way that we, as the American society and 
government, have allowed this free reign of use of words and 
innuendos, particularly on over-the-air radio, which hasn't had 
much discussion here today, and TV. There are a lot of 
intellectual legal issues at stake, constitutional law, first 
amendment rights, but I got to tell you: I am a lawyer. I do 
not see too many first amendment issues of why we should allow 
someone over public airwaves to use that type of language.
    It seems rather simple to me to be able to control that, 
but I think one of the reasons why over-the-air TV is 
broadcasting so edgy is that it has to compete with cable. Then 
we get into the private airwaves versus the public airwaves 
discussion and should there be a difference in the control over 
that.
    Probably in a legal standard, yes. In a community, probably 
not.
    But we have got to work through those type of issues, 
because I will tell you what: The people, at least in my 
district, are hungry for change. So I am anxious to hear our 
speakers here today, our panel, that were bold enough to show 
up and appreciate the efforts of Fred, our subcommittee 
chairman, and this committee, and I yield back.
    Mr. Upton. Mr. Walden.
    Mr. Walden. Thank you, Mr. Chairman; and I appreciate you 
holding this hearing as well. Because, obviously, there is a 
problem out there on the airwaves, and it comes into our living 
rooms or bedrooms or wherever else we have televisions and 
radios.
    I guess, as I was thinking about this coming out, I thought 
about how--it is sort of like being in an earthquake, standing 
in the doorway, holding the door from going sideways and 
yourself and realizing the whole building is collapsing around 
you. You think you have solved the problem, and you really 
haven't. This bill will send a very strong signal to broadcast, 
but certainly that takes care of the first six channels on my 
TV. What happens on the other 400? I think that is where the 
worst abuse is, if you are concerned about indecency and 
obscenity and vulgarity, is that what else there is out there 
outside.
    I think, because of the laws that are in place, and then 
you figure, well, you have got 100, 300, whatever number of 
channels coming down from satellite, if you have that. Most 
people get their TV off of cable one way or another today.None 
of that is regulated to any measurable way and I guess would 
not be under this legislation.
    If we define 7 dirty words or 14 dirty words, I will tell 
you now this culture of ours will create 14 new ones that will 
mean the same thing, and every kid over the age of nine will 
know what that means. Then you throw in the mix what is coming 
in over the Internet in terms of the music that is coming down 
legally and in most instances illegally, the video clips that 
any kid with broadband now can download.
    It is a sad commentary I think on our culture that we have 
to go to those extremes with this vulgarity to entertain, and 
it does not need to be so, and so I commend you for this 
hearing.
    I would like to see us--and I will, again, say I am in 
broadcast by trade and background and continue. I remember the 
days of the NAB Code of Conduct, and it seems to me maybe 
somebody on the panel can address it, that that got thrown out 
from some restriction of trade issue or something.
    The industry--and I do not mean just broadcasters--but the 
communication industry out there should develop a standard so 
that, you know, one does not have the edge by being more vulgar 
you can attract a certain audience. That is what is happening 
today. I mean, look at some of the top-rated shows out there, 
are cable shows, and they are the ones using the foulest 
language. I am not here to pick on them necessarily, but it is 
the way of the world, and this bill is not going to solve it 
necessarily.
    What is going to solve it is when the country gets together 
and those providing this entertainment, quote, unquote, get 
together and live by a standard of conduct that is decent, that 
avoid unnecessary indecency and all those things.
    So I appreciate the hearing. Hopefully, we can make 
progress.
    Mr. Upton. Thank you.
    Mr. Pits.
    Mr. Pitts. Thank you, Mr. Chairman, very much, for holding 
this important hearing and for allowing me to participate.
    As you know, I am not a member of this subcommittee. 
However, I am gravely concerned about the language that has 
been permitted on network television and radio; and I agree 
with you that it is time that this committee take a close look 
at the FCC indecency standards.
    I, too, was outraged when I learned that the FCC 
Enforcement Bureau decided that it was permissible for the ``F-
word'' to be used on the Golden Globes awards on January 19, 
2003. This decision I think sent a poor message to the 
entertainment industry about the FCC's willingness to enforce 
standards for broadcast decency.
    News reports indicate that FCC chairman Michael Powell is 
circulating a draft order among the commissioners of the FCC to 
reverse the Enforcement Bureau's decision. If approved by the 
full FCC, this would be a significant step in the right 
direction. If this happens, the FCC will have done the right 
thing; and I will be the first to say that we should give 
credit where credit is due.
    However, Mr. Chairman, I do not think that we should be 
satisfied with simply a reversal in the decision.
    The FCC has been entrusted with enforcing our Federal 
decency laws and should be expected to do so. There are plenty 
of laws on the books regarding this matter, and the FCC just 
needs to enforce them. That is why I am pleased to be a 
cosponsor of your bill, Mr. Chairman, H.R. 3717, the Broadcast 
Agency Enforcement Act, which increases the amount of fines 
that can be levied by the FCC so that networks are not tempted 
to air indecent language and then pay a small fine as a cost of 
doing business.
    I am also pleased to be a cosponsor of Mr. Pickering's 
bill, H.Res. 500, which calls upon the FCC to vigorously 
enforce the Federal decency laws, using all the Federal 
regulatory and statutory tools at its disposal; and such 
include levying fines for each utterance of obscene, indecent 
or profane material and instituting license revocation 
proceedings for multiple violations.
    Mr. Chairman, families are tired of having to cover their 
children's eyes and ears every time they turn on television. 
They are frustrated that the media industry has seemingly been 
able to broadcast any type of behavior or speech that they feel 
will bring in advertising dollars.
    Meanwhile, they feel that the Federal Government has sided 
with media elites and turned a blind eye to the concerns of 
ordinary moms and dads. Many parents' standards of common 
decency are repeatedly offended and their parenting is 
undermined by the onslaught of material on television and 
radio.
    I think we must protect our children from such abuse of 
public airwaves. Broadcast airwaves belong to the American 
people, not to the networks. The privilege of conducting 
business over the airwaves should always be conditional on 
their willingness to adhere to certain standards of common 
decency.
    So thank you, again, Mr. Chairman, for holding this 
important hearing; and I yield back the balance of my time.
    Mr. Upton. Mr. Gonzalez.
    Mr. Gonzalez. Thank you very much, Mr. Chairman, and to 
Ranking Member Markey for allowing me to be part of today's 
hearing.
    I am the newest member of the committee but have not been 
assigned anything in the subcommittee level until this 
afternoon. I will attempt to be really brief and that is I 
think the proposed legislation is the right direction we should 
be taking.
    The biggest concern that I have had since I arrived in 
Congress is that we allow things to reach a crisis stage and 
then we overreact legislatively and that can be a real danger, 
especially in this particular arena, when it could encroach on 
constitutional liberties and rights that have been part of the 
very foundation of our country.
    The libertarian's dream of self-restraint and self-
regulation is but a dream but one that we should aspire to. It 
is achievable only when you have proper governmental oversight 
by a regulatory agency that is willing to assume that type of 
responsibility with the appropriate tools.
    The goal should be one standard. The goal should be that 
that standard is uniformly applied and that it is uniformly and 
fairly enforced by the regulatory agency.
    I do believe that we must work in partnership with the 
industry, and there is a suggestion by Clear Channel that a 
local values task force--I am not so sure that is the best 
thing to call it--be formed.
    In addressing another member's observation, this would 
include television, radio, cable, and satellite networks to 
make it a level playing field for everyone out there that 
brings in the signal into our homes that may have this kind of 
content.
    Again, I wish to thank the chairman and the ranking member 
for this opportunity.
    Mr. Upton. Thank you.
    All members have now completed their opening statements.
    [Additional statements submitted for the record follow:]

    Prepared Statement of Hon. Paul E. Gillmor, a Representative in 
                    Congress from the State of Ohio

    I thank the Chairman for calling this timely hearing concerning the 
FCC's enforcement role with regard to broadcast indecency.
    After two separate incidents over the past year, both involving 4-
letter expletives during television network awards shows, I am glad to 
see that a firestorm of pubic criticism is currently serving as the 
primary impetus for bringing this important issue to the table. My 
district particularly mirrors my comments today, to the tune of 
numerous letters, telephone calls, and 500 constituent emails over the 
last two months.
    I would also like to commend my colleagues' quick legislative 
action. Of note, I am an original cosponsor of a measure introduced by 
Chairman Upton and Ranking Member Markey that would increase the 
penalties ten-fold that the FCC may levy for obscene, indecent, or 
profane broadcasts, in addition to recently cosponsoring a resolution 
supporting vigorous enforcement of our nation's federal obscenity laws.
    Furthermore, I must recognize the FCC for their willingness to 
brief our panel's committee staff regarding the issue of indecency last 
month in addition to Chairman Powell's attention and interest in 
overturning a recent FCC ruling and his support for a sharp increase in 
penalties for violators.
    As radio and television programmers continue to push the envelope, 
I look forward to hearing from the well-balanced panel of witnesses 
regarding the clarification of pertinent rules and definitions as well 
as potential remedies to the current situation and their impact on the 
First Amendment. Again, I thank the Chairman and yield back the 
remainder of my time.

                                 ______
                                 
Prepared Statement of Hon. Barbara Cubin, a Representative in Congress 
                       from the State of Wyoming

    Thank you, Mr. Chairman.
    I would like to thank you for holding this hearing to examine the 
appropriateness of what is being broadcast over the public airwaves and 
whether our enforcement tools are adequate to curb and rollback the 
increasing instances of foul language on television and radio.
    The event which, for all intents and purposes, has led to this 
hearing was a broadcast of the Golden Globes about this time last year 
where Bono B a rock singer, not to be confused with my esteemed 
colleague from California, Congresswoman Bono B uttered the following 
on live television: ``This is F***ing brilliant!@ After review of this 
clearly inappropriate exclamation, the FCC initially declared that it 
did not constitute Aindecent'' language. While I have heard the 
Commissioners are reconsidering this initial ruling, it has still 
called into question just what should or shouldn't be considered 
``indecent.''
    I understand the difficulties that have vexed the Commission in 
dealing with this, and I understand how valuable the First Amendment 
protections of our Constitution are B reconciling free speech matters 
is a very challenging prospect. Nevertheless, just as one cannot shout 
fire in a crowded theater, I can't imagine any instance when public 
broadcast of the F-word can be deemed appropriate.
    Whether it is used in the context of an adjective, noun, adverb, 
verb B or even pronoun, its broadcast ought not be allowed. I am not 
certain how we achieve this, but I do know that if anyone in my house 
walked around expressing how ``F***ing brilliant!'' something was, 
they'd find themselves on my doormat in short order.
    We have the opportunity in today's hearing to map out steps that 
can be taken by Congress, the FCC and broadcasters that will reverse 
the trend of ``one-upmanship'' that is leading the quality of our 
broadcast programming down the toilet. The Bono incident has focused a 
bright light on what has been a gradual slippage in the appropriateness 
of the content on our airwaves. If we don't address this in short 
order, a lot of folks may find themselves on the nation's collective 
doormats.
    Thank you Mr. Chairman, I yield back the balance of my time.

    Mr. Upton. I appreciate all four witnesses being able to be 
here, particularly my constituent, Bill Wertz, who somehow 
managed, like I did, to get back from the mitten in ample time 
for today's hearing.
    I also deeply appreciate all four of you being able to get 
your testimony in advance before the subcommittee. We were all 
able to review it last night.
    Your testimony is made part of the record in its entirety, 
and at this point we would like you to summarize your testimony 
in a period not to exceed 5 minutes.
    We are very happy to have Mr. David Solomon, Chief of the 
Enforcement Bureau of the Federal Communications Commission; 
Mr. Brent Bozell, President of Parents TV Council; Mr. Robert 
Corn-Revere, partner of Davis Wright Tremaine; and Mr. Bill 
Wertz, Executive Vice President of Fairfield Broadcasting 
Company in Kalamazoo.
    I would note that the House is going into recess, subject 
to the call of the Chair, and when the last buzzer or two 
sounds we will begin with your 5 minutes. That should be it.
    Mr. Solomon, welcome back to the subcommittee.

STATEMENTS OF DAVID SOLOMON, CHIEF, ENFORCEMENT BUREAU, FEDERAL 
  COMMUNICATIONS COMMISSION; L. BRENT BOZELL, III, PRESIDENT, 
PARENTS TELEVISION COUNCIL; ROBERT CORN-REVERE, PARTNER, DAVIS 
   WRIGHT TREMAINE LLP; AND WILLIAM J. WERTZ, EXECUTIVE VICE 
           PRESIDENT, FAIRFIELD BROADCASTING COMPANY

    Mr. Solomon. Thank you.
    Good morning, Mr. Chairman and members of the subcommittee.
    Mr. Upton. You might just get the mike a little closer.
    Mr. Solomon. I appreciate the opportunity to appear before 
you today to discuss the Commission's enforcement of broadcast 
indecency restrictions.
    Many of us, particularly with children, are increasingly 
concerned about the quality of broadcast television. 
Broadcasters have a unique responsibility to act in the public 
interest and, in particular, to air appropriate programming 
when children are likely to be in the audience. When 
broadcasters fail, the Commission stands ready to enforce its 
indecency rules.
    Chairman Powell has been outspoken on this issue. He 
recently indicated, for example, that ``this growing coarseness 
is abhorrent and irresponsible.''
    Under Chairman Powell's leadership, the Commission has 
taken indecency enforcement very seriously. To that end, we 
have strengthened our indecency enforcement in several 
respects. Most prominently, the Commission has increased the 
dollar amount of its enforcement substantially. During the past 
3 years, the Commission has proposed indecency enforcement 
actions that, in the aggregate, significantly exceed the amount 
proposed during the prior 7 years under the prior two 
Commissions. In addition, the chairman has proposed a tenfold 
increase in the maximum indecency forfeiture permitted by the 
Communications Act that several of the members have discussed 
already.
    Before I go into further detail about our indecency 
enforcement efforts, I will provide some brief background about 
the legal landscape.
    Section 1464 of the Criminal Code prohibits the broadcast 
of indecent language. A subsequent statute and court decision 
established an indecency safe harbor from 10 p.m. to 6 a.m. The 
Commission has authority to issue both monetary forfeitures of 
up to $27,500 for each indecency violation and to revoke 
broadcast licenses for indecency violations.
    Since the 1970's, the Commission has defined indecency as 
follows: ``language or material that, in context, depicts or 
describes terms patently offensive as measured by contemporary 
community standards for the broadcast medium, sexual and 
excretory activities or organs.'' The courts have affirmed this 
definition as consistent with the first amendment.
    As previously noted, we take our indecency enforcement very 
seriously; and we have taken strong action in this area under 
Chairman Powell's leadership. Here are some highlights of how 
we have stepped up our indecency enforcement:
    First, including actions taken yesterday, since Chairman 
Powell took office in mid-January 2001, the Commission has 
issued 18 proposed indecency forfeitures, so-called notices of 
apparent liability, for a total of about $1.4 million in 
proposed fines. This dollar amount significantly exceeds the 
$850,000 in indecency forfeitures proposed during the prior 7 
years.
    Second, starting last year, the Commission has increased 
the amount of its proposed forfeitures. Instead of routinely 
proposing indecency forfeitures at the $7,000 base amount 
provided in the Commission's Forfeiture Policy Statement, the 
Commission has begun proposing in appropriate cases the 
statutory maximum of $27,500 per incident. Applying this 
stepped-up approach to the incidents, the Commission proposed 
an indecency enforcement action last year of over $350,000 for 
multiple violations. Yesterday, it proposed an indecency 
forfeiture of $700,000, which is the highest single forfeiture 
for any violation in the history of the Commission.
    Third, last year the Commission provided explicit notice to 
broadcasters that it may begin license revocation proceedings 
for serious indecency violations. The Commission now reviews 
indecency cases that occurred after that notice with the 
possibility of revocation being a very serious revocation.
    Fourth, last year the Commission also provided explicit 
notice to broadcasters that it may treat multiple indecent 
utterances within a single program as constituting multiple 
indecency violations, rather than following its traditional 
per-program approach. Again, with respect to cases after that 
announcement, the Commission is reviewing the facts with this 
new approach in mind.
    Fifth, also beginning last year, the Commission broadened 
its indecency investigations to cover not just the station that 
is the subject of the complaint but other co-owned or 
affiliated stations that may broadcast the same potentially 
indecent material. The Commission also began collecting more 
extensive information from broadcasters in the course of our 
indecency investigations.
    Sixth, the Chairman recently proposed that the Commission 
reverse the Enforcement Bureau's October 2003, Golden Globes 
award ruling. The Bureau made this decision based on precedent 
stating that the broadcast of a single expletive, including the 
F word, was not indecent. The Chairman has now proposed to 
reverse the Bureau. If the Commission agrees to this approach, 
it would represent a significant strengthening of indecency 
enforcement. I can assure you the Enforcement Bureau will be 
fully committed to enforcing the law in the manner set forth in 
its decision.
    We believe Congress can also assist us to enforce the 
indecency restrictions in a strong and effective manner. In 
this regard, Chairman Powell has supported increasing by 10 the 
maximum forfeiture amounts specified in the Communications Act 
for indecency; and we hope Congress will enact such 
legislation.
    We appreciate the leadership of Chairman Upton, Congressman 
Markey and others on this issue.
    In sum, I want to assure the subcommittee that the 
Commission is fully committed to vigorous enforcement of the 
broadcast indecency restrictions in order to protect the 
interests of America's children. We stand ready to work with 
you to support this important public interest objective.
    Thank you, and I would be happy to answer any questions.
    [The prepared statement of David Solomon follows:]

Prepared Statement of David Solomon, Chief, Enforcement Bureau, Federal 
                       Communications Commission

    Good morning, Mr. Chairman and members of the Subcommittee. I 
appreciate the opportunity to appear before you today to discuss the 
Commission's enforcement of broadcast indecency restrictions.
    Many Americans, particularly those of us with children, are 
increasingly concerned about the quality of broadcast television. 
Broadcasters have a unique responsibility to act in the public interest 
and, in particular, to air appropriate programming when children are 
likely to be in the audience. When broadcasters fail, the Commission 
stands ready to enforce its indecency rules.
    Chairman Powell has been outspoken on this issue. He recently 
indicated that ``this growing coarseness . . . is abhorrent and 
irresponsible. And it's irresponsible of our programmers to continue to 
try to push the envelope of a reasonable set of policies that tries to 
legitimately balance the interests of the First Amendment with the need 
to protect our kids.''
    Under Chairman Powell's leadership, the Commission has taken 
indecency enforcement very seriously. To that end, we have strengthened 
our indecency enforcement in several respects. Most prominently, the 
Commission has increased the dollar amount of indecency enforcement 
substantially. Including actions anticipated in the near future, during 
the past three years, this Commission will have proposed indecency 
enforcement actions that, in the aggregate, significantly exceed the 
amount proposed during the prior seven years combined under the prior 
two Commissions. In addition, the Chairman has supported a 10-fold 
increase in the maximum indecency forfeiture permitted by the 
Communications Act.
    Each of the Commissioners has played an important role in our 
stepped-up indecency enforcement under Chairman Powell. Commissioner 
Copps has been out front in focusing on the importance of this critical 
issue. Commissioner Martin has successfully urged the Commission to 
count multiple indecent utterances within a program as multiple 
violations. Commissioner Abernathy has been a leader in the development 
of the ``FCC Parents' Place'' on our web site, which provides helpful 
information to parents on a host of family-related issues, including 
indecency. Commissioner Adelstein has also been a strong supporter of 
indecency enforcement.
    Before I go into further detail about our indecency enforcement 
efforts, I will provide some brief background about the legal 
landscape.

                            LEGAL BACKGROUND

    Section 1464 of the Criminal Code prohibits the broadcast of 
indecent language.1 A subsequent statute and court decision 
established an indecency safe harbor from 10 p.m. to 6 a.m.2 
Thus, the Commission's indecency enforcement is limited by law to the 
hours between 6 a.m. and 10 p.m., and our indecency rule incorporates 
this limitation.3 The Commission has authority both to issue 
monetary forfeitures of up to $27,500 for each indecency violation and 
to revoke broadcast licenses for indecency violations.4
---------------------------------------------------------------------------
    \1\ 18 U.S.C.  1464
    \2\ The Public Telecommunications Act of 1992, Pub. L. No. 356, 
102d Cong., 2d Sess., 106 Stat. 949 (1992), and Action for Children's 
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995).
    \3\ 47 C.F.R.  73.3999.
    \4\ 47 U.S.C.  312(a)(6); 503(b)(1)(D).
---------------------------------------------------------------------------
    The courts have held that, unlike obscene speech, indecent speech 
is protected by the First Amendment. The courts have upheld FCC 
regulation of broadcast indecency as a means to protect children. At 
the same time, the courts have warned the FCC to proceed cautiously in 
this area because of the important First Amendment rights at 
stake.5
---------------------------------------------------------------------------
    \5\ See, e.g., FCC v. Pacifica, 438 U.S. 726, 761 n.4 (Powell, J. 
concurring) (``since the Commission may be expected to proceed 
cautiously, as it has in the past, I do not foresee any undue 
`chilling' effect on broadcasters' exercise of their rights''); Action 
for Children's Television, 842 F. 2d at 1340 n. 14 (internal citations 
omitted) (``the potential chilling effect of the FCC's general 
definition of indecency will be tempered by the Commission's restrained 
enforcement policy'').
---------------------------------------------------------------------------
    The Commission has defined indecency since the 1970s as follows: 
``Language or material that, in context, depicts or describes, in terms 
patently offensive as measured by contemporary community standards for 
the broadcast medium, sexual and excretory activities or organs.'' 
6 The courts have affirmed this definition.7
---------------------------------------------------------------------------
    \6\ Industry Guidance on the Commission's Case Law Interpreting 18 
U.S.C.  1464 and Enforcement Policies Regarding Broadcast Indecency, 
16 FCC Rcd 7999 (Indecency Policy Statement).
    \7\ See e.g., Pacifica; Action for Children's Television.
---------------------------------------------------------------------------
    In applying this definition, the Commission balances three key 
factors in order to determine whether, in context, the programming at 
issue is patently offensive: (1) the explicitness or graphic nature of 
the description or depiction of sexual or excretory organs or 
activities; (2) whether the material dwells on or repeats at length 
descriptions of sexual or excretory organs or activities; and (3) 
whether the material appears to pander or is used to titillate, or 
whether the material appears to have been presented for shock 
value.8
---------------------------------------------------------------------------
    \8\ See Indecency Policy Statement.
---------------------------------------------------------------------------
                       FCC INDECENCY ENFORCEMENT

    As previously noted, the Commission takes its indecency enforcement 
responsibilities very seriously. We have taken strong enforcement 
action in this area under Chairman Powell's leadership and have stepped 
up our enforcement in significant ways. Here are some highlights:
    First, including actions anticipated in the near future, since 
Chairman Powell took office in mid-January 2001, the Commission will 
have issued 18 proposed indecency forfeitures (so-called Notices of 
Apparent Liability), for a total of about $1.4 million in proposed 
fines. This dollar amount significantly exceeds the total amount of 
about $850,000 in indecency forfeitures proposed during the prior seven 
years under the two prior Commissions.
    Second, starting last year, the Commission has increased the amount 
of its proposed indecency forfeitures. Instead of routinely proposing 
forfeitures at the $7,000 ``base'' amount provided in the Commission's 
Forfeiture Policy Statement,9 the Commission has begun 
proposing in appropriate cases forfeitures for the statutory maximum of 
$27,500 per incident. Applying this stepped-up approach to enforcement, 
the Commission proposed an indecency forfeiture last year of over 
$350,000 for multiple violations.10 Another proposed 
forfeiture against one licensee of over $700,000 for multiple 
violations is anticipated in the near future. This will be the highest 
single proposed forfeiture against a broadcaster for indecency or any 
other violation in the history of the Commission.
---------------------------------------------------------------------------
    \9\ The Commission's Forfeiture Policy Statement and Amendment of 
Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 
FCC Rcd 17087, recon. denied, 15 FCC Rcd 303 (1997); 47 C.F.R.  
1.180(b)(4) Note.
    \10\ Infinity Broadcasting Operations, Inc., FCC 03-234 (rel. Oct. 
2, 2003).
---------------------------------------------------------------------------
    Third, last year, the Commission provided explicit notice to 
broadcasters that it may begin license revocation proceedings for 
serious indecency violations.11 The Commission now reviews 
indecency cases with the possibility of revocation being a serious 
consideration.
---------------------------------------------------------------------------
    \11\ Infinity Broadcasting Operations, Inc., 18 FCC Rcd 6915 
(2003).
---------------------------------------------------------------------------
    Fourth, last year, the Commission also provided explicit notice to 
broadcasters that it may treat multiple indecent utterances within a 
single program as constituting multiple indecency violations, rather 
than following its traditional per program approach.12 
Again, the Commission now reviews indecency cases with this new 
approach in mind.
---------------------------------------------------------------------------
    \12\ Id.
---------------------------------------------------------------------------
    Fifth, also beginning last year, the Commission broadened its 
indecency investigations to cover not just the station that is the 
subject of a complaint but also co-owned stations that broadcast the 
same potentially indecent material. The Commission also began 
collecting more extensive information from broadcasters in the course 
of our indecency investigations.
    Sixth, the Chairman recently proposed that the Commission reverse 
the Enforcement Bureau's October 2003 ruling that the broadcast of a 
live statement by a Golden Globe award recipient that ``this is really, 
really Fxxx-ing brilliant'' was not indecent because it was used in a 
non-sexual context and was fleeting and isolated.13 The 
Bureau made this decision based on precedent stating that the broadcast 
of a single expletive, including the ``F-Word,'' was not 
indecent.14 The Chairman has now proposed that the 
Commission conclude that the precedents underlying the Bureau decision 
are no longer good law. If the Commission agrees to this approach, and 
does depart from these prior precedents and reverse the Bureau decision 
that we based on those precedents, it would represent a significant 
strengthening of indecency enforcement. I can assure you that the 
Enforcement Bureau will be fully committed to enforcing the law in the 
manner set forth by the Commission in its decision.
---------------------------------------------------------------------------
    \13\ Complaints Against Various Broadcast Licensees Regarding their 
Airing of the ``Golden Globe Awards'' Program, DA 03-3045 (EB rel. Oct. 
3, 2003).
    \14\ See, e.g., Pacifica Foundation, 2 FCC Rcd 2698, 2699 (1987) 
(subsequent history omitted) (``If a complaint focuses solely on the 
use of expletives, we believe that . . . deliberate and repetitive use 
in a patently offensive manner is a requisite to a finding of 
indecency.''); Lincoln Dellar, Renewal of License for Stations KPRL(AM) 
and KDDB(FM), 8 FCC Rcd 2582, 2585 (MMB 1993) (live, fleeting use of 
the ``F-Word'' not indecent); L.M. Communications of South Carolina, 
Inc., 7 FCC Rcd 1595 (MMB 1992) (live, fleeting use of a variant of the 
``F-Word'' not indecent).
---------------------------------------------------------------------------
    Seventh, the Commission has been successful in collecting indecency 
forfeitures.

                               CONCLUSION

    We believe Congress can also assist us in our efforts to enforce 
the indecency restrictions in a strong and effective manner. In this 
regard, Chairman Powell has supported increasing by a factor of 10 the 
maximum statutory forfeiture amounts specified in the Communications 
Act for indecency and we hope Congress will enact such legislation. We 
appreciate the leadership Chairman Upton has provided on this issue.
    In sum, I want to assure the Subcommittee that the Commission is 
fully committed to vigorous enforcement of the broadcast indecency 
restrictions in order to protect the interests of America's children. 
We stand ready to work with you to attain this important public 
interest objective.
    I would be happy to answer any questions you may have. Thank you.

    Mr. Upton. Thank you very much.
    Mr. Bozell.

                STATEMENT OF L. BRENT BOZELL, III

    Mr. Bozell. Chairman Upton and members of the committee, I 
appreciate the opportunity to appear before you to testify on 
this issue.
    I represent the Parents Television Council with 850,000 
members. In the past 2 years, the FCC has literally--has 
received literally hundreds of thousands of complaints from our 
members and others over some 70 separate indecencies on 
television, yet the FCC hasn't seen to agree with a single 
complaint. In fact, in the entire history of the FCC, until 
yesterday afternoon, I might note, this agency had never, never 
fined a single television station in the continental United 
States for broadcast indecency. They found one in Puerto Rico.
    Yet indecencies are now everywhere on broadcast TV. Sex on 
TV has become increasingly explicit, with children exposed to 
more direct references to genitalia, prostitution, pornography, 
kinky practices, oral sex, masturbation, and depictions of 
nudity during prime time viewing hours than they had just a few 
short years ago.
    Foul language during the so-called family hour has 
increased 95 percent since 1998. The ``F-word'' alone--the ``F-
word'' was used four times alone last year on broadcast 
television. The broadcast networks are laughing at the public 
and at everyone in this room because they know they can do or 
say whatever they want, because the FCC will not lift a finger 
to penalize them.
    Consider the following, which aired on an NBC special this 
past May at 8 p.m., in the so-called family hour. In this 
scene, Dana Carvey appears as one of the old Saturday Night 
Live characters, Church Lady, a very funny character, to talk 
to former child star Macaulay Culkin about his sleepovers with 
Michael Jackson. Here is the transcript:
    Church Lady: Did he ever dangle anything in front of you at 
the sleepovers?
    Culkin: Dangle what?
    Church Lady: Oh, I don't know. Say, his ``happy man loaf?'' 
When he moon-walked, he didn't moon you as he walked, did he? 
How about your friends you took to his sleepovers? Did he ever 
get into Billy's jeans?
    The second guest says: Come on. You trying to tell me 
you're screwing your little jingle bells up against the King of 
Pop and shalonz never rose up to salute you? Come on, man. Side 
by side on a Sealy Posturepedic, you never played ``hide the 
toast?'' give me a break.
    And it goes on from there, during the family hour in front 
of millions of children.
    What child needed to be exposed to this? Is it now a 
laughing matter that we laugh about pedophilia? Would you want 
to explain to your youngsters what ``hide the toast'' means?
    My libertarian instinct makes me uncomfortable coming 
before Congress asking for your help, but I do so now on behalf 
of tens of millions of parents simply because it is time that 
the Congress insert itself to halt its assault on the American 
family. The Congress, pure and simple, needs to insist that the 
FCC start doing its job correctly.
    It begins with the need for the FCC to start monitoring 
what is on broadcast television. The FCC has a whopping $278 
million plus annual subsidy from the Congress, yet somehow 
cannot find the time or the resources to monitor what it is 
supposed to be regulating. Nor, apparently, can the FCC afford 
to have a single person working full time on this issue. Not a 
one. That fact comes to us directly from the FCC.
    Second, the FCC needs to stop playing games with the 
public. Thousands upon thousands of people filing complaints 
hear nothing back. I refer you to our report which you will get 
this week, Dereliction of Duty, which documents how the FCC has 
sat on thousands of complaints going back almost 2 years.
    Here is an example, and it was mentioned by one of our 
Members of Congress earlier on. In December 2002, the singer 
Cher on Fox television, on another awards program, said, people 
have been telling me I am on the way out every year, right? So 
F 'em.
    That is not what she said.
    Now that was December 2002, and the FCC still has not 
figured out whether that was indecent.
    More games.
    The Chairman of the FCC assured me personally that it was 
absolutely false that it was requiring the public to attach a 
transcript of the actual show in question, something that is 
virtually impossible for a complainant to have handy at the 
moment. Yet if you look at the FCC Web site, that is what you 
will find.
    More games.
    The FCC reported that in the second quarter of 2003 it 
received only 351 complaints from broadcast indecency. That is 
not true. It is preposterous. In the same period our members 
alone filed over 8,000 complaints. We found out afterwards that 
all the complaints were being lumped into one.
    More games.
    The FCC must be told to stop blocking, yes blocking, 
complaints. Recently, we learned many of our supporters had 
their E-mail complaints returned as undeliverable. Then we were 
being told by somebody in the FCC they were being blocked.
    Third, the FCC should start attaching meaningful fines to 
those that are violating the public trust. The $27,000 maximum 
fine is a joke, and I thank every Member of Congress who has 
said this.
    Chairman Upton and also Congressman Markey, it is good that 
you are proposing that the fines be increased tenfold and that 
the fines be increased up to $3 million for continued offenses. 
Still the fact remains that all is for naught so long as the 
FCC refuses to levy fines.
    Finally, the FCC must get serious about revoking station 
licenses for those who refuse to abide by standards of decency. 
The use of the public airwaves is not an entitlement. It is a 
privilege and a privilege to be honored. Rather than giving 
networks more stations as a reward for their irresponsible 
behavior, perhaps the Congress should begin steps to reduce the 
number of stations.
    If the Congress takes the appropriate steps to force the 
FCC to do its job, the public will be protected, and this 
assault on decency will come to an end. Only Congress can do 
that, too; and if you do an entire generation of parents 
grandparents and children will thank you for it.
    Thank you, Mr. Chairman.
    [The prepared statement of L. Brent Bozell, III, follows:]

Prepared Statement of L. Brent Bozell, III, President and Founder, The 
                       Parents Television Council

    Chairman Upton and Members of the Committee, I appreciate the 
opportunity to appear before you to testify on this important issue.
    I represent the Parents Television Council's 850,000 members, along 
with untold millions of parents who, like me, are disgusted, revolted, 
fed up, horrified--I don't know how to underscore this enough--by the 
raw sewage, ultra violence, graphic sex, and raunchy language that is 
flooding into our living rooms night and day.
    A major responsibility of the FCC is to ensure that those who use 
the public airwaves adhere to standards of decency. Yet, looking at the 
FCC's track record on indecency enforcement, it becomes painfully 
apparent that the FCC could care less about community standards of 
decency or about protecting the innocence of young children.
    In the past two years, the FCC has received literally hundreds of 
thousands of complaints of broadcast indecency from fed-up, angry, 
frustrated parents, yet the FCC hasn't seen fit to agree with a single 
complaint. In fact, in the entire history of the FCC this agency has 
never--never--fined a single television station in the continental 
United States for broadcast indecency.
    In the FCC's view, everything on broadcast TV is ``and always has 
been'' decent. This is ludicrous.
    The FCC is a toothless lion and its non-actions are not only 
irresponsible, they're inexcusable. Either the FCC has no idea what 
it's doing, or it just doesn't care what the public thinks. There's no 
third explanation.
    Indecencies and obscenities are now everywhere on broadcast TV. 
This past year, the Parents Television Council released a series of 
three Special Reports looking at the State of the Television Industry. 
Sex on TV has become increasingly explicit, with children exposed to 
more direct references to genitalia, prostitution, pornography, oral 
sex, kinky practices, masturbation, and depictions of nudity during 
prime time viewing hours--and yes, that includes the so-called ``Family 
Hour''--than they would have been just a few short years ago. Foul 
language during the family viewing hour alone increased by 95% between 
1998 and 2002
    Thanks to some envelope-pushing shows you can now hear words like 
``asshole'' and ``bullshit'' on primetime broadcast TV. Live awards 
shows are pushing the boundaries of acceptable language for broadcast 
TV by ``accidentally'' allowing the ``f'' and ``s'' words to slip past 
network censors. The ``f'' word has been used on broadcast television 
four times in the last year alone.
    The broadcast networks are laughing at the public because they know 
they can do or say whatever they want to over the broadcast airwaves 
and the FCC won't lift a finger to penalize them.
    And it's not just the late night dramas that are pushing standards 
downward.
    Consider the following, which aired on an NBC special this past May 
at 8:00--during the so-called Family Hour. In this scene, Dana Carvey 
appears as one of his old Saturday Night Live characters, ``Church 
Lady,'' to talk to former child star Macaulay Culkin about his 
sleepovers with Michael Jackson.
    Church Lady: ``Did he ever dangle anything in front of you at the 
sleepovers?''
    Culkin: ``Dangle what?''
    Church Lady: ``Oh, I don't know. Say, his `happy man loaf'? . . . 
When he moon-walked, he didn't moon you as he walked, did he? . . . How 
about your friends you took to the sleepovers. Did he ever get into 
Billy's jeans?''
    Second guest, Michael Imperioli: ``I mean come on, you trying to 
tell me you're screwing your little jingle bells up against the King of 
Pop and his shalonz never rose up to salute you? Come on, man. Side by 
side on the Sealy Posturepedic, you never played `hide the toast'? Give 
me a break.''Church Lady: ``Alrighty, well, I think it's time to `Beat 
It.' ''
    What child needs to be exposed to this? Is pedophilia now a 
laughing matter? Would you want to have to explain to your youngster 
what ``hide the toast'' means? Nevertheless, this was broadcast over 
the public airwaves--the public's airwaves--right into the family home, 
``the one place,'' according to the Supreme Court, ``where people 
ordinarily have the right not to be assaulted by uninvited and 
offensive sights and sounds.''
    My libertarian instinct makes me uncomfortable with the notion of 
coming before Congress to ask for your help, but I do so now, on behalf 
of tens of millions of parents, simply because it's time that Congress 
inserted itself to halt this growing problem. The Congress, pure and 
simple, needs to insist that the FCC do its job correctly.
    What should the FCC be doing that it's not doing presently?
    It begins with the need for the FCC to start monitoring what's on 
broadcast television. The FCC has a whopping $278 million + annual 
subsidy from the Congress, yet somehow can't find the time or the 
resources to monitor what's on broadcast television. (Parenthetically, 
let me point out that with a budget of approximately two percent of the 
FCC's, the Parents Television Council manages to do it.)
    It shouldn't be up to the public to point out the violations on the 
airwaves. It should be up to the FCC to find them.
    How disinterested is the FCC in its responsibility to monitor 
indecency on television? Even with that $278 million annual subsidy. 
The FCC apparently still can't afford to have a single person working 
full time on this issue. Not a one. That fact comes to us from the FCC 
directly.
    Second, the FCC needs to start responding to complaints instead of 
playing games with the public. I have been promised personally by 
Chairman Powell that every complaint would get a response, and yet on a 
regular basis, thousands upon thousands of people filing complaints 
hear nothing. I refer you to our report, Dereliction of Duty, which 
documents how the FCC has sat on thousands of complaints going back 
almost two years.
    While accepting an award during the December 2002 Billboard Music 
Awards on Fox, pop-star Cher said, ``People have been telling me I'm on 
the way out every year, right? So f*ck 'em.'' How long should it have 
taken the FCC to decide if this was indecent? The answer is: quite a 
while, apparently. It's been over a year and the FCC has yet to act on 
it.
    The FCC must also be told to stop playing games with the public 
when it comes to filing complaints. The Chairman of the FCC assured me 
personally that it was absolutely false that the FCC was requiring the 
public to attach a transcript of the actual show in question, something 
that is virtually impossible for a complainant to have handy at the 
moment. And yet if you look at the FCC website, that's exactly what it 
instructs the public to do.
    The FCC must be told to stop playing games with numbers. The FCC 
reported that claimed that in the second quarter of 2003 it received 
only 351 complaints about broadcast indecency. That was preposterous, 
simply untrue. In that same period, PTC members alone filed over 8,000 
complaints. The FCC in turn lumped all of them in one basket and called 
it one complaint.
    The FCC must be told to stop blocking--yes, blocking--complaints, 
too! Recently we were told by many of our supporters that their e-
mailed complaints were being returned as ``undeliverable.'' When we 
looked into this we were told by a source within the FCC that they were 
being blocked deliberately.
    Third, the FCC must be told to start enforcing the law by attaching 
meaningful fines to those who are violating the public trust with 
deliberate indecencies on broadcast television. The $27,000 maximum 
fine is a joke, and everyone knows it. It is most welcome news, 
Chairman Upton, that you are proposing that fine be increased tenfold 
and that the fines be increased up to $3 million for continued 
offenses. But the fact remains that all is for naught so long as the 
FCC refuses to levy fines when appropriate. The FCC must be told in no 
uncertain terms that it has the obligation to do that to protect the 
public airwaves. Moreover, Congress should insist that the FCC fine 
stations for each violation. If a shock-jock uses the ``s'' word ten 
times on his show, his station should receive ten fines, not one.
    Finally, the FCC must get serious about revoking station licenses 
for those who refuse to abide by standards of decency. The use of the 
public airwaves is not an entitlement, a right. It is a privilege, and 
a privilege to be honored. Rather than giving networks more stations as 
a reward for their irresponsible behavior, perhaps the Congress ought 
to consider steps to reduce the number of stations allowed for those 
continuously spitting in the public's face.
    I am a father of five who has spent twenty five years trying to 
shield my children from offensive messages coming across the airwaves I 
own. God willing, I'll be a grandfather some day. Wouldn't it be 
wonderful if my grandchildren didn't have to endure such abuse? If the 
Congress takes the appropriate steps to force the FCC to do its job, 
the public trust will be protected and this assault on decency will 
come to an end. Only Congress can do that, too.
    And if you do, an entire generation of grandparents, parents, and 
their children will thank you for it.

    Mr. Upton. Thank you.
    Mr. Corn-Revere.

                 STATEMENT OF ROBERT CORN-REVERE

    Mr. Corn-Revere. Mr. Chairman, members of the committee, 
thank you for inviting me to testify about FCC enforcement of 
the broadcast indecency standard.
    I will address some of the constitutional issues that arise 
from the FCC broadcast content and will explore some of the 
changes in the Commission's report.
    Although I actively represent clients with respect to these 
issues, my testimony today represents my personal views and 
should not necessarily be attributed to my clients or other 
parties.
    This hearing and the FCC's recent indecency actions, 
including those mentioned yesterday, appear to be a significant 
change in the FCC approach toward content regulation. In 
addition, various proposals to bolster the FCC's policies are 
pending, such as H.R. 3717 to increase the level of indecency 
fines by tenfold, are pending and H.R. 3687, which would amend 
Section 1464 of the Criminal Code to create a list of eight 
words and phrases that would have been indecent per se 
evidently, regardless of the context in which they were used.
    The purpose of my testimony today is not to assess any 
particular action or proposed action in this area. I have not 
been asked to do so. My principal point is this. Whatever 
action the Congress or FCC must take, it must be accompanied by 
a comprehensive and good-faith review of the FCC's policies.
    Chairman Powell has said, as government pushes the limits 
of its authority to regulate content of speech, the more its 
action should be constitutionally scrutinized, not less. Now, 
admittedly, he hasn't said this recently, but it remains true, 
nonetheless.
    My prepared testimony provides a fairly detailed 
explanation for my conclusion, so I will summarize my views 
with the following three points:
    First, the Supreme Court five to four decision in FCC v. 
Pacifica Foundation did not give the FCC carte blanche 
authority to decide whatever it thinks broadcasters put on is 
indecent or to impose unlimited penalties.
    It is important to bear in mind the ability to regulate 
indecent speech is a limited constitutional exception, not the 
general rule. The Supreme Court has even validated efforts to 
restrict indecency in print, on film, in the mails, in the 
public forum, on public television, and on the Internet.
    In Pacifica, the so-called seven dirty words case, the 
court has described its action as an emphatically very narrow 
holding and the justices stressed that they were reaching a 
decision in light of the fact that no penalties were assessed 
against Pacifica in that case. Four justices dissented in 
Pacifica; and Justice Powell, who provided the crucial vote, 
stressed this is not to say that the Commission has an 
unrestricted license to decide what speech protected in other 
media may be banned from the airwaves. He added that the 
decision does not apply to cases involving the isolated use of 
a potential offensive word in the course of a broadcast, such 
as the Golden Globes's broadcast, and in Justice Powell's words 
the FCC was to proceed cautiously.
    The real question to be answered is whether Pacifica would 
be reaffirmed today even if there is no change in the FCC 
policy.
    Second, the FCC indecency standard represents a 
constitutional paradox. It purports to regulate speech that the 
courts agree is constitutionally protected.
    The indecency standard is the current manifestation of the 
test for obscenity as existed in Victorian England in the 19th 
Century. It was imported to this country as the test for 
obscenity in the days of Anthony Comstock. But as the first 
amendment doctrine evolved and let courts to fashion a more 
precise test obscenity, the law of indecency failed to keep up.
    Indecency law remains just as Justice Potter Stewart said 
of the early attempts to define obscenity: I may not be able to 
intelligently define it, he said, but I know it when I see it.
    Unfortunately, given the imprecise contours, the FCC cannot 
say the same thing, that it knows it when it sees it. It is 
continually trying to revise its views and provide scant 
guidance either for those who must comport with the law or for 
those who must comply with it.
    Third, there are no quick fixes here. It really is not that 
easy. For one thing, under such a rule, certain passages in the 
Bible would be banned from the air. Isaiah, Chapter 36, Verse 
12, would be out, as would Samuel, Chapter 25, Verse 22. So 
would certain newscasts.
    In 1991, the FCC dismissed an indecency complaint against 
National Public Radio for a newscast which included an excerpt 
of a wiretap from the mob trial of mob boss, John Gotti. The 
same word or variations thereof that appeared in the Golden 
Globes telecast was repeated 10 times in the course of any 30-
second segment. Nevertheless, the Commission found that, given 
the surrounding circumstances, the use of expletives during the 
Gotti segment does not meet its determination of broadcast 
indecency.
    Under a per-se indecency rule the FCC would not be able to 
show the same flexibility during the course of a newscast or a 
political speech, for example. Similarly, in 1987, the Mass 
Media Bureau reluctantly and kind of obliquely gave a green 
light to an on-air reading of James Joyce' Ulysses, saying the 
licensee could make an informed editorial choice based on the 
fact that Federal courts had refused to uphold a ban of Ulysses 
in 1933.
    Under a per-se rule, the FCC would be returned to its pre-
1933 standard, so the only point that I am making is that such 
easy and reflexive solutions are not necessarily the right 
course to go, the right course to take and would face 
significant opposition in case of a court challenge.
    The point of my testimony really is just that whatever 
action the Congress or the FCC takes, it needs to be 
accompanied by rigorous first amendment review.
    [The prepared statement of Robert Corn-Revere follows:]

    Prepared Statement of Robert Corn-Revere, Partner, Davis Wright 
                              Tremaine LLP

    Mr. Chairman, and Members of the Committee. Thank you for inviting 
me to testify about Federal Communications Commission (``FCC'') 
enforcement of the broadcast indecency standard.1 I will 
address some of the constitutional issues that arise from the FCC's 
regulation of broadcast content, and will explore the potential 
implications of changes in the Commission's approach to indecency. 
Based on my analysis, I suggest that any changes in the policy should 
be accompanied by a comprehensive rulemaking proceeding that examines 
fully the First Amendment implications of the FCC's rules. Such review 
should take place regardless of whether changes are initiated at the 
FCC or directed by Congress.
---------------------------------------------------------------------------
    \1\ This testimony represents my personal views and should not be 
attributed to any clients or other parties.
---------------------------------------------------------------------------
 I. RECENT DEVELOPMENTS WITH ENFORCEMENT OF THE FCC'S INDECENCY POLICY

    The FCC and the enforcement of its indecency rules has received a 
great deal of attention lately. Much of it--though by no means all--
centers on a recent staff decision declining to impose a penalty on 
broadcast of one particular expletive 2 during a live 
broadcast of the Golden Globe Awards last January.3 That 
decision currently is under review by the full Commission, and Chairman 
Powell has stated publicly that he intends for the agency to overrule 
the Bureau order.4 According to press reports, the Chairman 
proposed a rule ``that would nearly guarantee an FCC fine if [the 
profanity is] uttered between 6 a.m. and 10 p.m. on radio and broadcast 
television.'' One possible exception to a per se indecency rule would 
be when a profane word is uttered ``in a political situation.'' 
5 Other Commissioners have expressed similar 
views,6 as have various members of Congress.7
---------------------------------------------------------------------------
    \2\ During the unscripted broadcast, Bono of the band U-2 accepted 
an award with the comment, ``This is really, really f**king 
brilliant.'' At the request of Committee staff for purposes of decorum, 
specific references to expletives in my testimony will be altered with 
the use of asterisks (as above), including when such words appear in 
congressional proposals and Supreme Court opinions.
    \3\ In the Matter of Complaints Against Various Broadcast Licensees 
Regarding Their Airing of the ``Golden Globe Awards'' Program, DA 03-
3045 (Enforcement Bureau, released Oct. 3, 2003) (``Golden Globes 
Order''). The staff ruling denied 234 complaints the Commission 
received about the Golden Globes broadcast, of which 93 percent (217 
complaints) came from persons associated with the Parent's Television 
Council. By contrast, about 27 million viewers tune in to the annual 
Golden Globes broadcast. See Lisa de Moraes, The Golden Globes, More 
Glittery Than Ever, Washington Post, January 27, 2004 at C7.
    \4\ It is unusual to see a Chairman and other Commissioners 
publicly lobby to change a staff ruling, since any agency orders issued 
on delegated authority may be reversed by the Commissioners as a 
routine matter. Moreover, full Commission review already has been 
sought in this case.
    \5\ See Frank Ahrens, Powell Seeks Reversal of Profanity Ruling, 
Washington Post, January 14, 2004 at E1.
    \6\ See, e.g., Remarks of Commissioner Kevin J. Martin, 21st Annual 
Institute on Telecom-munications Policy & Regulation, December 5, 2003; 
Letter from Commissioner Michael J. Copps to L. Brent Bozell, III, 
October 27, 2003 (``The Commission has arguably come to put more 
emphasis in recent years on the contextual presentation of indecency. I 
am concerned that we may be too narrow in our interpretation of the 
statute.'').
    \7\ See Letter from Rep. Chip Pickering to Chairman Michael Powell, 
November 21, 2003; Letter from Rep. Joseph Pitts to Chairman Michael 
Powell, November 21, 2003 (with 30 additional signatories).
---------------------------------------------------------------------------
    Much of the adverse reaction to the staff Golden Globes Order 
centers on its observation that the word `` `f**king' may be crude and 
offensive, but, in the context presented here,'' may not be actionably 
indecent when used ``as an adjective or expletive to emphasize an 
exclamation.'' 8 In a less discussed part of the Order, 
however, the Bureau also found that ``fleeting and isolated remarks of 
this nature do not warrant Commission action,'' 9 a 
proposition for which there is ample precedent.10 In fact, 
the initial FCC orders that preceeded Supreme Court review in FCC v. 
Pacifica Foundation, 438 U.S. 726 (1978) stressed that it would be 
inequitable to hold a licensee responsible for indecent language when 
``public events likely to produce offensive speech are covered live, 
and there is no opportunity for journalistic editing.'' 11 
Justice Powell, who supplied the crucial swing vote for Pacifica's slim 
majority, stressed that ``[t]he Commission's holding, and certainly the 
Court's holding today, does not speak to cases involving the isolated 
use of a potentially offensive word.'' 12 But whether or not 
the Golden Globes Order is defensible on other grounds, it may be 
fairly safe to assume given the present climate that the days of the 
Bureau decision are numbered.
---------------------------------------------------------------------------
    \8\ Golden Globes Order,  5. In point of fact, the word 
``f**king'' in the context of the complaint was used as an adverb. But 
it is doubtful the grammatical difference would mollify those most 
upset with the ruling. See, e.g., H.R. 3687, 108th Cong., 1st Sess. 
(introduced Dec. 8, 2003) (proposing to specify words that are indecent 
per se, including all ``grammatical forms of such words and phrases 
(including verb, adjective, gerund, participle, and infinitive 
forms)'').
    \9\ Id.  6.
    \10\ See Industry Guidance on the Commission's Case Law 
Interpreting 18 U.S.C.  1464 and Enforcement Policies Regarding 
Broadcast Indecency, 16 FCC Rcd. 7999, 8008-09 (2001) (``Industry 
Guidance''); Lincoln Dellar, Renewal of License for Stations KPRL(AM) 
and KDDB(FM), 8 FCC Rcd. 2582, 2585 (Mass Media Bureau 1993); L.M. 
Communications of South Carolina, Inc. (WYBB(FM)), 7 FCC Rcd. 1595 
(Mass Media Bureau 1992) (fleeting and isolated utterance in a live and 
spontaneous program is not actionable); Pacifica Foundation, 95 
F.C.C.2d 750, 760 (1983) (``speech that is indecent must involve more 
than an isolated use of an offensive word'').
    \11\ In the Matter of a Petition for Clarification or 
Reconsideration of a Citizen's Complaint Against Pacifica Foundation, 
Station WBAI(FM), New York, N.Y., 59 F.C.C.2d 892, 893 n.1 (1976).
    \12\ Pacifica, 438 U.S. at 760-761 (Powell, J., concurring). See 
also id. at 772 (Brennan J., dissenting) (``I believe that the FCC is 
estopped from using either this decision or its own orders in this case 
. . . as a basis for imposing sanctions on any public radio broadcast 
other than one aired during the daytime or early evening and containing 
the relentless repetition, for longer than a brief interval, of 
[offensive language].'').
---------------------------------------------------------------------------
    The official responses spawned by the current controversy would 
seem to ensure this outcome. Both the House of Representatives and the 
Senate introduced resolutions condemning the Golden Globes Order, and 
have urged the FCC generally to take a more activist role in indecency 
enforcement.13 In addition, Congressman Ose introduced H.R. 
3687 to address directly the Bureau's reasoning regarding the 
contextual use of expletives. It proposes to amend 18 U.S.C.  1464 to 
specify that the term `` `profane', used with respect to language, 
includes the words `sh*t', `pi*s', `f**k', `cu*t', `a**hole', and the 
phrases `c**k sucker', `mother f**ker', and `a** hole', compound use 
(including hyphenated compounds) of such words and phrases with each 
other or with other words and phrases, and other grammatical forms of 
such words and phrases (including verb, adjective, gerund, participle, 
and infinitive forms).'' 14
---------------------------------------------------------------------------
    \13\ H. Res. 482, 108th Cong., 1st Sess. (Dec. 8, 2003) (expressing 
sense of the House the Golden Globes Order is erroneous and directing 
the FCC to ``utilize its enforcement authority to its proper extent''); 
S. Res. 283, 108th Cong., 1st Sess. (Dec. 9, 2003) (expressing sense of 
the Senate with respect to a number of FCC decisions, and suggesting 
that the Commission should reconsider the Golden Globes Order plus 
undertake ``new and serious efforts to sanction broadcast licensees 
that refuse to adhere to the [indecency] standard''). The Senate 
resolution was approved by unanimous consent. Cong. Rec., December 9, 
2003 at S16213.
    \14\ H.R. 3687, 108th Cong., 1st Sess. (introduced Dec. 8, 2003).
---------------------------------------------------------------------------
    Chairman Upton also has urged the Commission to reverse the Golden 
Globes Order and on January 21 introduced H.R. 3717 to increase 
substantially the financial penalties the Commission may impose for 
violations of its indecency rules.15 Chairman Powell has 
endorsed the imposition of vastly higher fines, and has called for a 
ten-fold increase in forfeiture levels in order to create more of a 
deterrent effect on broadcast programmers.16 These actions 
have come after the Commission announced its intention to impose a 
number of significant fines under existing rules, and the agency has 
threatened to revoke the licenses of broadcasters who commit ``serious 
violations'' of the indecency policy. 17
---------------------------------------------------------------------------
    \15\ H.R. 3717, 108th Cong., 2d Sess. (January 21, 2004). The bill 
would amend Section 503(b)(2) of the Communications Act to authorize 
fines of up to $275,000 for each violation of the FCC's indecency rules 
up to a limit of $3 million ``for any single act or failure to act'' in 
the case of a continuing violation. The language of the bill suggests 
that such penalites could be imposed even if the violation is not 
``willful'' or ``repeated.''
    \16\ See Ahrens, supra note 5.
    \17\ Infinity Broadcasting Operations, Inc., FCC 03-302  3 
(released Dec. 8, 2003) (Forfeiture order imposing fine of $27,500 on 
WKRK-FM and indicating that future violations may be treated as 
multiple, repeated offenses subject to significantly higher 
forfeitures; other licensees were placed on notice that enforcement 
actions may include ``initiation of license revocation proceedings'') 
(``WKRK Order''); Infinity Broadcasting Operations, Inc., FCC 03-234 
(released October 2, 2003) (Notice of Apparent Liability in amount of 
$357,500 for broadcast of Opie & Anthony Show over 13 stations); AMFM 
Radio Licenses, LLC, FCC 03-233 (released October 2, 2003) (Notice of 
Apparent Liability in amount of $55,000 for broadcasts of ``Elliott in 
the Morning'' program).
---------------------------------------------------------------------------
 II. ANY CHANGE IN THE FCC'S INDECENCY POLICY REQUIRES A COMPREHENSIVE 
                   CONSTITUTIONAL REVIEW OF THE RULES

    Whatever course the FCC and Congress may take in this area, neither 
body can avoid the need for thorough constitutional scrutiny of its 
actions. It is insufficient simply to note that the Supreme Court 
upheld the FCC in an indecency action a quarter century ago in FCC v. 
Pacifica Foundation, 438 U.S. 726 (1978) given the intervening changes 
in the law, technology, and in society. Thus far, however, the FCC has 
resisted any such review.18 But as Chairman (then 
Commissioner) Powell has said, ``as government pushes the limits of its 
authority to regulate the content of speech, the more its actions 
should be constitutionally scrutinized, not less.'' He previously has 
stressed that ``any responsible government official who has taken an 
oath to support and defend the Constitution must squarely addess this 
important question.'' 19 In this regard, the United States 
Court of Appeals for the District of Columbia Circuit has reminded the 
FCC Commissioners that ``[f]ederal officials are not only bound by the 
Constitution, they must also take a specific oath to support and defend 
it.'' 20 Accordingly, Chairman Powell has said that he tries 
to answer a series of questions before taking regulatory actions in 
order to ``execute this haughty responsibility without feeling [the] 
decisions are the result of nothing more than . . . personal 
preferences or the skillful lobbying efforts of the most effective 
special interest groups or politicians.'' The final, and most important 
question he asks is, ``Would any action we take violate the 
Constitution?'' 21
---------------------------------------------------------------------------
    \18\ See, e.g., WKRK Order  6 n.1 (dismissing detailed legal 
analysis of FCC policies in a footnote: ``Nothing in the Comments 
alters our decision here or leads us to conclude that the Commission 
should initiate a broader proceeding to reconsider our indecency 
policies in light of the First Amendment issues raised by the 
Comments.'').
    \19\ Remarks by Commissioner Michael K. Powell, Willful Denial and 
First Amendment Jurisprudence, Media Institute (Washington, D.C., April 
22, 1998) (``Willful Denial Speech'').
    \20\ Meredith Corp. v. FCC, 809 F.2d 863, 874 (D.C. Cir. 1987) 
(citing U.S. Const. art. VI, cl. 3). In this regard, it is elementary 
that enforcing ``a Commission-generated policy that the Commission 
itself believes is unconstitutional may well constitute a violation of 
that oath.'' But, in any event, ``the Commission must discharge its 
constitutional obligations by explicitly considering [a] claim that the 
FCC's enforcement of [its policies] against [a licensee] deprives it of 
its constitutional rights. The Commission's failure to do so seems to 
us the very paradigm of arbitrary and capricious administrative 
action.'' Id.
    \21\ Remarks by Commissioner Michael K. Powell, The Public Interest 
Standard: A New Regulator's Search for Enlightenment, American Bar 
Association 17th Annual Legal Forum on Communications Law (Las Vegas, 
Nevada., April 5, 1998) (``Search for Enlightenment Speech'').
---------------------------------------------------------------------------
    With respect to regulating broadcast content, Chairman Powell has 
criticized as a ``willful denial of reality'' the Commission's failure 
to reexamine the ``demonstrably faulty premises for broadcast 
regulation,'' including the claim ``that broadcasting is uniquely 
intrusive as a basis for restricting speech.'' Of this rationale he has 
said, ``[t]he TV set attached to rabbit ears is no more an intruder 
into the home than cable, DBS, or newspapers for that matter. Most 
Americans are willing to bring TVs into their living rooms with no 
illusion as to what they will get when they turn them on.'' 
22 The Chairman has explained that ``[t]echnology has 
evaporated any meaningful distinctions among distribution [media], 
making it unsustainable for the courts to segregate broadcasting from 
other [media] for First Amendment purposes. It is just fantastic to 
maintain that the First Amendment changes as you click through the 
channels on your television set.'' 23
---------------------------------------------------------------------------
    \22\ Willful Denial Speech, supra.
    \23\ Search for Enlightenment Speech, supra.
---------------------------------------------------------------------------
    Yet the FCC's reluctance to address these basic issues led 
Commissioner Powell to observe that ``the government has been engaged 
for too long in willful denial in order to subvert the Constitution so 
that it can impose its speech preferences on the public--exactly the 
sort of infringement of individual freedom the Constitution was 
masterfully designed to prevent.'' 24 As Chairman, Powell 
has said that he is hesitant to second-guess the choices made by 
members of the broadcast audience and has noted that ``I don't want the 
government as my nanny.'' And while acknowledging that some programming 
content makes him anxious, he has stated ``I don't get paid to write 
general anxiety rules. I get paid to write specific ones that have 
sufficient clarity to sustain judicial review as not being arbitrary 
and capricious and not just an expression of my preference.'' 
25
---------------------------------------------------------------------------
    \24\ Willful Denial Speech, supra. See also Remarks by Commissioner 
Michael K. Powell, The Freedom Forum (Arlington, VA, April 27, 1998) 
(``We must admit to these new realities and quit subverting the 
Constitution in order for the government to be free to impose its 
speech preferences on the public.'').
    \25\ The Chairman Elucidates, Broadcasting & Cable, February 12, 
2001 at 34-35.
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    This is not intended to suggest that the Chairman would reaffirm 
these prior statements in a formal proceeding, nor is it an attempt to 
predict how a Commission majority might act. Rather, the point is that 
the government has a constitutional obligation to address these 
significant First Amendment issues to the extent it modifies or 
reaffirms its indecency enforcement policy. The same constitutional 
duty applies regardless whether Congress or the FCC takes the lead in 
this area.26 As I explain in the following sections, the 
Commission's existing approach to indecency enforcement is fraught with 
constitutional difficulties, and any effort to increase enforcement 
efforts, raise the level of fines, or to specify a per se indecency 
rule will make these problems even more pressing. I have not been asked 
to analyze any particular proposal or to express an opinion about its 
constitutionality. Accordingly, my testimony simply identifies the 
principal First Amendment questions that will need to be addressed. My 
primary conclusion is, one way or the other, the FCC can no longer put 
off constitutional review of its indecency policies.
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    \26\ See, e.g., United States v. Playboy Entertainment Group, Inc., 
529 U.S. 803, 816 (2000) (``When the Government restricts speech, the 
Government bears the burden of proving the constitutionality of its 
actions.''); Sable Communications of California, Inc. v. FCC, 492 U.S. 
115, 129 (1989) (``Court does not defer to congressional findings 
because ``our task in the end is to decide whether Congress has 
violated the Constitution.'').
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III. FCC V. PACIFICA FOUNDATION DOES NOT PROVIDE UNLIMITED AUTHORITY TO 
                 DEFINE AND PUNISH BROADCAST INDECENCY

    Senate Resolution 283, adopted last month by unanimous consent, 
urges the FCC to ``vigorously and expeditiously enforc[e] its own 
United States Supreme Court-approved standard for indecency in 
broadcast media, as established in the declaratory order In the Matter 
of a Citizen's Complaint Against Pacifica Foundation Station WBAI(FM), 
56 F.C.C.2d 94 (1975).'' But in this regard, it is important not to 
read too much into the Pacifica precedent. The Supreme Court's 5-4 
decision in that case did not give the FCC carte blanche authority to 
decide what broadcasts are indecent or to impose unlimited penalties.
    It is important to keep in mind that the ability to regulate so-
called ``indecent'' speech is a limited constitutional exception, not 
the general rule. The Supreme Court has invalidated efforts to restrict 
indecency in print,27 on film, 28 in the 
mails,29 in the public forum,30 on cable 
television 31 and on the Internet.32 The Pacifica 
Court applied a somewhat different standard for broadcasting, but that 
decision cannot be read too broadly. Pacifica was a fragmented (5-4) 
decision that did not approve a particular standard or uphold a 
substantive penalty against the licensee.33 The Supreme 
Court subsequently has acknowledged that the FCC's definition of 
indecency was not endorsed by a majority of the Justices, and it 
repeatedly has described Pacifica as an ``emphatically narrow 
holding.'' 34 Later decisions by lower courts did not 
analyze or reaffirm Pacifica so much as simply recite and apply its 
outcome.35
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    \27\ Butler v. Michigan, 352 U.S. 380, 383 (1957). See also Hamling 
v. United States, 418 U.S. 87, 113-114 (1974) (statutory prohibition on 
``indecent'' or ``obscene'' speech may be constitutionally enforced 
only against obscenity).
    \28\ United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130 
n.7 (1973).
    \29\ Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).
    \30\ Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).
    \31\ United States v. Playboy Entertainment Group, Inc., 529 U.S. 
803 (2000).
    \32\ Reno v. ACLU, 521 U.S. 844 (1997).
    \33\ See Pacifica, 438 U.S. at 743 (plurality op.) and at 75556 
(Powell, J., concurring) (``[t]he Court today reviews only the 
Commission's holding that Carlin's monologue was indecent `as 
broadcast' at two o'clock in the afternoon, and not the broad sweep of 
the Commission's opinion''). See also Carlin Communications, Inc. v. 
FCC, 837 F.2d 546, 559 (2d Cir. 1988) (``[t]he Pacifica Court declined 
to endorse the Commission definition of what was indecent''); ACLU v. 
Reno, No. Civ. A. 96-963, 1996 WL 65464 at *3 (E.D.Pa. Feb. 15, 1996) 
(Buckwalter, J.) (``it simply is not clear, contrary to what the 
government suggests, that the word `indecent' has ever been defined by 
the Supreme Court'').
    \34\ Reno, 521 U.S. at 866-867, 870; Sable, 492 U.S. at 127; 
Bolger, 463 U.S. at 74.
    \35\ E.g., Action for Children's Television v. FCC, 852 F.2d 1332, 
1339 (D.C. Cir. 1988) (``ACT I'') (``if acceptance of the FCC's generic 
definition of `indecent' as capable of surviving a vagueness challenge 
is not implicit in Pacifica, we have misunderstood Higher Authority and 
welcome correction''). See also Action for Children's Television v. 
FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991) (``ACT II''); Information 
Providers' Coalition for Defense of the First Amendment v. FCC, 928 
F.2d 866, 875 (``We note that the Sable opinion did not describe the 
Commission's definition of indecency in ipsissimis verbis. No question 
was presented there, and none here, of the contents of the Commission's 
definition discussed in Pacifica.'') (9th Cir. 1991); Alliance for 
Community Media, 56 F.3d 105, 129 (D.C. Cir. 1995), rev'd in part and 
aff'd in part sub nom. Denver Area Educ. Telecomms. Consortium v. FCC, 
518 U.S. 717, 756 (1996); United States v. Evergreen Media Corp. of 
Chicago, 832 F. Supp. 1183, 1186 (N.D. Ill. 1993) (the ACT I court 
``went so far as to openly invite correction by the Supreme Court'').
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    Accordingly, it is not prudent simply to assume that policies 
approved in the past remain valid now or in the future. The Supreme 
Court has long held that ``because the broadcast industry is dynamic in 
terms of technological change[,] solutions adequate a decade ago are 
not necessarily so now, and those acceptable today may well be outmoded 
ten years hence.'' 36 The Commission recently reaffirmed 
this principle in its omnibus broadcast ownership proceeding, noting 
that current regulations failed to account for vast changes in the 
media landscape.37
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    \36\ CBS v. Democratic National Committee, 412 U.S. 94, 102 (1973). 
See National Broadcasting Co. v. United States, 319 U.S. 190, 225 
(1943) (``If time and changing circumstances reveal that the `public 
interest' is not served by application of the regulations, it must be 
assumed that the Commission will act in accordance with its statutory 
obligations.'').
    \37\ 2002 Biennial Regulatory Review--Review of the Commission's 
Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 
202 of the Telecommunications Act of 1996, 18 FCC Rcd. 13,620, 13,623 
(2003) (``Biennial Regulatory Review''). See also Carriage of Digital 
Television Broadcast Signals, 16 FCC Rcd 2598,  12 (2001) (concluding 
that proposed new applications of must carry rules would violate the 
First Amendment despite Supreme Court approval of analog must carry 
rules in 1997).
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    Much has happened in the 25 years since Pacifica was decided and 
the 10 years since the D.C. Circuit last addressed the issue of the 
broadcast indecency standard. To begin with, it is far less plausible 
for the FCC to justify indecency regulations on the premise that ``the 
broadcast media have established a uniquely pervasive presence in the 
lives of all Americans.'' 38 As the Commission most recently 
concluded, ``the modern media marketplace is far different than just a 
decade ago.'' It found that traditional media ``have greatly evolved,'' 
and ``new modes of media have transformed the landscape, providing more 
choice, greater flexibility, and more control than at any other time in 
history.'' 39 Of particular relevance here, the Commission 
noted that ``[t]oday's high school seniors are the first generation of 
Americans to have grown up with this extraordinary level of abundance 
in today's media marketplace.'' It found that most teens have access to 
cable television and high speed Internet access, many live in 
households that receive 100 to 200 channels of video programming and 
thus ``have come to expect immediate and continuous access to news, 
information, and entertainment.'' 40 In this environment, 
imposing special speech restrictions on the broadcast medium compared 
to other media seems futile.41
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    \38\ Pacifica, 438 U.S. at 748.
    \39\ Biennial Regulatory Review  86-87.
    \40\ Id.  88. Current research shows that teens and young adults 
spend considerably more time online than they do watching TV or 
listening to the radio (16.7 hours per week online versus 13.6 hours 
watching TV or 12 hours listening to the radio). Communications Daily, 
July 25, 2003, p. 7 (reporting results of study by Harris Interactive 
and Teenage Research Unlimited).
    \41\ See Bolger, 463 U.S. at 72-73, striking down a restriction on 
unsolicited mailings of advertisements for contraceptives because the 
government could not demonstrate that the policy actually serves the 
stated interest. The Court noted that the policy could at best lend 
only ``incremental support'' because parents ``must already cope with 
the multitude of external stimuli that color their children's 
perceptions of sensitive subjects.'' See also Rubin v. Coors Brewing 
Co., 514 U.S. 476, 488-89 (1995) (``exemptions and inconsistencies'' 
render a speech restriction irrational and undermine the government's 
ability to show that it serves its intended purpose).
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    It also must be noted that society has changed as well, and has 
grown far more tolerant of the wide range of content that is available. 
In 1951 a Houston television station caused a public outcry when it 
planned to air a bedding commercial showing a husband and wife in a 
double bed, and that same decade the Everly Brothers' song Wake Up, 
Little Susie was banned in Boston.42 We do not live in the 
same culture as when Rob and Laura Petrie on the Dick Van Dyke Show had 
to sleep in separate beds,43 yet the FCC's indecency rules 
are based on a history of indecency enforcement dating back to 
1927.44 Changes in technology, in society, and in audience 
expectations all have contributed to vastly different broadcast 
standards and practices.45 This is not to suggest that such 
developments necessarily are ``good'' or ``bad.'' They merely reflect 
changes in the ``contemporary community standards for the broadcast 
medium.''
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    \42\ See Lili Levy, The Hard Case of Broadcast Indecency, NYU Rev. 
L. & Soc. Change 49, 50 (1992-93).
    \43\ See Louis Chunovic, One Foot on the Floor: The Curious 
Evolution of Sex on Television From I Love Lucy to South Park 19 (2000) 
(``At first, any mention at all of sex on TV was strictly taboo--so 
much so that the ubiquitous censors mandated that even married couples 
portrayed on the new medium must sleep in separate beds, and the very 
word `pregnant' was banned from the airwaves.''); Tom Shales, 
``Twilight Zone'': A Dim Shadow of its Former Self,'' Washington Post, 
November 15, 2002, p. C1 (``There would have been no way of dealing 
with [the morality of `virtual sex'] in the original [Twilight Zone] 
because on television of that era, nobody talked about having sex 
before, during or after marriage--or at any other time, either.'').
    \44\ See Pacifica, 438 U.S. at 737-738.
    \45\ See generally Alfred R. Schneider, The Gatekeeper: My 30 Years 
as a TV Censor 4, 140 (Syracuse University Press 2001).
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    The law also has evolved since the Supreme Court considered the 
FCC's broadcast indecency rules. The Court has since confirmed that 
``indecent'' speech is fully protected by the First Amendment and is 
not subject to diminished scrutiny as ``low value'' speech, as three 
Justices who joined the Pacifica plurality opinion had 
suggested.46 Rather, it stressed that ``[t]he history of the 
law of free expression is one of vindication in cases involving speech 
that many citizens find shabby, offensive, or even ugly,'' and that the 
government cannot assume that it has greater latitude to regulate 
because of its belief that ``the speech is not very important.'' 
47 Additionally, since Pacifica the Court has invalidated 
government-imposed indecency restrictions on cable television channels 
despite its finding that ``[c]able television broadcasting, including 
access channel broadcasting, is as `accessible to children' as over-
the-air broadcasting, if not more so.'' 48 More importantly, 
in Reno v. ACLU, the Court for the first time subjected the indecency 
definition (in the Internet context) to rigorous scrutiny and found it 
to be seriously deficient.49 These decisions raise serious 
questions about the continuing validity of Pacifica.
---------------------------------------------------------------------------
    \46\ Only Justices Stevens, Rehnquist, and Chief Justice Burger 
joined that part of the opinion asserting that indecent speech lies 
``at the periphery of First Amendment concern.'' Pacifica, 438 U.S. at 
743.
    \47\ Playboy Entertainment Group, 529 U.S. at 826.
    \48\ Denver Area Educ. Telecomms. Consortium, 518 U.S. at 744. The 
Court upheld a provision that permitted cable operators to adopt 
editorial policies for leased access channels, but rejected government-
imposed restrictions on indecent programs on leased and public access 
channels.
    \49\ 521 U.S. at 871-881.
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    Throughout this period, the FCC has shown a marked inability to 
clarify and apply its own standard. After a decade in which the FCC 
applied its policy only to the seven specific words in the George 
Carlin monologue (the so-called ``seven dirty words''), it switched to 
enforcing a ``generic'' indecency policy.50 In 1994, the 
Commission settled an enforcement action (in part to avoid having to 
respond to a First Amendment defense in court) and committed to 
providing ``industry guidance'' as to the meaning of the indecency 
standard within six months of the settlement agreement.51 It 
took another six and one-half years for the Commission to fulfill this 
condition by issuing a policy statement in 2001 purporting to offer 
interpretive guidance on the indecency standard.52 Yet 
despite this belated attempt at clarification, the Commission itself 
has been unable to interpret its own standard, as explained in greater 
detail below.
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    \50\ New Indecency Enforcement Standards to be Applied to all 
Broadcast and Amateur Radio Licensees, 2 FCC Rcd. 2726 (1987) (``New 
Indecency Enforcement Standards'').
    \51\ Evergreen Media, Inc. v. FCC, Civil No. 92 C 5600 (N.D. Ill. 
Feb. 22, 1994).
    \52\ See Industry Guidance, 16 FCC Rcd. 7999.
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      IV. THE INDECENCY STANDARD PRESENTS A CONSTITUTIONAL PARADOX

    From the outset, the indecency standard has presented a genuine 
paradox. The courts confirm that indecent speech is fully protected by 
the First Amendment, yet the FCC's amorphous standard provides no 
protection as a practical matter. On the other hand, obscenity is 
``unprotected'' by the First Amendment, yet constitutional doctrine has 
evolved that provides far greater legal protection than does the 
indecency standard. A brief review of these two doctrines and how they 
developed places the current deficiencies of the indecency regime into 
bold relief.

A. Experience With a Vague Test for Obscenity Foreshadowed the 
        Constitutional Problems of the Indecency Standard
    Before the courts extended First Amendment principles to the law of 
obscenity, the legal test that applied was very similar to the standard 
now used by the FCC to define indecency. The first American cases were 
based on a 19th Century English decision, Regina v. Hicklin, which held 
that obscenity was material that tended to corrupt the morals of a 
young or immature person.53 Under the Hicklin standard, 
literature was judged obscene based upon a review only of brief 
excerpts of a publication and not the work as a whole.54 
Consequently, the intended audience of a book was unimportant if a 
young and inexperienced person might be exposed to the supposedly 
corrupting influence. Additionally, it was immaterial whether the book 
possessed literary merit. Indeed, some found that literary merit 
compounded the crime, by ``enhancing a book's capacity to deprave and 
corrupt.'' 55
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    \53\ Regina v. Hicklin, 3 L.R.-Q.B. 360 (1868). The test focused 
not on the ``average person in the community,'' but on ``those whose 
minds are open to such immoral influences, and into whose hands a 
publication of this sort may fall.''
    \54\ Frederick F. Schauer, The Law of Obscenity 23 (1976).
    \55\ Edward de Grazia, Girls Lean Back Everywhere 12 (1992).
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    Not surprisingly, under this test for obscenity, ``[t]he first half 
of the 20th century [was] marked by heated litigation over books which 
are now generally regarded as classics.'' 56 Using the 
Hicklin rule, American courts held obscene such works as Theodore 
Dreiser's An American Tragedy,57 D.H. Lawrence's Lady 
Chatterley's Lover,58 Erskine Caldwell's God's Little 
Acre,59 Radclyffe Hall's The Well of 
Loneliness,60 Arthur Schnitzler's Casanova's 
Homecoming,61 Henry Miller's Tropic of Cancer and Tropic of 
Capricorn,62 and James Joyce's Ulysses.63
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    \56\ Schauer, supra, at 23-24.
    \57\ Commonwealth v. Friede, 171 N.E. 472 (Mass. 1930).
    \58\ People v. Dial Press, 48 N.Y.S.2d 480 (Magis. Ct. 1944).
    \59\ Attorney Gen. v. Book Named ``God's Little Acre'', 93 N.E.2d 
819 (Mass. 1950).
    \60\ People v. Friede, 233 N.Y.S. 565 (Magis. Ct. 1929).
    \61\ People v. Seltzer, 203 N.Y.S. 809 (Sup. Ct. 1924).
    \62\ United States v. Two Obscene Books, 99 F. Supp. 760 (N.D. Cal. 
1951), aff'd sub nom. Besig v. United States, 208 F.2d 142 (9th Cir. 
1953).
    \63\ Not only was a small literary magazine convicted of obscenity 
for publishing Ulysses in installments, but the U.S. Post Office seized 
and burned all of the issues of the magazine. No American publisher 
considered printing Ulysses for the next eleven years. See de Grazia, 
supra, at 9-13, 16-17.
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    In many cases, the mere threat of prosecution was enough to stop 
publication. By this method, publishers were ``persuaded'' to withdraw 
from circulation and destroy all outstanding copies of Women in Love, 
by D.H. Lawrence, The Genius, by Theodore Dreiser, and Memoirs of 
Hecate County, by Edmund Wilson.64 Other literary greats 
that were attacked included Nathaniel Hawthorne, Walt Whitman, Ernest 
Hemmingway, Sinclair Lewis, Leo Tolstoy, Honore de Balzac, and George 
Bernard Shaw.65
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    \64\ Id. at 72-73, 710.
    \65\ Margaret A. Blanchard, The American Urge to Censor: Freedom of 
Expression Versus the Desire to Sanitize Society--From Anthony Comstock 
to 2 Live Crew, 33 Wm. & Mary L. Rev. 741, 746, 758, 771 (1992).
---------------------------------------------------------------------------
    A significant break with Hicklin came in United States v. One Book 
Entitled Ulysses, where the United States Court of Appeals for the 
Second Circuit declined to find the book Ulysses obscene when ``taken 
as a whole'' and after assessing its effect on the average member of 
the community.66 Some other courts began to follow 
suit.67 Despite this emerging trend, however, many 
publishers continued to shy away from books they considered risky. For 
example, Lady Chatterley's Lover, written in 1928, was not published in 
its unexpurgated form in America until 1959.68 Tropic of 
Cancer, written in 1934, was unpublished in the United States for 26 
years.69
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    \66\ United States v. One Book Entitled Ulysses, 72 F.2d 705, 707-
708 (2d Cir. 1934).
    \67\ E.g., United States v. Levine, 83 F.2d 156 (2d Cir. 1936); 
ACLU v. City of Chicago, 121 N.E.2d 585 (Ill. 1954), appeal dismissed, 
348 U.S. 979 (1955); People v. Viking Press, Inc., 264 N.Y.S. 534 
(Magis. Ct. 1933).
    \68\ de Grazia, supra, at 94; see Grove Press, Inc. v. 
Christenberry, 276 F.2d 433 (2d Cir. 1960).
    \69\ de Grazia, supra, at 55, 370.
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    Finally, in 1957, the Supreme Court expressly abandoned the Hicklin 
rule and held that the First Amendment requires that works must be 
judged as a whole in their entire context, considering their effect on 
the average member of the community--not the most vulnerable. Moreover, 
a work could not be considered obscene if it possessed serious 
value.70 That same year, the Court struck down a Michigan 
law that prohibited books containing ``immoral, lewd [and] lascivious 
language . . . tending to the corruption of the morals of youth'' 
because it ``reduce[d] the adult population . . . to reading only what 
is fit for children.'' 71
---------------------------------------------------------------------------
    \70\ Roth v. United States, 354 U.S. 476, 489-490 (1957).
    \71\ Butler, 352 U.S. at 383.
---------------------------------------------------------------------------
    Eventually, the Court settled on the current three part test for 
obscenity: (1) whether the average person, applying contemporary 
community standards would find that the work, taken as a whole, appeals 
to the prurient interest, (2) whether the work depicts or describes, in 
a patently offensive way, sexual conduct specifically defined by the 
applicable state law, and (3) whether the work, taken as a whole, lacks 
serious literary, artistic, political, or scientific value.'' 
72 Debate about the test for obscenity has continued, but 
the problems associated with the discredited Hicklin rule are now a 
thing of the past.
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    \72\ Miller v. California, 413 U.S. 15, 24 (1973).
---------------------------------------------------------------------------
B. The Indecency Standard Provides Less Constitutional Protection Than 
        Does the Test for Obscenity
    The unfortunate history of obscenity law and the change that 
occurred after courts imposed the discipline of the First Amendment on 
this area of the law should have been instructive in the development of 
an indecency standard since such speech is supposed to be 
constitutionally protected. However, the test for indecency prohibits 
the transmission (at a time of day when children are likely to be in 
the audience) of ``language or material that, in context, depicts or 
describes, in terms patently offensive as measured by contemporary 
community standards for the broadcast medium, sexual or excretory 
activities or organs.'' 73 Just as under Hicklin, the 
indecency standard applies to selected passages, not to works as a 
whole; it is based not on the average person in a community, but upon 
children; and literary or artistic merit does not bar liability. In 
short, the three-part test that courts developed over time to ensure 
the application of First Amendment restraints on obscenity laws is 
precisely what the indecency standard lacks.
---------------------------------------------------------------------------
    \73\ Industry Guidance, 16 FCC Rcd. at 8000.
---------------------------------------------------------------------------
    The FCC historically has defended its indecency definition on the 
basis that it is ``similar to language'' employed in part of the Miller 
obscenity test.74 In Reno, however, the government 
unsuccessfully offered precisely the same argument--that the 
Communications Decency Act's (``CDA's'') ``patently offensive'' and 
``indecency'' standards are one part of the three-prong Miller test and 
therefore are constitutional--but the Supreme Court rejected that 
defense. It stressed that ``[j]ust because a definition including three 
limitations is not vague, it does not follow that one of those 
limitations, standing by itself, is not vague.'' 75 The 
Court explained that the other Miller limitations (requiring that the 
work be ``taken as a whole,'' appeal to the ``prurient'' interest, and 
that it must lack serious literary, artistic, political or scientific 
value) ``critically limit[] the uncertain sweep of the obscenity 
definition.'' 76
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    \74\ See Playboy Entertainment Group, Inc. v. United States, 945 F. 
Supp. 772, 791 (D. Del. 1996).
    \75\ Reno, 521 U.S. at 872-873 (emphasis added).
    \76\ Id. The Reno Court found that the indecency standard is 
inadequate even with respect to the one part of the Miller test that it 
sought to incorporate. Id. at 846. The type of programming covered by 
the indecency standard is not ``specifically defined by the applicable 
. . . law'' since Section 1464 (like the CDA) includes no ``textual 
embellishment.'' Id. at 871 & n.35.
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1. The Indecency Standard Does Not Require Review of the Work as a 
        Whole
    Unlike the Miller obscenity test, the indecency standard enforced 
by the FCC has never required an examination of the work ``as a 
whole,'' or that the material appeal to the prurient 
interest.77 Quite to the contrary, the Commission has 
expressly rejected claims that it ``is required [to] take into account 
the work as a whole.''78 Accordingly, the FCC has found a 
violation of the law where less than five percent of a program was 
devoted to sexually-oriented material. The Commission concluded that it 
could impose a fine ``[w]hether or not the context of the entire 
[program] dwelt on sexual themes.'' 79 Similarly, if the FCC 
reverses the staff Golden Globes Order, it will have decided that a 
single word uttered in the course of a three-hour live telecast is 
sufficient to render the program indecent.
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    \77\ Illinois Citizens Comm. for Broad. v. FCC, 515 F.2d 397, 406 
(D.C. Cir. 1974).
    \78\ Implementation of Section 10 of the Cable Consumer Protection 
and Competition Act of 1992, 8 FCC Rcd. 998, 1004 (1993), aff'd, 
Alliance for Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995), 
rev'd in part and aff'd in part sub nom. Denver Area Educ. Telecomms. 
Consortium, 518 U.S. 717.
    \79\ WIOD (AM), 6 FCC Rcd. 3704, 3705 (1989).
---------------------------------------------------------------------------
    The focus of indecency enforcement on selected passages and not the 
work as a whole is a significant constitutional defect. Because of 
this, the Supreme Court found that the indecency standard when applied 
to the Internet ``unquestionably silences some speakers whose messages 
would be entitled to constitutional protection.'' 80 The 
Court held that the requirement that the isolated passages be 
considered ``in context'' did not cure the problem. More recently, in 
rejecting the application of the ``harmful to minors'' standard to 
online communications, the United States Court of Appeals for the Third 
Circuit explained that ``[t]he taken `as a whole' language is 
crucial.'' 81 As the Supreme Court has emphasized, it is 
``an essential First Amendment rule [that t]he artistic merit of a work 
does not depend on the presence of a single explicit scene.'' 
82 Accordingly, any standard that permits a decisionmaker to 
penalize ``indecent'' or ``harmful to minors'' material in isolation 
necessarily ``results in significant overinclusiveness.'' 83
---------------------------------------------------------------------------
    \80\ Reno, 521 U.S. at 874.
    \81\ ACLU v. Ashcroft, 322 F.3d 240, 252 (3d Cir. 2003).
    \82\ Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, 1401 
(2002).
    \83\ ACLU v. Ashcroft, 322 F.3d at 267.
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2. The Indecency Standard Does Not Evaluate the Effect of Material on 
        the Average Person
    The Miller test requires that the patent offensiveness of a work be 
measured by its impact on the average member of the community, and not 
its effect on the most ``vulnerable,'' but the indecency standard is 
precisely the opposite. Like the discredited Hicklin rule, the focus of 
indecency regulation is the effect of sexually-oriented material on 
children.84 This focus on minors was one of the principal 
problems of obscenity law before the First Amendment was brought to 
bear on this area of the law, yet the indecency standard replicates the 
error.
---------------------------------------------------------------------------
    \84\ Pacifica, 438 U.S. at 749-750; see Reno, 521 U.S. at 871 n.37.
---------------------------------------------------------------------------
    Even if the indecency standard employed all three prongs of the 
Miller test, its requirement that the Commission assess patent 
offensiveness as to children makes the standard far less precise. As 
the Third Circuit pointed out in ACLU v. Ashcroft, the term minor 
``applies in a literal sense to an infant, a five-year-old, or a person 
just shy of the age of seventeen'' and that speakers ``must guess at 
the potential audience of minors and their ages'' in order to comply 
with the law.85 Such a requirement ``is not narrowly drawn 
to achieve the statute's purpose . . . and does not lend itself to a 
commonsense meaning.'' 86 The court concluded that ``[a]s a 
result of this vagueness'' those affected by the law will be deterred 
from engaging in a wide rage of constitutionally protected speech'' and 
that ``[t]he chilling effect caused by this vagueness offends the 
Constitution.'' 87
---------------------------------------------------------------------------
    \85\ ACLU v. Ashcroft, 322 F.3d at 254.
    \86\ Id. at 255.
    \87\ Id. at 269 n.37.
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    The Third Circuit in Ashcroft was ruling on the ``harmful to 
minors'' standard, which is even more analytically rigorous than 
indecency because it applies all three parts of the Miller test (as 
modified for minors). The court's conclusions apply with even greater 
force to the indecency standard, given its lack of definitional 
embellishment. Moreover, the ``harmful to minors'' standard requires 
the government to demonstrate that material is ``virtually obscene'' 
and even then cannot impose restrictions that limit access by 
adults.88 The indecency standard, by sharp contrast, does 
not come close to providing this level of protection, thus magnifying 
the constitutional problems of the FCC's rules.
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    \88\ American Booksellers Ass'n, 484 U.S. at 394; accord American 
Booksellers v. Webb, 919 F.2d 1493, 1504-05 (11th Cir. 1990).
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3. The Indecency Standard May Restrict Material That Has Serious 
        Literary, Artistic, Political or Scientific Value
    Contrary to the Miller standard, the FCC has stated that the merit 
of a work is not a complete defense to an indecency complaint, but is 
only ``one of many variables that make up a work's `context.' 
''89 In this regard, Judge Patricia Wald has noted that `` 
`[i]ndecency' is not confined merely to material that borders on 
obscenity--`obscenity lite.' '' 90 Rather, the standard 
casts a larger net encompassing other, less offensive protected speech 
regardless of its merit. Thus, in many instances, ``the programming's 
very merit will be inseparable from its seminal `offensiveness.' '' 
91 The FCC has even acknowledged that, because serious merit 
does not save material from an indecency finding, there is a ``broad 
range of sexually-oriented material that has been or could be 
considered indecent'' that does ``not [include] obscene speech.'' 
92 Thus, the Commission has expressly declined to hold that 
``if a work has merit it is per se not indecent,'' and that material 
may be found indecent for broadcast even where the information is 
presented ``in the news'' and is presented ``in a serious, newsworthy 
manner.'' 93 In this regard, it is sobering to realize that 
in Gillett Communications v. Becker, a federal district court held that 
the videotape Abortion in America: The Real Story, transmitted as part 
of a political advertisement by a bona fide candidate for public 
office, was indecent.94
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    \89\ Infinity Broadcasting Corp., 3 FCC Rcd. 930, 932 (1987), aff'd 
in part and rev'd in part on other grounds sub nom. ACT I, 852 F.2d 
1332.
    \90\ Alliance for Community Media v. FCC, 56 F.3d at 130 (Wald, J., 
dissenting).
    \91\ Id.
    \92\ Enforcement of Prohibitions Against Broadcast Indecency in 18 
U.S.C.  1464, 5 FCC Rcd. 5297, 5300 (1990), rev'd on other grounds sub 
nom. ACT II, 932 F.2d 1504.
    \93\ Letter to Merrill Hansen, 6 FCC Rcd. 3689, 3689 (1990) 
(citation omitted). See also KLOL (FM), 8 FCC Rcd. 3228 (1993); WVIC-
FM, 6 FCC Rcd. 7484 (1991).
    \94\ Gillett Communications v. Becker, 807 F. Supp. 757 (N.D. Ga. 
1992), appeal dismissed mem., 5 F.3d 1500 (11th Cir. 1993).
---------------------------------------------------------------------------
    In striking down the CDA's indecency standard as applied to the 
Internet, the Reno Court found the absence of a ``societal value'' 
requirement ``particularly important.'' 95 It noted that 
requiring the inclusion of a work's merit ``allows appellate courts to 
impose some limitations and regularity on the definition by setting, as 
a matter of law, a national floor for socially redeeming value.'' 
96 No such requirement is contained in the indecency 
standard.97 As a result, the Court concluded that 
application of the indecency standard threatened to restrict 
``discussions of prison rape or safe sexual practices, artistic images 
that include nude subjects, and arguably the card catalogue of the 
Carnegie Library.'' 98 The district court in Reno similarly 
had expressed concern that the indecency standard restricts ``a broad 
range of material'' including ``contemporary films'' such as ``Leaving 
Las Vegas.'' 99
---------------------------------------------------------------------------
    \95\ 521 U.S. at 873.
    \96\ Id.
    \97\ E.g., Pacifica Found. Inc., 2 FCC Rcd. 2698 (1987) (case 
involving serious drama regarding homosexual relations in the post-AIDS 
era). Significantly, in that case, the FCC disregarded the artistic 
merit of the play, saying that its indecency finding was not affected 
by the fact that the material presented ``was excerpted from a dramatic 
performance that dealt with homosexual relations and Acquired Immune 
Deficiency Syndrome (AIDS)'' or that the excerpts came from a 
``critically acclaimed and long-running [play] in Los Angeles area 
theatres.'' Infinity Broadcasting Corp. of Pennsylvania, 3 FCC Rcd. at 
932; cf. ACLU v. Reno, 929 F. Supp. 824, 852-853 (E.D. Pa. 1996) 
(Sloviter, J.) (discussing the chilling effect of indecency standard to 
serious dramas such as the gay-themed play ``Angels in America'').
    \98\ 521 U.S. at 878.
    \99\ ACLU v. Reno, 929 F. Supp. 824, 855 (E.D. Pa. 1996) (Sloviter, 
J.).
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    The FCC has been baffled by such questions, as evidenced by its 
investigation for indecency of the BBC-produced, Peabody Award-winning 
mini-series, The Singing Detective. The critically-acclaimed program 
was aired by various public television stations between 1988 and 1990, 
and a year-long FCC investigation ensued after the program appeared on 
a KQED-TV in San Francisco in 1990. The Commission's review did not 
consider the full seven hours of the program, but instead focused on 
several short scenes that included brief glimpses of nudity and one 
scene in which a child witnessed a sexual encounter. The FCC never 
formally resolved the complaint, and simply let the matter fade away 
after putting the TV station through the trouble and significant 
expense of defending its actions for an extended period.100 
But the Commission's actions ensured that The Singing Detective would 
not be broadcast again in the United States. The episode demonstrates 
that, just as under the Hicklin rule, a lax standard can censor 
meritorious speech, and that a successful prosecution is not needed in 
order to suppress the work.101
---------------------------------------------------------------------------
    \100\ See Robert Corn-Revere, New Age Comstockery, 4 CommLaw 
Conspectus 173, 181-182 (1996); Marjorie Heins, Not in Front of the 
Children 119 (Hill & Wang: New York 2001).
    \101\ Compare Pacifica, 438 U.S. at 741 n.16 (even if Lady 
Chatterley's Lover, when taken as a whole, is not obscene, ``the 
utterance of such words or the depiction of such sexual activity on 
radio or TV would raise . . . public interest and section 1464 
questions'') (quoting En Banc Programming Inquiry, 44 F.C.C. 2303, 2307 
(1960)) with Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 
688-689 (1959) (invalidating, on First Amendment grounds, licensing 
restriction directed at film Lady Chatterley's Lover because it 
``portrays a relationship which is contrary to the moral standards, the 
religious precepts, and the legal code of [the] citizenry'').
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4. The Indecency Standard Lacks Strong Procedural Safeguards
    As a general matter, the First Amendment requires the government to 
use ``sensitive tools'' to ``separate legitimate from illegitimate 
speech.'' 102 Strict procedural requirements govern any 
administrative procedure that has the effect of denying or delaying the 
dissemination of speech to the public.103 In particular, the 
First Amendment commands that any delay be minimal, and that the 
speaker have access to prompt judicial review.104 Where 
ongoing government regulation of speech is involved, the government's 
obligation to provide due process is heightened.105 In every 
case where the government seeks to limit speech, the constitutional 
presumption runs against the government, which must justify the 
restriction.106
---------------------------------------------------------------------------
    \102\ Speiser v. Randall, 357, U.S. 513, 525 (1958).
    \103\ Freedman v. Maryland, 380 U.S. 51, 58-61 (1965).
    \104\ United States v. Thirty-Seven Photographs, 402 U.S. 363 
(1971).
    \105\ City of Lakewood, 486 U.S. at 757; Houston v. Hill, 482 U.S. 
451 (1987).
    \106\ Playboy Entertainment Group, 529 U.S. at 816 (``When the 
Government restricts speech, the Government bears the burden of proving 
the constitutionality of its actions.''); Interactive Digital Software 
Ass'n v. St. Louis County, 329 F.3d 954, 959 (8th Cir. 2003).
---------------------------------------------------------------------------
    The FCC's regime of enforcing the indecency rules is inconsistent 
with these basic principles. For example, the Commission has begun to 
issue letters of inquiry that indicate ``a complaint has been filed'' 
and demand detailed responses from licensees but do not indicate the 
identity of the complainants.107 Indeed, the Commission does 
not require its anonymous complainants to submit a tape or transcript 
of allegedly offending broadcasts, and has indicated that when a 
complaint is received it is the licensee's obligation to prove that the 
transmission in question was not indecent. As the Chief of the FCC's 
Enforcement Bureau said at a conference of the National Association of 
Broadcasters' state leadership, ``[i]f the station can't refute 
information in the complaint, we'll assume the complainant got it 
right.'' 108 But such an approach ``raises serious 
constitutional difficulties'' when the government seeks ``to impose on 
[a speaker] the burden of proving his speech is not unlawful.'' 
109
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    \107\ The Commission's decision to act on anonymous complaints is 
puzzling since current rules provide that informal complaints should be 
routinely available to the public. See 47 C.F.R.  0.453(a)(2)(ii)(F), 
0.453(a)(2)(ii)(H).
    \108\ See Bill McConnell, New Rules for Risque Business, 
Broadcasting & Cable, March 4, 2002.
    \109\ Free Speech Coalition, 122 S. Ct. at 1404; ACLU v. Ashcroft, 
322 F.3d at 260.
---------------------------------------------------------------------------
    This problem is exacerbated by the erosion of the Commission's 
requirement that complainants provide a tape or transcript of the 
offending broadcast. As recently as 2001 the FCC stressed that it 
needed ``as full a record as possible to evaluate allegations of 
indecent programming'' because of ``the sensitive nature of these cases 
and the critical role of context.'' 110 It explained that it 
could take action only in response to ``documented complaints,'' and 
that the Commission's historic practice was to require ``a full or 
partial tape or transcript or significant excerpts of the program.'' 
111 More recently, however, the FCC has moved away from this 
requirement, and some Commissioners have suggested that it be dispensed 
with entirely. In one case, the Enforcement Bureau acknowledged the 
lack of ``a tape, transcript or significant excerpt'' but nevertheless 
concluded that ``the excerpts referenced in complainant's letters . . . 
were `significant enough' '' for it to consider ``the context of the 
material.'' 112 This practice begs the question of how the 
Commission can evaluate context in the absence of a tape or significant 
excerpt, and it raises the more constitutionally troubling issue of 
shifting the burden of proof. To ``cure'' this problem, the Commission 
has begun to require broadcasters to supply tapes in response to 
letters of inquiry (that were triggered by complaints). Some of the 
complaints are years old and are unsubstantiated, but the Commission 
has asked licensees to provide information in order to supply the 
necessary context.113 Some FCC Commissioners have even 
suggested requiring licensees to submit tapes of their broadcasts in 
response to any indecency complaint. But whether or not tapes are 
required as a matter of routine or merely to bolster otherwise 
deficient complaints, the Commission has ventured into dangerous 
territory. The D.C. Circuit has held that requiring licensees to tape 
programs to facilitate official oversight ``presents the risk of direct 
governmental interference in program content'' and is constitutionally 
infirm.114
---------------------------------------------------------------------------
    \110\ Industry Guidance, 16 FCC Rcd. at 8015.
    \111\ Id. at 8015. In addition to a tape or transcript, the 
Commission requires complaints to specify the date and time of the 
broadcast and the call sign of the station.
    \112\ In the Matter of Emmis Radio License Corp., 17 FCC Rcd. 
18,343, 18,344 (Enforcement Bureau 2002) (``[a]bsent any contrary 
evidence from [the licensee], we determined that the record was 
adequate enough for us to determine that the station willfully and 
repeatedly aired indecent material''). See also Letter from Charles W. 
Kelley, Chief, Investigations and Hearings Division, Enforcement Bureau 
to Mindy Pierce, EB-01-IH-0331/GDJ (Feb. 12, 2002) (``even an inexact 
transcript may be sufficient to meet procedural requirements'').
    \113\ In some cases the Commission staff has asked for tapes that 
include a ``buffer zone'' of up to an hour on each side of the program 
that was the subject of the complaint. Such a request bears no 
relationship to the context of a particular program and amounts to 
nothing more than a fishing expedition.
    \114\ Community-Service Broadcasting of Mid-America v. FCC, 593 
F.2d 1102, 1110, 1116 (D.C. Cir. 1978) (en banc) (invalidating a 
program taping requirement imposed on public broadcasters where the 
purpose of the requirement was to increase government review of 
controversial programming content).
---------------------------------------------------------------------------
    Finally, once the Commission, in its sole discretion, decides that 
a particular broadcast is indecent, the process to review that decision 
is anything but prompt. For the licensee, challenging an indecency 
determination generally requires refusing to pay a proposed forfeiture 
and enduring an enforcement proceeding before it may raise a defense in 
court, assuming the government initiates a collection 
action.115 During this time, the Commission may withhold its 
approval of other matters the licensee has pending before the agency. 
For this reason, no licensee has been able to hold out long enough to 
test the validity of an FCC indecency determination.116 From 
the perspective of the artist whose work may be effectively banned from 
the air by an FCC decision (including a decision made on delegated 
authority by a lower level official), the government's position is that 
there is no right to seek judicial review at all.117
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    \115\ See Industry Guidance, 16 FCC Rcd. at 8016.
    \116\ ACT IV, 59 F.3d at 1254.
    \117\ Sarah Jones v. FCC, 30 Media L. Rep. 2534 (S.D.N.Y. Sept. 4, 
2002), vacated as moot, Docket No. 02-6248 (S.D.N.Y. March 12, 
2003)(not reported in F. Supp. 2d).
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C. Judicial Scrutiny of the Indecency Standard in Other Contexts 
        Underscores its Constitutional Problems
    Recent decisions of the Supreme Court and of lower courts confirm 
that the indecency standard cannot survive rigorous constitutional 
review. Although these decisions did not examine the indecency regime 
in the context of broadcasting, their analysis undermines the key 
premises of the same standard the FCC historically has used to enforce 
its broadcast rules. These decisions are particularly instructive, 
since no majority of the Supreme Court ever endorsed the broad 
application of the Pacifica standard, and lower courts pointedly 
refrained from analyzing the logic of the test. Yet when the Supreme 
Court finally deconstructed the language of the indecency rule, it held 
that it was unconstitutional for all of the reasons identified above.
    Reno v. ACLU represents the first time the Supreme Court subjected 
the indecency test to rigorous First Amendment review and in doing so 
it found the standard to be seriously deficient. Writing for a near-
unanimous Court, Justice Stevens concluded that the indecency 
restrictions of the Communications Decency Act (``CDA'') were invalid 
because of vagueness and overbreadth.118 This finding is 
especially meaningful since Justice Stevens also wrote the Pacifica 
decision, and he began his analysis by reaffirming the constitutional 
baseline: that the governmental interest in protecting children from 
harmful materials ``does not justify an unnecessarily broad suppression 
of speech addressed to adults.'' 119 Reaffirming the Court's 
earlier rulings in Butler, and Bolger, the Court emphasized that the 
government may not reduce the adult population to only what is fit for 
children.120
---------------------------------------------------------------------------
    \118\ 521 U.S. at 875.
    \119\ Id. at 870-874, 881-882. Justice O'Connor, joined by Chief 
Justice Rehnquist, wrote an opinion concurring in part and dissenting 
in part on other grounds, but the Court was unanimous in holding that 
the CDA provisions requiring the screening of ``indecent'' displays 
from minors ``cannot pass muster.'' Id. at 886.
    \120\ Id. at 875 & n.40.
---------------------------------------------------------------------------
    Since then, virtually every court that has ruled on similar laws 
has held that they are unconstitutional.121 These cases 
related primarily to state attempts to regulate ``harmful to minors'' 
material. But as the Third Circuit found most recently in reviewing the 
Child Online Protection Act, successor to the CDA, the focus on minors 
(among other things) rendered the law ambiguous. ``The chilling effect 
caused by this vagueness,'' the court concluded, ``offends the 
Constitution.'' 122 These cases struck down or enjoined laws 
that restricted online communications, not broadcasting, but the logic 
of the decisions is not affected by the medium of transmission. A vague 
standard does not become more precise--or more consistent with 
constitutional requirements--because the law is applied to one 
technology and not another. The question, then, is whether First 
Amendment protections for broadcasting are so attenuated to permit the 
government to apply a standard that the courts have now found to be 
patently defective.123 The primary rationale for such 
different treatment, cited both by the Supreme Court and now touted by 
the Commission, is that more intensive content regulation has been 
permitted for broadcasting historically.124 The Court in 
Pacifica described the ``pervasive presence'' of broadcasting and 
relied on the fact that broadcast licensees have been barred by federal 
law from transmitting ``obscene, indecent or profane language'' ever 
since the Radio Act of 1927.125 The Commission continues to 
point to ``special justifications'' for the different treatment, 
including ``the history of extensive government regulation of the 
broadcast medium,'' spectrum scarcity, and the ``invasive nature'' of 
broadcasting. 126
---------------------------------------------------------------------------
    \121\ ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); Cyberspace 
Communications, Inc. v. Engler, 238 F.3d 420 (6th Cir. 2000) (table); 
ACLU v. Napolitano, Civ. 00-505 TUC ACM (D. Ariz. Feb. 21, 2002); 
American Bookseller's Foundation for Free Expression v. Dean, 202 F. 
Supp.2d 300 (D. Vt. 2002); Bookfriends, Inc. v. Taft, 223 F. Supp.2d 
932 (S.D. Ohio 2002); PSINet v. Chapman, 167 F. Supp.2d 878 (W.D. Va. 
2000), question certified, 317 F.3d 413 (4th Cir. 2003).
    \122\ ACLU v. Ashcroft, 322 F.3d at 269 n.37.
    \123\ See Pacifica, 438 U.S. at 759-760 (Powell, J., concurring) 
(``This is not to say . . . that the Commission has an unrestricted 
license to decide what speech, protected in other media, may be banned 
from the airwaves in order to protect unwilling adults from momentary 
exposure to it in their homes.'').
    \124\ Reno, 521 U.S. at 867 (noting that the FCC ``had been 
regulating radio stations for decades'').
    \125\ Pacifica, 438 U.S. at 735-738.
    \126\ See Industry Guidance, 16 FCC Rcd. at 8000 & n.9.
---------------------------------------------------------------------------
    Given the changes in the media landscape most recently catalogued 
by the FCC in various proceedings, the principal remaining ``special 
justification'' is the history of content regulation by the FCC. But 
this is a tenuous basis upon which to perpetuate a constitutionally 
deficient standard. For the FCC to argue that it can regulate 
broadcasting content more restrictively now because it did so in the 
past does not distinguish broadcasting from other media. Indeed, as 
noted earlier, the government restricted books under the Hicklin rule 
in a way that is almost identical to the FCC's current regulation of 
radio and television. Similarly, when the FCC was first chartered, 
state and local governments subjected films to prior review and 
censorship.127 But the law changed, and the last such cinema 
review board in the United States was finally dismantled a decade 
ago.128
---------------------------------------------------------------------------
    \127\ See, e.g., Times Film Corp. v. City of Chicago, 365 U.S. 43, 
69-78 (1961) (Warren, C.J. dissenting) (providing detailed examples of 
film censorship and noting the ``astonishing'' extent ``to which 
censorship has recently been used in this country'').
    \128\ Freedman 380 U.S. at 58-61; Elizabeth Kastor, It's a Wrap: 
Dallas Kills Film Board, Washington Post, Aug. 13, 1993 p. D1.
---------------------------------------------------------------------------
    Accordingly, it is difficult for the Commission to argue that it 
may continue to rely on First Amendment law as it applied to 
broadcasting in 1927 or 1934 because Congress authorized it to regulate 
``indecent'' or ``profane'' broadcasts in those years. A brief look at 
the Commission's actions during that period shows why this is so. In 
late 1937, for example, hundreds of radio listeners complained about an 
episode of NBC's ``Charlie McCarthy'' program in which the puppet 
Charlie McCarthy and Mae West portrayed the title characters in a 
sketch entitled ``Adam and Eve.'' The FCC investigated the matter and 
found nothing in the script objectionable, but some of Mae West's 
inflections during the broadcast were found to be ``suggestive.'' On 
this basis the FCC admonished NBC and its affiliates that the program 
was ``vulgar, immoral or of such other character as may be offensive to 
the great mass of right-thinking, clean-minded American citizens.'' 
129 In another early case, the Ninth Circuit upheld the 
conviction of an individual for violating Section 29 of the Federal 
Radio Act which prohibited the utterance of ``any obscene, indecent, or 
profane language by means of radio communication.'' Although the court 
agreed that the speaker did not make any statements that could be 
considered obscene or indecent (even though it applied the Hicklin 
rule), it nevertheless concluded that the broadcast was ``profane'' 
because the defendant ``referred to an individual as `damned,' '' that 
he ``used the expression `By God' irreverently,'' and ``announced his 
intention to call down the curse of God upon certain individuals.'' 
130
---------------------------------------------------------------------------
    \129\ See FCC Issues Rebuke for Mae West Skit, Broadcasting, Jan. 
15, 1938, p. 13.
    \130\ Duncan v. United States, 48 F.2d 128, 134 (9th Cir.), cert. 
denied, 283 U.S. 863 (1931). The FCC has relied on the Duncan case to 
support its indecency policies as recently as 1970. See In re WUHY-FM, 
24 F.C.C.2d 408, 412-413 (1970). In a 1962 case, the FCC found that a 
D.J.'s banter that included nicknames for local towns (``Ann's 
Drawers'' for Andrews; ``Bloomersville'' for Bloomville) and his use of 
the expressions such as ``let it all hang out'' was ``obscene, coarse, 
vulgar, and suggestive material susceptible of indecent double 
meaning.'' Palmetto Broadcasting Co., 33 FCC 250, 251 (1962), aff'd on 
other grounds, Robinson v. FCC, 334 F.2d 534 (D.C. Cir. 1964). For 
additional examples, see Heins, supra note __ at 89-97.
---------------------------------------------------------------------------
    Such decisions obviously are unsupportable today, yet they 
represent ``the history of extensive government regulation of the 
broadcast medium'' upon which the Commission relies as a ``special 
justification'' supporting its indecency policies.131 While 
some may argue that the Commission's notion of what is ``patently 
offensive'' or ``indecent'' has been updated since the 1930s, this does 
not answer the question presented by the indecency standard's emphasis 
on ``contemporary'' community standards. The standard was not frozen in 
1978, when the Supreme Court decided Pacifica, and the Commission has a 
constitutional obligation to determine what type of programming current 
audiences have come to expect in 2004. In whatever fashion the 
Commission chooses to address this issue, it is clear that the First 
Amendment does not countenance the notion of individual Commissioners 
using their personal preferences to define community 
standards.132
---------------------------------------------------------------------------
    \131\ See Industry Guidance, 16 FCC Rcd. at 8000 & n.9.
    \132\ HBO, Inc. v. Wilkinson, 531 F. Supp. 987, 993 n.9 (D. Utah 
1982) (striking down indecency standard for cable television because it 
established ``a standard that permitted a judge to get out of the 
formula any value judgment that he chose to put in''). See also Jones 
v. Wilkinson, 800 F.2d 989 (10th Cir. 1986), aff'd mem. 480 U.S. 926 
(1987).
---------------------------------------------------------------------------
 FCC ENFORCEMENT EXPERIENCE CONFIRMS THE IMPRECISION OF THE INDECENCY 
                                STANDARD

    FCC decisions under the indecency standard provide scant guidance 
either for those who must enforce or comply with the law. Since there 
is no body of court decisions interpreting or applying the indecency 
standard in particular cases, licensees must look to the Commission for 
guidance. But the FCC's rulings provide no real assistance, because 
most are unavailable, thus constituting a body of secret 
law.133 The vast majority of indecency decisions are 
unpublished, informal letter rulings that are stored in individual 
complaint files at the FCC. In this regard, the dismissals would be 
most helpful to understanding the Commission's application of the 
standard, but these decisions, with a few exceptions, are not made 
public. Even where the Commission reaches the merits of an indecency 
complaint, its decision typically consists of conclusory statements 
regarding its determination that a particular broadcast is 
indecent.134
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    \133\ As Commissioner Copps has noted, of the nearly 500 complaints 
received by the Enforcement Bureau in 2002, ``83% were either dismissed 
or denied, one company paid a fine, and the rest are pending or 
otherwise in regulatory limbo.'' Remarks of Commissioner Michael J. 
Copps to the NATPE 2003 Family Programming Forum (January 22, 2003).
    \134\ After a comprehensive analysis of the FCC's indecency 
rulings, Professor Lili Levy concluded that ``the Commission applies 
its policy conclusorily, acontextually, and even inconsistently, in an 
ambivalent practice suggesting that it simply knows indecency `when it 
sees it.' '' Levy, supra note __ at p.175. See generally id. at pp. 
101-112 (discussing cases).
---------------------------------------------------------------------------
    Seeking to address this problem (and finally to respond to its 
obligation in the Evergreen Media settlement agreement), the Commission 
in April 2001 issued a Policy Statement purporting to clarify its 
criteria governing enforcement of the indecency standard.135 
It noted that there are two fundamental determinations that must be 
made: (1) whether the material depicts or describes sexual or excretory 
organs or activities, and (2) whether the material is ``patently 
offensive'' as measured by a national standard for the broadcast 
medium. The Policy Statement set forth a number of examples of 
enforcement actions and sought to analyze their outcomes based on the 
degree of explicitness, whether the material ``dwells'' on sexual 
matters, and whether the material is ``pandering.'' 136 
However, the Commission pointed out that such ``contextual 
determinations are necessarily highly fact-specific, making it 
difficult to catalog comprehensively all of the possible contextual 
factors that might exacerbate or mitigate the patent offensiveness of 
particular material.'' In other words, because each case is decided 
based on its individual facts, the Commission could not articulate 
specifically what factors will distinguish one case from another.
---------------------------------------------------------------------------
    \135\ Industry Guidance, 16 FCC Rcd. at 7999.
    \136\ Id. at 8003.
---------------------------------------------------------------------------
    The FCC's inability to describe how the factors it uses would apply 
in a given case highlighted the absence of precision in the indecency 
standard itself. The root problem, as the Reno Court recognized, is 
with the lack of judicial rigor in the definitions of ``indecency'' and 
``patent offensiveness.'' The indecency standard gives the FCC 
excessive discretion because it is not limited by requirements that the 
affected speech be specifically defined by law, or lack serious merit, 
or be considered as a whole. 137 These problems were 
graphically illustrated by two forfeiture orders that were issued 
within weeks of the Industry Guidance.
---------------------------------------------------------------------------
    \137\ Reno, 521 U.S. at 872-876.
---------------------------------------------------------------------------
    In the first of these decisions, the Enforcement Bureau issued a 
$7,000 Notice of Apparent Liability to noncommercial radio station 
KBOO-FM for the broadcast of a rap song entitled ``Your Revolution.'' 
138-- The song, written and performed by award-winning poet 
and performance artist Sarah Jones, is a loose reworking of Gil Scott-
Heron's classic poem, ``The Revolution Will Not Be Televised.'' 
According to Jones, `` `Your Revolution' was written as a response to 
music on mainstream radio which often treats women as sex objects and 
play things.'' The song has been performed for junior high and high 
school students in educational programs coordinated through the New 
York City Board of Education. Nevertheless, the Bureau concluded that 
``Your Revolution'' is indecent because it contains ``unmistakably 
patently offensive sexual references.''
---------------------------------------------------------------------------
    \138\ In the Matter of The KBOO Foundation, 16 FCC Rcd. 10731 
(Enforcement Bureau 2001) (issuing $7,000 forfeture for broadcast of 
``Your Revolution'').
---------------------------------------------------------------------------
    Although the policy statement described the context of a work as 
``critically important,'' the Bureau dismissed KBOO's arguments that 
the sexual references in ``Your Revolution'' must be evaluated as 
contemporary social commentary. It pointed out that ``the Commission 
has rejected an approach to indecency that would hold that material is 
not per se indecent if the material has merit,'' and concluded that the 
FCC ``previously has found similar material to be indecent, and we see 
no basis for finding otherwise in this case.'' Despite this confident 
assessment, the Enforcement Bureau reversed itself nearly eighteen 
months later, in February 2003.139 Describing the broadcast 
as ``a very close case,'' the Bureau found that ``on balance and in 
context, the sexual descriptions in the song are not sufficiently 
graphic to warrant sanction.'' It noted that Sarah Jones has been asked 
to perform ``Your Revolution''' at high school assemblies and concluded 
that the song did not violate contemporary community standards for the 
broadcast medium.
---------------------------------------------------------------------------
    \139\ In the Matter of The KBOO Foundation, 18 FCC Rcd. 2472 
(Enforcement Bureau, 2003).
---------------------------------------------------------------------------
    Shortly after the initial KBOO forfeiture was released, the 
Enforcement Bureau issued another $7,000 Notice of Apparent Liability 
for the broadcast of a rap song.140 This time, the notice 
was issued to a Pueblo, Colorado commercial station for repeated 
broadcasts of the ``radio edit'' of the Eminem song ``The Real Slim 
Shady.'' Although the Bureau acknowledged that the station played a 
version of the song ``that omitted certain offensive language through 
the use of a muting device or overdubbed sound effect,'' it found that 
``the licensee failed to purge a number of indecent references'' and 
that even the edited version of the song ``contains unmistakable 
offensive sexual references.'' 141
---------------------------------------------------------------------------
    \140\ In the Matter of Citadel Broadcasting Company, 16 FCC Rcd. 
11,839 (Enforcement Bureau, 2001).
    \141\ The decision brings to mind a recent parody of FCC 
enforcement policies in The Onion:
    Frustrated FCC Unable to Stop Use of Word ``Friggin''
    Washington, DC--The government agency responsible for enforcing 
broadcast-decency laws can do nothing to stop rampant use of the word 
``friggin,'' Federal Communications Commission Chairman Michael K. 
Powell said Monday. ``Everyone knows what it really means when someone 
uses that word,'' Powell said. ``Still, we hear it all over the morning 
radio shows, all the time. Oooh, it burns me up. Those DJs aren't 
fooling anyone, certainly not us here at the FCC. But sadly, our hands 
are tied.'' Powell suggested that users of the non-profanity just grow 
up. Latest Headlines, The Onion, October 8, 2003.
---------------------------------------------------------------------------
    On reconsideration, however, the Bureau found that it had been 
mistaken about its previous ``unmistakable'' conclusions. It 
characterized the sexual references in the radio edit of ``The Real 
Slim Shady'' as ``oblique,'' and not ``expressed in terms sufficiently 
explicit or graphic enough to be found patently offensive.'' As to the 
context of the song, the Bureau concluded that the edited version did 
``not appear to pander to, or to be used to titillate or shock its 
audience.'' 142
---------------------------------------------------------------------------
    \142\ In the Matter of Citadel Broadcasting Company, 17 FCC Rcd. 
483 (Enforcement Bureau, 2002).
---------------------------------------------------------------------------
    These decisions show that the FCC is sometimes willing to correct 
its mistakes--which is good--but they also show that the agency was 
unable to apply its own standard even as it was attempting to provide 
industry guidance. The initial rulings effectively banned the material 
in question from the air, except for radio stations that might have 
been willing to risk the transmission of material already branded by 
the government as indecent. 143 Sarah Jones' ``Your 
Revolution'' was kept off the air for almost two years, while the radio 
edit of ``The Real Slim Shady'' was banned for over six months.
---------------------------------------------------------------------------
    \143\ See KGB, Inc., 13 FCC Rcd. 16396 (1998) (``higher degree of 
culpability for the subsequent broadcast of material previously 
determined by the Commission to be indecent''); Industry Guidance, 16 
FCC Rcd. at 8016 (same).
---------------------------------------------------------------------------
    In cases such as this, the fault lies not so much in the agency as 
in the standard it has been called upon to enforce. Indeed, the initial 
indecency findings regarding Sarah Jones and Eminem were foreshadowed 
by Justice Brennan's dissent in Pacifica where he criticized the 
plurality for its ``depressing inability to appreciate that in our land 
of cultural pluralism, there are many who think, act, and talk 
differently from the Members of this Court, and who do not share their 
fragile sensibilities.'' He added that ``[i]t is only an acute 
ethnocentric myopia that enables the Court to approve the censorship of 
communications solely because of the words they contain.'' 
144 The FCC illustrates Justice Brennan's point only too 
well, where five political appointees have been tasked with defining 
``contemporary community standards for the broadcast medium.'' 
Experience shows that the Commission is ill-equipped to do 
so.145
---------------------------------------------------------------------------
    \144\ Pacifica, 438 U.S. at 775 (Brennan, J., dissenting).
    \145\ See WUHY-FM, 24 F.C.C.2d at 423 (Dissenting statement of 
Commissioner Johnson) (``What the Commission decides, after all, is 
that the swear words of the lily-white middle class may be broadcast, 
but that those of the young, the poor, or the blacks may not.''); Levy, 
supra note 17 (indecency restrictions have led to ``class- and race-
based censorship''). See generally id. pp. 70-85.
---------------------------------------------------------------------------
    Administrative procedures that the Commission believed would 
mitigate the inherent uncertainty of the indecency standard have proven 
to be an utter failure. The FCC in the past has asserted that, if 
individual rulings fail to ``remove uncertainty'' in this ``complicated 
area of law,'' it may use its power to issue declaratory rulings to 
clarify the indecency standard. 146 In practice, however, 
the Commission has never granted such a request.
---------------------------------------------------------------------------
    \146\ See New Indecency Enforcement Standards, 2 FCC Rcd. at 2727.
---------------------------------------------------------------------------
    When Pacifica Radio sought to broadcast its annual Bloomsday 
reading from James Joyce's Ulysses, the Commission declined to issue a 
declaratory ruling that the material was not indecent despite a 60-
year-old judicial precedent supporting the literary value of the book. 
147 The FCC's refusal to issue an opinion on the literary 
merits of Ulysses (in the same year it promised to ``remove 
uncertainty'' through declaratory rulings) is particularly telling. As 
Judge Sloviter observed in holding that the CDA's indecency standard 
was invalid, the government's promise that it will enforce the 
indecency standard ``in a reasonable fashion . . . would require a 
broad trust indeed from a generation of judges not far removed from the 
attacks on James Joyce's Ulysses as obscene.'' 148
---------------------------------------------------------------------------
    \147\ William J. Byrnes, Esq., 63 R.R.2d 216 (Mass Media Bur. 
1987). See United States v. One Book Entitled Ulysses, 72 F.2d 705 (2d 
Cir. 1934).
    \148\ ACLU v. Reno, 929 F.Supp. at 857.
---------------------------------------------------------------------------
    The Commission has refused to clarify its indecency standard even 
in the face of judicial requests for guidance. In Playboy, for example, 
the district court asked whether there are ``any FCC letter or advisory 
opinions that are available to assist this Court, the plaintiff, or 
other channels . . . in construing the permissible scope of 
regulation.'' 149 Notwithstanding the district court's 
prompting, the FCC rejected Playboy's request for a declaratory ruling 
to clarify the status of a safe sex documentary that was to premiere on 
World AIDS Day in December 1997, anlong with several other programs. In 
a one-page letter denying the request, issued long after World AIDS Day 
came and went, the Chief of the Cable Services Bureau wrote that 
``declaratory rulings related to programming issues must be dealt with 
cautiously'' and ``have the potential to be viewed as prior 
restraints.'' 150
---------------------------------------------------------------------------
    \149\ Playboy Entertainment Group, Inc. v. United States, Civil 
Action No. 96-94-JJF (D. Del. Oct. 31, 1997), slip op. at n.6.
    \150\ See Letter from Meredith J. Jones, Chief, Cable Services 
Bureau to Robert Corn-Revere, Counsel for Playboy Entertainment Group, 
Inc. (January 30, 1998).
---------------------------------------------------------------------------
    Just as the declaratory ruling process was no help to Playboy, it 
failed to provide any specific relief for Sarah Jones, whose work was 
banned from the air for eighteen months by the Bureau's forfeiture 
order. Jones initially filed a declaratory judgment action in federal 
district court seeking a determination that the work is not indecent 
and that the FCC's decision violated her rights under the First and 
Fifth Amendments. However, the court dismissed the action, finding that 
the Bureau decision was not ``final agency action'' and that any appeal 
from a final action must be brought in the court of appeals. The court 
suggested that Jones should ask the FCC to issue a declaratory ruling 
if she was concerned about delay in obtaining a final 
order.151 On October 2, 2002, Jones filed such a declaratory 
ruling request, but it was dismissed as moot when the Bureau reversed 
its initial order in February 2003.
---------------------------------------------------------------------------
    \151\ Sarah Jones v. FCC, 30 Media L. Rep. 2534 (S.D.N.Y. Sept. 4, 
2002), vacated as moot, Docket No. 02-6248 (S.D.N.Y. March 12, 
2003)(not reported in F. Supp. 2d).
---------------------------------------------------------------------------
    Although Jones ultimately got the substantive ruling she sought as 
a result of KBOO's reconsideration request, the FCC's declaratory 
ruling procedures did nothing to expedite the process or clarify the 
law. Even with the correct (albeit grossly delayed) resolution, the 
Bureau's description of the matter as ``a very close case'' ensures 
that artists and broadcasters will derive no meaningful guidance from 
the reconsideration decision, other than in its application to the poem 
``Your Revolution.'' 152 If the Commission still believes 
that the Sarah Jones matter was ``close,'' then the only thing that is 
clear about this area of law is the FCC's inability to evaluate 
artistic merit.
---------------------------------------------------------------------------
    \152\ KBOO Foundation, 18 FCC Rcd. 2472.
---------------------------------------------------------------------------
 VI. THERE ARE NO QUICK FIXES THAT CAN CURE THE CONSTITUTIONAL DILEMMA 
                    POSED BY THE INDECENCY STANDARD

    Given the inherent imprecision of the indecency standard it is 
superficially tempting to remove uncertainty simply by specifying which 
words are forbidden on radio and television. The FCC followed this 
approach between 1978 and 1987 by focusing enforcement on the seven 
words contained in the George Carlin routine that led to 
Pacifica.153 However, the Commission concluded that the 
approach was unsatisfactory, and in mid-1987 announced that it would 
apply the indecency standard generically. Now, after 16 years of 
experience with the generic standard, people both inside and outside 
the FCC are advocating once again the adoption of specific 
prohibitions. As noted earlier, Chairman Powell reportedly has called 
for a per se ban on profanity between 6 a.m. and 10 p.m. (with a 
possible exception for political speech),154 and Congressman 
Ose has introduced a new list of prohibited words.155
---------------------------------------------------------------------------
    \153\ The seven words are ``sh*t, p*ss, f**k, c*nt, c**ksucker, 
motherf**ker, and t*ts.'' Pacifica, 438 U.S. at 751 (Appendix to 
opinion of the Court).
    \154\ Ahrens, supra note 5.
    \155\ H.R. 3687 would impose a categorical ban on the words `` 
`sh*t', `pi*s', `f**k', `cu*t', `a**hole', and the phrases `` `c**k 
sucker', `mother f**ker', and `a** hole.' '' It inexplicably drops the 
word ``t*ts'' from the list set forth in Pacifica and adds the word 
``a**hole'' twice.
---------------------------------------------------------------------------
    Such a per se approach is unlikely to remove uncertainty in the way 
its proponents hope, and would raise a host of new constitutional 
questions. Currently, the indecency standard seeks to evaluate the 
context in which words are used as a diluted proxy for the obscenity 
test's ``serious merit'' prong. Removing this factor from the analysis 
would mean that the listed words are considered indecent regardless of 
the context, so long as they are broadcast between 6 a.m. and 10 p.m. A 
per se approach would be easier to apply than the current indecency 
standard (at least initially), but would impose significant penalties 
on speech that unquestionably is protected by the First Amendment. For 
example, such a rule would impose significant penalties on any 
broadcaster who permitted readings from certain portions of the 
Bible.156
---------------------------------------------------------------------------
    \156\ See, e.g., I Samuel 25:22 (``So and more also do God unto the 
enemies of David, if I leave of all that pertain to him by the morning 
light any that p*sseth against the wall.''); II Kings 18:27 (``hath he 
not sent me to the men which sit on the wall, that they may eat their 
own dung, and drink their own p*ss with you?''); Isaiah 36:12 (same). 
Holy Bible (King James Version) (emphasis in original).
---------------------------------------------------------------------------
    It would also impose sanctions on broadcasters that transmitted one 
of the forbidden words during a newscast, or in the presentation of 
classic literature. The FCC has faced such questions in the past:

 In 1991 the Commission dismissed an indecency complaint against 
        National Public Radio for a newscast which included an except 
        of a wiretap from the trial of mob boss John Gotti. The words 
        ``f**k'' or ``f**king' were repeated ten times in a 30-second 
        segment. Nevertheless, the Commission found that the 
        ``surrounding circumstances persuade us that the use of 
        expletives during the Gotti segment does not meet our 
        definition of broadcast indecency.'' 157
---------------------------------------------------------------------------
    \157\ Letter to Peter Branton, 6 FCC Rcd. 610, 611 (1991) petition 
for rev. dismissed, 993 F.2d 906 (D.C. Cir. 1993).
---------------------------------------------------------------------------
 When Pacifica radio sought a declaratory ruling permitting it to 
        broadcast annual Bloomsday reading from James Joyce's Ulysses, 
        the Commission declined to give ``official'' approval. But it 
        noted that ``the Commission specifically declined to define 
        indecency by referring to a list of particular words,'' and 
        stressed ``the fact that Pacifica's petition recited passages 
        containing some of the same words that were involved in the 
        1978 and 1987 Pacifica rulings is not necessarily 
        dispositive.'' 158
---------------------------------------------------------------------------
    \158\ William J. Byrnes, Esq., 63 R.R.2d 216. The Bureau noted that 
Pacifica ``should be able to make an informed decision with respect to 
the proposed broadcast, and helpfully cited the district court opinion 
in United States v. One Book Entitled Ulysses, 5 F. Supp. 182 (S.D.N.Y. 
1933): ``although [the book] contains . . . many words considered 
dirty, I have not found anything that I consider to be dirt for dirt's 
sake.''
---------------------------------------------------------------------------
A per se indecency rule would preclude the FCC from allowing this type 
of editorial discretion in the future. Such an inflexible rule would 
thus invite close judicial scrutiny for restricting too much 
expression, including speech that has serious literary, artistic, or 
scientific merit.
    Perhaps for that reason, Chairman Powell reportedly has suggested a 
possible exception to a per se rule for ``political'' speech. However, 
from a constitutional standpoint, it is difficult to justify such a 
carve-out without also including news, commentary, literature, or art. 
Moreover, assuming such a technical limitation is possible, it is 
difficult to predict how it would provide the type of limits that its 
proponents presumably intend. For example, if U-2's Bono had made a 
political statement during the Golden Globe presentation (e.g., 
``thanks for the trophy, and, by the way, f**k the war in Iraq''), the 
Commission would face the same interpretive problem that currently 
exists, given the weight of precedent in this area. 159 In 
short, there are no easy answers in this area, whether one proposes a 
straight per se indecency rule, or one with one or more exceptions. 
Either way, Congress and the FCC will have the task of drawing and 
defending a line between speech that is protected and expression that 
can be punished.
---------------------------------------------------------------------------
    \159\ E.g., Cohen v. California, 403 U.S. 15, 25 (1971) (political 
slogan ``f**k the draft'' is protected under the First Amendment). This 
was just one of a series of decisions in which the Supreme Court held 
that the use of four-letter words in a variety of political contexts is 
constitutionally protected. E.g., Papish v. Board of Curators of the 
University of Missouri, 410 U.S. 667, 670 (1973) (university 
newspaper); Kois v. Wisconsin, 408 U.S. 229, 231-232 (1972) (``sex 
poem'' in underground newspaper); Cason v. City of Columbus, 409 U.S. 
1053 (1972); Rosenfeld v. New Jersey, 408 U.S. 901 (1972) (school board 
meeting); Lewis v. City of New Orleans, 408 U.S. 913 (1972) 
(confrontation with police); Brown v. Oklahoma, 408 U.S. 914 (1972) 
(political rally).
---------------------------------------------------------------------------
                               CONCLUSION

    Congress and the FCC currently are considering an array of 
proposals to increase the level of enforcement of the FCC's broadcast 
indecency rules and to apply the standard more strictly. However, it 
has been 25 years since the Supreme Court considered the First 
Amendment implications of indecency enforcement in the context of 
broadcasting, and much has changed during that time. Any move to 
reaffirm the existing rules or to make them more stingent must be 
accompanied by a comprehensive review of the rules' constitutionality.
    The law of indecency is the direct descendent of the Hicklin rule--
a legal doctrine born during the reign of Queen Victoria. Imported to 
America during the age of Anthony Comstock in the Nineteenth Century, 
it governed obscenity law until the First Amendment was brought to bear 
over half a century later. Under its lax standards, courts focused 
primarily on the potential impact of books on children, with the 
predictable result that literary classics were prosecuted and banned. 
This doctrine is unknown in American jurisprudence today but for one 
area: the FCC's broadcast indecency rules. Although courts and the 
Commission routinely state that indecent speech--unlike obscenity--is 
constitutionally protected, the standard the government employs permits 
it to penalize speech without regard to the work as a whole, its 
artistic merit, or its overall appeal to the average person.
    Where the Victorian era obscenity standard was used to censor 
Ulysses, An American Tragedy, and Tropic of Cancer, the indecency 
standard has effectively suppressed works like the Peabody Award winner 
The Singing Detective, critically-acclaimed plays, and political poetry 
like ``Your Revolution.'' Because of its vagueness, the indecency test 
can be used to restrict a wide range of constitutionally protected 
speech including ``discussions of prison rape or safe sexual practices, 
artistic images that include nude subjects, and arguably the card 
catalogue of the Carnegie Library.'' 160 For that reason, a 
full constitutional review of the FCC policy is essential.
---------------------------------------------------------------------------
    \160\ Reno, 521 U.S. at 878.

    Mr. Upton. Thank you.
    Mr. Wertz.

                  STATEMENT OF WILLIAM J. WERTZ

    Mr. Wertz. Thank you, Mr. Chairman and members of the 
committee, for allowing me to share our convictions on the 
issue of decency and community standards with you.
    We are a long-time broadcast licensee, and we believe that 
the broadcast license should be permitted to use the seven 
words George Carlin says you can use on the air.
    I understand first amendment considerations cause the FCC 
to be reluctant to take a firm stand on obscenity and community 
standards issues, and the root of this likely dates to when the 
National Association of Broadcasters Code of Ethics was struck 
down on antitrust issues over 20 years ago in a court case 
brought by the Justice Department against the NAB. Since the 
NAB settled that case and the Code of Ethics was eliminated, 
there has been a steady decline of over-the-air decency 
standards as some have pushed the envelope to the ripping point 
and far exceeded what any reasonable person would find as 
generally accepted community standards.
    We aired announcements on WQLR and WKZO, two of our 
stations, and would like to share some of them with you.
    Although I do not consider myself a prude, I find the level 
of obscenity on the air is not tolerable. Please fight for much 
stricter guidelines and controls so our children do not have to 
listen to the vulgar garbage that seems to be taking over.
    From another E-mail: This is a sensitive subject, 
especially when you are raising a 12-year-old son. Your 
stations I believe do set the tone in this community. It is so 
troubling to see what is really happening out there today, in 
journalism, print, radio, and television. There just seems to 
be almost no stopping as to where this is going.
    And the third: For the love of our children, we should not 
rob them of their innocence by perverting their minds and 
exposing them to the vile hatred that we are witnessing in the 
world today.
    The National Association of Broadcasters issued a voluntary 
statement of principles for radio and TV broadcasters in the 
early 1990's, but it has no enforcement action.
    I would suggest this hearing cover a majority of issues, 
including, and I quote: Where significant child audience can be 
expected, particular care should be exercised when addressing 
sexual themes. Obscenity is not constitutionally protected 
speech and is at all times unacceptable for broadcast.
    In conclusion, our company has always strived to set the 
bar for radio broadcasting in Kalamazoo, Michigan, and the 
subject of this hearing is vitally important to our listeners, 
to our community, and to us.
    We are very concerned that we witness the steady decline of 
over-the-air decency standards and at the same time lament the 
determination in 1982 of the NAB Code of Ethics that held 
stations to a higher standards. The voluntary NAB statement of 
principles should be an excellent starting point for restoring 
decency as defined by generally accepted community standards.
    It is my hope the government would permit NAB to establish 
voluntary guidelines and allow it to create a self-enforcement 
division that would administer obscenity and decency on radio 
and TV and also that NAB will accept this responsibility. I 
will personally volunteer my time to NAB, if it is permitted, 
to pursue this avenue. Many of us in radio have repeatedly 
asked for clear guidelines and guidance from the FCC, but 
perhaps it is best if these guidelines were developed by those 
of us in the industry on this issue. It is my hope that this 
hearing today will begin that process.
    Thank you, Mr. Chairman.
    [The prepared statement of William Wertz follows:]

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    Mr. Upton. Thank you all for your testimony.
    At this point, we will take questions from members of the 
subcommittee and those who have got unanimous consent.
    I would note Mr. Wynn gets 8 minutes since he deferred on 
his statement when we get to his turn.
    Mr. Solomon, you indicated--I am maybe going to put words 
in your mouth, but it seemed to me in your testimony that you 
welcomed Chairman Powell's statement that they were going to 
reverse the decision of the enforcement decision with regard to 
Bono's comment. Do you have an indication of when that may 
occur?
    Mr. Solomon. When?
    Mr. Upton. I actually would have thought they would have 
decided that before this hearing.
    Mr. Solomon. Well, as a personal matter I would have 
thought they would have put me out of my misery and decided 
before today as well, but they are actively working on it and 
it is under active consideration by the commissioners.
    Mr. Upton. Oh, good. I am pleased to hear that.
    I want to say off the Web I was able to get a whole list of 
different broadcasters, obviously, mostly radio, and the fines 
that had occurred over the last couple years and with that, 
too, was able to get the transcript. We were able to get the 
transcript, as to why they were fined. What concerns me as I 
look through this list is that there are a number of 
broadcasters in different parts of the country that are repeat 
offenders.
    And pretty bad stuff in my reading of what went on. And to 
me, it clearly defines the reason of why we are pursuing H.R. 
3717 and have such broad bipartisan support, and not only in 
the Congress but certainly on the subcommittee and the full 
committee.
    And I would have to say, based on your experience as the 
Enforcement Bureau Chief, do you believe that our bill, 3717, 
which allows for the tenfold increase in the fine, will put a 
serious damper if not an end to some of the repeat violations 
that a number of the broadcasters are going through?
    Mr. Solomon. I think it would very much have a significant 
effect. Certainly my experience, not just in this area but in 
other areas of enforcement, is that higher penalties, not just 
when used as a punishment but also as a deterrent, do have an 
effect. Whether it would eliminate it, I don't know. But I 
think it would have a significant effect.
    I think also this is also combined with the fact that the 
Commission has made clear that in the kinds, for example, of 
repeat cases that you are talking about, it is now looking 
seriously at the potential for revocation. I think that any 
sort of series of strong signals that the penalties are going 
to be increased should have a deterrent effect.
    Mr. Upton. I was going to ask you about revocation next. 
You know, I indicated in my opening statement three--some 
number--the three strikes and you are out legislation that the 
Congress passed a number of years ago.
    What is your sense of three times and you are off? I mean, 
some of these occurrences, in essence, are three times or more, 
just in the last couple of years. And, again, pretty serious 
violations in terms of the content that I read.
    Mr. Solomon. I agree that the kind of repeated offenses by 
often the same licensees and even the same disk jockeys or 
other people on the air is a cause for very serious concern.
    And I think that is why we have made clear that we are 
starting seriously to look at revocation as a potential remedy 
during the period after the Commission had announced that as 
its new approach.
    Mr. Upton. As I think about the future of our bill in terms 
of trying to move it quickly--it appears as though we are 
likely to have another hearing before we get to the markup 
stage--it might be instructive for us to have one of these 
violators come and talk about the impact of the fine, perhaps 
$7,000 or whatever, and what our bill would do to the type of 
content that they aired.
    Mr. Bozell, what is your sense on these two questions that 
I asked Mr. Solomon?
    Mr. Bozell. Well, I think it will make a tremendous 
difference, simply because $27,000 is meaningless. It is one--
as one Member of Congress said, $270,000 will be meaningless as 
well to a multibillion-dollar corporation. That is just a good 
TV ad there.
    If you slap a $3 million fine for continued violations, you 
will get their attention. And if behind it comes the threat of 
license revocation, you will get their attention. In the ruling 
yesterday on that one radio show, I think it was commendable 
that the FCC levied a $750,000 fine. But I believe in his 
dissenting opinion that Commissioner Copps was also correct in 
saying that what the FCC should have done is announced that it 
was going to look to revoke the license of those stations, 
because this was--they have been doing it since 1997, I 
believe. They have been laughing in everyone's face.
    Mr. Upton. I would just note in reading some of the 
decisions, it seems like virtually every one of the 
commissioners has said in their statement they wish the fine 
could be more.
    Mr. Bozell. That is correct. That will get their attention. 
I mean if a station is receiving not just a higher fine, but, 
as I believe you have proposed in your bill, which is extremely 
important, a fine for every occurrence instead of just one 
fine--if you put a fine for every time they used an obscenity 
or an indecency and you totaled them up, then like the Senator 
once said, sooner or later it will be serious money.
    Mr. Upton. We might be able to balance the budget maybe.
    Mr. Markey.
    Mr. Markey. Thank you, Mr. Chairman, very much.
    Mr. Bozell, your testimony makes reference to the fact that 
the ownership of a broadcast property is a privilege.
    Mr. Bozell. Yes, sir.
    Mr. Markey. And, as you know, the broadcasters wish to own 
even more broadcast properties, and that Chairman Michael 
Powell of the Federal Communications Commission agrees with 
that, and in fact, has been able to pass out of the Federal 
Communications Commission a new regulation which is now in 
court that would allow one company to own the biggest newspaper 
in town, 3 TV stations in that town, 8 radio stations in that 
town, the cable system for that town, and all of the Internet 
Web sites related to all of those entities providing 
information in that community. So that means that it would be 
an even greater privilege for each of those companies in each 
community.
    Could you elaborate, Mr. Bozell, on this whole notion of 
the privilege of owning a broadcast property, and what the 
concomitant responsibilities are that attach to that?
    Mr. Bozell. Yes, sir. The Supreme Court has said, in 
effect, that they are called public airwaves for a reason. They 
belong to the public. The late Steve Allen once told me a very 
insightful insider's view of this. He said, Back in the 1950's 
and through the early 1960's in the entertainment community, 
you saw yourself as an invited guest in the family living room 
where there were children assembled. As such, you performed for 
the family because you were the guest of the family in the 
living room.
    As Senator Joe Lieberman says, today it is a situation 
where families are trying to impart values at the kitchen 
table, and then when the children go into the living room 
afterwards, you have got an industry that tells them that they 
can tell their parents to drop dead.
    But these are the public airwaves. These do not belong to 
the networks. Never have, never will. They belong to the 
public, therefore, and the Supreme Court has stated such, that 
they have a responsibility to abide by community standards.
    And I would ask you, Congressman, and I applaud you for 
cosponsoring this bill which I think is so important, I would 
ask you, Can anyone name me a single community in the United 
States of America that abides by these kind of standards where 
they find this acceptable?
    This is abhorrent to every community in America, even 
90210. So the networks don't have a leg to stand on. And I 
believe that what the Congress ought to have been doing with 
this vote on ownership is to say to them that you have abused 
that privilege, you have abused that right; rather than giving 
you more stations, we are going to take some away.
    Mr. Markey. Let me ask you this, Mr. Bozell. The standard 
which Mr. Upton and I have built into this legislation would 
increase the fines from $27,000 up to $270,000. But we are open 
on this question, because it raises the question, when 
individual companies have revenues for a year of $27 billion, 
whether or not that is a sufficient deterrent.
    Given the consolidation that is perhaps in the immediate 
historical future, would it perhaps make some sense to tie the 
fine to the number of stations that a company own, and have the 
control over in broadcasting this information, or the revenues 
of that company, rather than a $270,000 fine? Have you given 
any thought to what would be the best-tailored punishment if 
there is a violation of these standards?
    Mr. Bozell. I think, Congressman, that it ought to be a 
fine per occurrence, per station, airing that violation. 
Because the stations are the ones making the decision to air 
it.
    Now, if you asked the affiliates what they think about 
that, they will say, Now wait a minute. This, Congressman, is 
the blame game that everyone plays. Everyone blames someone 
else. Their answer will be, You can't blame us because the 
networks don't let us see this programming before we air it. 
And they, in fact, say to us or infer to us that if you give us 
any trouble, we are not going to let you be part of the 
network, and we are going to give your affiliation to someone 
else. So we have to air this. No, we ought to make the 
affiliates take responsibility for their actions. You air it, 
you violate it, you get fined.
    Mr. Markey. Under what scenarios, Mr. Bozell, should a 
license be revoked? What would you establish as the test, if 
there were a series of violations, that would then invoke the 
revocation of the ownership of a television station?
    Mr. Bozell. Congressman, I think it is intent that is at 
the bottom line here.
    Mr. Markey. What would be intent? The intent to do what and 
how many offenses, over what period of time? What would you 
establish as the standard?
    Mr. Bozell. I don't know that I would establish a numerical 
quotient on this, but I think I would look at what is the 
history of this station, to what degree--when Clear Channel 
puts out a statement yesterday saying it is not their intent to 
be indecent, I believe that is preposterous. Of course it is. 
That is what they have been trying to do with these shock 
jocks.
    I think that if the intent is to be indecent, and I think 
if it is established that there is a history of this, that they 
have been warned, they have been fined, and they continue doing 
it again, I think there becomes a point when you can look at 
that and say, You don't have any intention of abiding by the 
law.
    Mr. Markey. Mr. Bozell, thank you. And I thank all of you 
for your participation here today. I think this is a very 
important American discussion about the future of the 
relationship of all families and the sights and the sounds 
which are allowed to go into living rooms all across the 
country. I don't think that there is a more important cultural 
debate that we could be having.
    Mr. Upton. Mr. Bilirakis.
    Mr. Bilirakis. Thank you, Mr. Chairman. Mr. Solomon--well 
named, by the way. Has the FCC ever tried to revoke a license 
for indecency?
    Mr. Solomon. It has not had any revocation hearings on 
indecency. Last year the Commission announced for the first 
time that it was going to start looking at revocation for 
behavior that took place after that announcement. And I can 
tell you we are doing that as we look at cases.
    Mr. Bilirakis. So in other words, the Communications Act of 
1934, as amended, did not give them that authority?
    Mr. Solomon. It gave us the authority. The Commission in 
general doesn't revoke very many licenses and tends to focus on 
misrepresentation and abuse of process. So it was significant 
that it announced that it was going to also look at indecency 
cases as an area for possible revocation.
    Mr. Bilirakis. That hasn't scared too many people, 
apparently.
    Mr. Corn-Revere, referring to that same act, the 1934, I 
know you are a first amendment specialist and whatnot, but in 
terms of the act as it exists, you know amended and whatnot, do 
you have any problems with the act, the intent of the Congress 
in the act?
    Mr. Corn-Revere. No, not per se. But there are some 
tensions in the act that have to be addressed. Not only did 
Congress adopt what originally was section 27 of the Radio Act 
that became part of the Criminal Code, but it also adopted 
section 326, which says that it does not give the FCC the power 
of censorship, either by direct rule or by condition.
    So the difficulty has been, both from a matter of statutory 
interpretation and constitutional analysis, how to resolve that 
tension.
    Mr. Bilirakis. All right. But you refer to the--giving the 
FCC the power of censorship. The act, though, would give, as I 
understand it, the right to preempt network programming as a 
right granted to local licensees understood under that act. And 
as I understand it again, the real world, is that increasingly 
network affiliation agreements threaten affiliates with 
termination of their network affiliation if there are more than 
2 or 3 preemptions of network programming, I guess, depending 
on the contracts, without the network's consent.
    So I guess I would ask all of you that question. Doesn't 
this undermine the rights of Congress specifically delegated to 
broadcast licensees under the Communications Act to program 
their stations in a manner that serves the public interest, 
convenience, and necessity?
    Should, Mr. Solomon et al, the rest of you, should the 
networks have the right to use their power of negotiation, if 
you will, in granting licenses to operators or whatnot? People 
have invested, you know, their life savings, et cetera, et 
cetera, and all of the money that they have had to borrow, to 
start a broadcast station, they need the affiliation, they need 
the programming and whatnot.
    So what power do they have, in spite of the fact that 
Congress has given them that right? At least the way that I 
think it has been interpreted.
    Mr. Solomon. Let me make two points. One is there is a 
proceeding pending before the Commission involving the 
affiliates and questions about the affiliate-network relation, 
so I don't want to comment on that proceeding.
    But certainly the premise of your question from a 
perspective of how we do enforcement, if we find a TV program 
to be indecent that was broadcast over a number of stations, we 
would look to take enforcement action against each of those.
    Mr. Bilirakis. But what I am saying is that the licensee 
should have the right to determine--they are charged with the 
responsibility. They are fined by the FCC when in fact this 
indecent programming takes place on their station.
    Should they then have a right to determine whether or not--
Congress gave them that right, as I understand it, to determine 
whether or not they want that on their station, in that 
particular locale, if you will--should they have that right? 
Congress gave them that right. Do we disagree with that in 
terms of interpreting what Congress' intent was back in 1934 
and since then? Do we have a problem with that? We don't. So 
what should Congress do, then, in order to abide by that intent 
of Congress regarding licensees having the right that Congress 
intended them to have?
    Mr. Wertz. I would like to answer that.
    Mr. Bilirakis. You are a radio station. That is the only 
reason I didn't focus it on you.
    Mr. Wertz. We are radio, but for this committee as well for 
everybody, radio plays to the largest theater of all, the 
theater of the mind, where television plays to 2-D. So, a 
little aside.
    The Communications Act: There are a few things that we 
would like as long-term broadcasters to see brought back. 
Ascertainment existed until I believe sometime in the mid- to 
late 1970's. And ascertainment was a process where we as 
licensees were required to go out into our community and find 
out what made it work and what, more specifically, made it not 
work. And we couldn't fix problems, but we could certainly 
offer, you know, two sides the opportunity to discuss our needs 
of our communities on the air.
    As part of deregulation, that process has been eliminated. 
I think that was a mistake. You know, third class operator 
permits used to be required for on-air talents. That was from a 
technical standpoint, because they were operating the 
transmitters.
    But I would like to see, from the talent side--and this is 
as an owner--I would like to see talent be given permits again. 
And as part of that, before we punish people, let's educate 
them. Let's train them as to what they can and cannot say, and 
then give them permits so that when they actually go on the air 
they have some clear guidelines that we have not had any 
direction from in over 20 years. You know, the education, I 
think, is a very important part of this whole process.
    Mr. Upton. Go ahead.
    Mr. Bozell. Congressman, the law states that these networks 
have to abide by community standards, local community 
standards. How can they abide by community standards when they 
don't allow the affiliates to have a say in community 
standards?
    Mr. Bilirakis. Amen. Correct. So that is really my whole 
point. I wonder--we are talking about words here. And who was 
it, Greg and others have brought up the point that--and Mr. 
Corn-Revere referred to the Bible and whatnot. So I don't care 
how many words we come up with in this legislation, there are 
going to be other problems arising, other words, if you will, 
other phrases, et cetera, other conduct, et cetera.
    So shouldn't we be giving them the authority? Mr. Chairman, 
forgive me for taking up so much time. Shouldn't we be giving 
them the authority that is intended by Congress in the first 
place to the licensees to make that determination, which is 
what was intended?
    Well, all right, I am not asking for an answer to that. We 
have already taken up too much time. But that is something that 
we ought to be focusing on. Thank you.
    Mr. Upton. Thank you. Mr. Rush.
    Mr. Rush. Thank you, Mr. Chairman.
    Mr. Solomon, I am going to venture off into another area of 
this discussion. In a column that appeared in one of my local 
newspapers, the Chicago Sun-Times, dated January 23, 2004, a 
column written by a former education reporter for the same 
newspaper and also now currently a teacher in a public school 
in the city of Chicago, she writes and I quote--I am just going 
to amend this, just give you some of the highlights of this 
column.
    She writes: For at least a month, radio pirates have been 
broadcasting profane, violent rap music on Chicago airwaves 
using a frequency belonging to contemporary Christian station 
WCFL.
    I came upon this pirate station by accident, scanning the 
dial while driving near the elementary school where I teach. I 
nearly drove into oncoming traffic when I heard FM taken over 
by MF. It was a riveting radio, especially if you are old 
enough to remember when Shat was a bad dot, dot, dot, and the 
second half of the compound word was shut your mouth.
    Then she goes on to describe some of the words, not 
describe some of the material. She said the material broadcast 
by the pirates was so low that any thinking person who listened 
would surely doubt his sanity. One song was about a drug dealer 
who was seduced by a woman who was working for another drug 
dealer, and while the first drug dealer was having sex with the 
woman, he happened to roll over just in the nick of time to see 
the woman's head get blown apart by a bullet shot through a 
window intended for the first drug dealer. And the line about 
her brains splattered all over the bed and the walls really 
stuck with me.
    That leads me into my question. She also indicates that she 
did call the FCC and someone, who I don't want to put into the 
public record, said there don't seem to be any complaints. She 
said in response to a complaint, investigators with electronic 
monitoring equipment hunt down the pirate signal.
    Is there a problem that the FCC has been--has discovered? 
Are you aware of a serious problem with pirates using the 
airwaves and pirating the airwaves and using all kinds of 
provocative and indecent language over the airwaves?
    Mr. Solomon. There certainly is a problem with pirate 
radio. We have made that a major priority. We have field 
offices in 25 locations around the country. And pirate radio is 
an important aspect of what they do. We do have, as you alluded 
to, interference detection equipment that we can use to locate 
the signals.
    Last year we shut down something on the order of 300 pirate 
radio stations around the country. We do it through a variety 
of means. In the first instance, we often do it through 
warnings. In extreme instances, we work with the Department of 
Justice and seize the equipment with U.S. Marshals. In a few 
cases we have also worked with U.S. Attorney's offices where 
there have been injunctions or even criminal actions.
    So pirate radio is a problem. It is something that we have 
given high priority to. Our focus is really on shutting down 
the pirates per se, more than focusing on what it is that they 
are saying, because even if what they were saying was, ``good 
stuff,'' they still shouldn't be on as unlicensed. It can 
interfere with other broadcasters. In some cases it can 
interfere with aviation frequencies. So it is a serious 
problem.
    Mr. Rush. Has there been a significant increase in the 
number of pirate stations over the last, say, 3 to 5 years?
    Mr. Solomon. I think it has probably been fairly steady. I 
think--maybe this is overly optimistic--we are having some 
inroads. There are some areas where it is still very serious, 
but in some other areas I think we have made progress.
    Mr. Rush. In order to initiate an FCC investigation, what 
would be the process?
    Mr. Solomon. They can call our field office, call me or e-
mail me. We have a division in Washington called the Spectrum 
Enforcement Division. They can contact them, and we give the 
information to the field and they do investigate it.
    Mr. Rush. So one would just have to inform the FCC via e-
mail, letter, or phone call in order to initiate an 
investigation?
    Mr. Solomon. Right. In this area, yes.
    Mr. Rush. Are there any kind of criminal proceedings or any 
kind of financial fines or anything levied against those 
individuals who are involved in it?
    Mr. Solomon. Yes, we can take several actions. In many 
cases we have issued fines. In some cases we have, working with 
the U.S. Marshals, seized the illegal equipment. In other cases 
there have been some injunctions or arrests in terms of 
repeated or extreme offenses. So we have a series of tools, and 
we use several of them.
    Mr. Rush. So has any violator or pirate been jailed?
    Mr. Solomon. I think there was one in Florida that had a 
criminal conviction. That may have been an amateur. I know 
there was also an injunction in Florida. The most serious 
problems are in south Florida.
    Mr. Rush. Thank you, Mr. Chairman. I yield back.
    Mr. Upton. Thank you. Mr. Shimkus.
    Mr. Shimkus. Thank you, Mr. Chairman. Again, I appreciate 
this hearing. And in the opening statement, one thing I forgot 
to mention, that of all of the problems and concerns that the 
Nation is experiencing in this area, this is my No. 1 issue 
that people have contacted me for.
    I know Mr. Terry added on to what we were discussing; but 
when I say it is the proverbial straw, it has really awakened a 
great segment of my district. So I want to ask questions with 
direction to the piece of legislation proposed and also the 
concern of addressing intent.
    Legislatively, there is always a problem when we pass laws. 
And I think we know there are malicious actors out there that 
are intent on trying to grab an insidious part of a market 
share, and they are abusing the public airwaves. No one 
disputes that. Those are the people that we want to go after. 
Those are the people we want to shut down because they are 
abusing the public airwaves.
    Mr. Corn-Revere, you mentioned scripture, which brings us 
to this issue of intent. Second Timothy 3:16 says: All 
scripture is inspired by God and profitable for doctrine for 
rebuke, for training and righteousness, but the man of God 
might be equipped for every good deed.
    So if we just had a radio show and quoted scripture and 
then penalized the use of the word in scripture, the intent of 
the language in the scripture is not to debase, but it is to 
train, instruct, and it is--to train in righteousness. That is 
the whole intent.
    So I am going to throw out, how do we fashion legislative 
language--and I am a cosponsor--to make sure that we go after 
the bad actors, the people who are intending to defraud and 
abuse and misuse the public airwaves, and not go after, you 
know, as I said in the opening statement, slippage? And how do 
you craft in the FCC a ruling body that can judge intent?
    And I am going to stop. I am going to throw it open to you 
all. But one of the things and one of the points addressed by 
the committee was an issue of multiple utterances in a defined 
monologue and speech over maybe the course of a show. I mean, 
if you hear it two times in the same sentence, then you can 
probably guess that wasn't a slip, it is part of a show. It is 
part of the aura of that period of time. Where if it was just a 
mistake, we all are sinful human beings, we all will make a 
mistake, is that punishable? And how do we craft the language 
of law to do that?
    And let me just--Mr. Solomon, why don't you start and then 
we'll let the panelists in order answer that question.
    Mr. Solomon. Well, I think the kind of intent and other 
factors that you are talking about are what we traditionally 
look at in assessing penalties. Traditionally, the Commission 
in this area and other areas looks at all of the facts and 
circumstances, looks at intent, looks at the seriousness of the 
violation.
    Mr. Shimkus. You don't feel the language proposed, based 
upon your ability, would not affect the--any change, you would 
still judge intent and still--this would just give you more of 
a penalty aspect?
    Mr. Solomon. Right.
    Mr. Bozell. Well, Congressman, three points. One was in the 
Bono--in the now famous Bono situation. It was not accidental 
in the sense that NBC, as I understand it, chose not to use the 
bleeper button that night. Plus, once it came out, NBC not only 
didn't apologize for it, they defended themselves vigorously 
over a period of months saying they had the right to do that. 
And I believe if they had simply said oops, we made a mistake, 
and we forgot to turn it on, that would be fine.
    Now, insofar as the wording is concerned, Congressman, you 
are right. And I believe Mr. Corn-Revere is correct when he 
says, you know, if you use the Ose bill on the seven dirty 
words, the way it is crafted I don't think it will hold water 
constitutionally on a per se basis.
    On the other hand, I would invite you to look at the legal 
definition of the word ``obscenity.'' It is four paragraphs 
long. If you look at the Webster's definition of obscenity, it 
is one line. If you look at the legal definition of obscenity, 
you find that basically it has to have hard-core pornography 
and penetration that is visual.
    If you look at the Webster's definition, it is abhorrent to 
morality or virtue; it has nothing to do with that. I think 
sometimes the simple answer is the clear one.
    Mr. Corn-Revere. Well, Mr. Bozell is absolutely correct. 
And actually just for the record, this may be the only time 
those words will be spoken, but he was absolutely correct when 
he says that the Ose bill----
    Mr. Shimkus. I apologize. I am glad for bringing everyone 
together here.
    Mr. Corn-Revere. The Ose bill has serious constitutional 
problems because it would establish a per se rule. And as you 
point out, that is where any use, including Biblical use of 
language that appears in that bill, would be subject to an 
automatic violation regardless of intent.
    But your question goes to the heart of why this is such a 
difficult constitutional problem. And that is, once you start 
looking at other factors, whether it is intent, serious 
literary, artistic, political, scientific merit, or any of the 
other factors, then you have a host of variables that makes 
this a more complicated puzzle.
    That is why the FCC has had such a difficult time with 
this. Mr. Bozell mentioned the test for obscenity. But it took 
100 years for the courts to refine and develop what became a 
three-part test in 1973 to define obscenity. It is not perfect. 
But it comes a lot closer than had existed in the past.
    The difficulty with the indecency standard is that it lacks 
the same level of precision and leaves more to administrative 
discretion and more to guesswork on whether or not something 
fits within that definition.
    Now, Mr. Bozell says that it is up to local community 
standards. That is just plain wrong. The FCC has said on 
numerous occasions that, unlike the test for obscenity, the 
test for indecency is not based on a local community standard. 
It is the community standard as defined by whatever five 
commissioners happen to be filling those seats at any given 
time. They decide what the community standard is for 
broadcasting. And based on that, they could make a wide range 
of decisions, because the definition is so very broad for what 
could possibly be indecent.
    Now, in that respect, Justice Kennedy at the Supreme Court 
has written that self-assurance is the hallmark of the censor. 
And in that case, Mr. Bozell seems to be very, very certain 
about what programs we should not be watching on television or 
listening to on radio. Just going by the Web site of the 
Parents Television Council, for example, they list the top 10 
and the worst 10 and the best 10 television shows.
    The No. 1 show on the worst 10 is CSI, Crime Scene on CBS, 
which just coincidentally is the top-rated show on television. 
If the community standard for broadcasting has nothing to do 
with people--with what people have chosen to watch, I am not 
sure what the community standard may be.
    There is also a part of the Web site for Parents Television 
Council that calls on people to file complaints with the FCC 
over the Victoria's Secret fashion show. Now, say what you will 
about that show, you might like it, you might hate it, for 
purposes of constitutional analysis it is really the same thing 
as Baywatch, although with perhaps better acting.
    And so, you know, there is no way in the world under the 
current standard that that show can be considered indecent. And 
yet if we are to judge community standards by the testimony we 
have heard today, television would be a very different place, 
contrary to the choices that most television viewers make.
    Mr. Bozell. Since this attack came out of nowhere, can I 
defend myself?
    Mr. Upton. I will give you 30 seconds.
    Mr. Bozell. Fine. First of all, we have never suggested 
that nobody should watch CSI. That is preposterous, and you 
know that.
    Second, where Victoria's Secret is concerned, many 
organizations complained, people complained from all over the 
country. I thought that was our right, first amendment. Thank 
you.
    Mr. Upton. The gentleman from Maryland--oh, before I 
recognize the gentleman from Maryland, I wanted to say, under 
unanimous consent, that we will enter the newspaper story from 
the Chicago Sun-Times that was referenced earlier.
    [The information referred to follows:]

          [Friday, January 23, 2004--Chicago Sun-Times, Inc.]

        Gangstas Take Over Christian Radio, and No One Complains
                           By Leslie Baldacci

    For at least a month, radio pirates have been broadcasting profane, 
violent rap music on Chicago airwaves, using a frequency belonging to 
``contemporary Christian'' station WCFL.
    The bigger shock is that no one complained.
    I came upon the pirate station by accident, scanning the dial while 
driving near the elementary school where I teach in Chatham. I nearly 
drove into oncoming traffic when I heard FM taken over by ``MF.''
    ``Someone at that station is going to be in big trouble,'' I 
thought, waiting for the song to suddenly be yanked off the air. I was 
dying to hear how the embarrassed DJ would talk himself out of such a 
gaffe.
    But on chugged the verses. And when that ``song'' was over, another 
one came on, and then another.
    It was riveting radio, especially if you're old enough to remember 
when Shaft was ``a bad mother . . .'' and the second half of the 
compound word was ``Shut your mouth!''
    That first night, I listened from 83rd and Cottage Grove to 42nd 
and Lake Park, all through Chatham (home of the former police 
superintendent), Hyde Park and Kenwood. It was so crazy and other-
worldly to hear such language on the radio that I started to wonder 
whether I was having some weird aural hallucination after a stressful 
day at school. So I tuned in again on my way home from my book club, 
and there it was! I listened until I lost the signal around 95th and 
Halsted.
    I listened the next morning, but the signal was weak. But on 
Saturday night, driving to the North Side for a party, I caught it 
clear as a bell and listened to 50 Cent, Jay-Z and Ludacris rhyme about 
their sex lives in graphic detail all along the Dan Ryan Expy. from 
87th Street to Cermak Road.
    Which means that the thousands of people in other cars driving 
through Chicago could have been listening, too. Nice welcome mat for 
the folks driving in from the east! Way to set the table for our fair 
city! Or a fair adieu for the folks driving out of town: Y'all come 
back now, hear?
    The material broadcast by the pirates was so raw that any thinking 
person who listened would surely doubt his sanity. One (song) was about 
a (drug dealer) who was seduced by a (woman) who was working for 
another (drug dealer) and while the first (drug dealer) was (having sex 
with) the (woman) he happened to roll over just in the nick of time to 
see the (woman's) head get blown apart by a bullet shot through a 
window, intended for the (first drug dealer). The line about her brains 
splattered all over the bed and the walls really stuck with me.
    Freddrenna M. Lyle, alderman of the 6th Ward, came upon it the same 
way I did: ``scanning'' the dial.
    ``I couldn't believe it. It's X-rated,'' she said. ``I picked it up 
with my 17-year-old niece when we were Christmas shopping. I said 'What 
is that? They can't play that!' She said it was an underground station. 
All of the kids knew about it.''
    I asked my students, who are 10 and 11 years old, if they knew 
about the station, if they'd heard it. They had.
    ``I heard it when I was driving with my mother. She switched the 
station,'' said one of my fifth-graders.
    I happened to catch the signal one night last week while idling at 
a light with a 14-year-old.
    ``What is this?'' she shrieked.
    Lyle said she received not a single complaint. She suspects the 
only people who would know of the pirate station would be people like 
us, who happened upon it. (And kids. C'mon, who are they going to tell? 
Other kids!)
    ``There don't seem to be any complaints,'' said Suzanne Tetrault of 
the FCC's enforcement office in Washington, D.C.
    She said in response to a complaint, investigators with electronic 
monitoring equipment hunt down the pirate signal. When they find it, 
and the people responsible, they take action to shut them down. 
Penalties include fines and even criminal prosecution.
    Until then, the bombardment of negative, hateful, gangsta images 
will likely continue on the South Side airwaves. I hate to think that 
any of my students caught in the radio crossfire would take to heart 
testimony of hate and genocide from artists operating under the banner 
of truth and validation.
    It must be doubly confusing when the pirate signal cuts in and out 
with the Christian station's promises that ``Your children are safe 
here.''

    Mr. Upton. Mr. Wynn.
    Mr. Wynn. Thank you, Mr. Chairman. Let me begin by saying 
that I was pleased to cosponsor the bill that you and the 
Ranking Member have put together. I think it does address the 
issue.
    I would like to ask my colleague, Mr. Rush, if he still 
needs the time.
    Mr. Rush. No, I don't. Thank you.
    Mr. Wynn. Thank you.
    Mr. Solomon, if the FCC in fact does reverse the Bureau, 
are we now moving into the area of a per se rule with respect 
to certain words as is referenced in Mr. Ose's bill?
    Mr. Solomon. Well, I think at this point the commissioners 
are looking at those issues and focusing on what they plan to 
do and what the rationale will be. So it is hard for me to say 
what they are going to decide.
    Mr. Wynn. Didn't you just say that you anticipated that 
they would in fact reverse the Bureau?
    Mr. Solomon. The chairman has certainly proposed that.
    Mr. Wynn. Let's assume that they did, and you said that 
that would be a significant strengthening of the indecency 
enforcement. Are you then recommending that we move toward a 
per se rule with respect to certain words?
    Mr. Solomon. I really can't speak to what rationale or what 
rule the Commission is going to adopt in the case, because it 
hasn't decided it yet. It is deciding----
    Mr. Wynn. I am going to try one more time. Hypothetically, 
if they do what you have suggested they ought to do, would that 
be the adoption of a per se rule, and would that be the 
beginning of a policy of per se rules with respect to indecency 
enforcement?
    Mr. Solomon. It could be; but it might not be. It would 
depend on the theory of what the Commission uses in deciding 
the case and what kind of explanation----
    Mr. Wynn. Are there any other words that you believe--this 
is to quote from your testimony--would represent a significant 
strengthening of indecency enforcement?
    Mr. Solomon. I guess what I would say at this point--and I 
hope this doesn't sound too bureaucratic--but my job is to 
follow Commission precedent. Right now the Commission has said 
in its precedent that no word is, per se, indecent, and that 
isolated use of a particular word is not indecent. To the 
extent they overrule the Golden Globe decision and alter or 
depart from the precedent that we based it on, I think it is 
going to depend how they explain it.
    Mr. Wynn. But you recommend overruling the Bureau?
    Mr. Solomon. The chairman has recommended overruling it.
    Mr. Wynn. Do you recommend overruling the Bureau?
    Mr. Solomon. Well, there are rules----
    Mr. Wynn. Your testimony seems to think it is a good idea.
    Mr. Solomon. It certainly would be a significant 
strengthening.
    Mr. Wynn. That is fine.
    Mr. Bozell made an interesting point, with which I actually 
concur to some extent, because I am the father of a 9-year-old, 
with regard to innuendo and the Saturday Night Live parody.
    Is there a way to get to the innuendo--which kind of goes 
to my colleague's question regarding intent--and how far we can 
go if we really want to get to that? My personal opinion is 
that this type of parody and innuendo is probably much more 
dangerous than the use of the quote ``f'' word in a context 
that has a nonsexual context. So, how are you proposing that we 
get to that issue, Mr. Bozell?
    Mr. Bozell. Well, let me make it even more confusing.
    Mr. Wynn. I don't need to be more confused. I am trying to 
make it clearer.
    Mr. Bozell. It is difficult, Congressman. It is what is 
worse? Saying the ``f'' word or bleeping the ``f'' word? 
Someone who goes--and you know exactly what they are doing on 
television.
    Mr. Wynn. You mean like a football coach.
    Mr. Bozell. Yeah. But when you are doing it at 8 p.m., 
deliberately in a script, and you bleep it, therefore now it is 
okay; but every child saw you say the ``f'' word. I mean, is 
there--is there intent to be--to do something indecent? I think 
so. But it was bleeped.
    So, Congressman, I don't know the answer. But I think, you 
know, it is like the old definition of pornography: You know it 
when you see it. When someone is talking about things that were 
discussed in that transcript, you know what the intention was.
    Mr. Wynn. I do sympathize with you, in sincerity. But I am 
not sure we are moving forward in terms of getting to that 
issue of the parody. I mean, quite frankly--and I thought I was 
fairly knowledgeable and worldly on the matter--some of the 
things that you have said, kids would know what it meant; I 
didn't know what it meant.
    So, again, is there anything that you are suggesting that 
would enable us to get to issues of deliberate sexual and 
inappropriate sexual innuendo without compromising the first 
amendment?
    Mr. Bozell. Senator Lieberman put it best. Would you use 
this language at your dinner table with your children? If you 
wouldn't, then it is probably going to be indecent.
    Mr. Wynn. But the point is we have to make laws for 
broadcasters and affiliates, and parodies are a quite common 
issue.
    And I am going to have to assume that you don't really have 
an answer. That is not to find fault with you, but to say that 
you acknowledge the difficulty in enforcing parodies.
    Mr. Bozell. Absolutely, I do.
    Mr. Wynn. That is fine. Would you advocate the censorship 
of shock jocks?
    Mr. Bozell. Well, you can't say what some shock jocks say, 
you can't put that on your license plate on your car, it is 
against the law. Why should they be allowed to say it? Why 
should they be allowed to say it? Why should--if you had a 
situation as you had here in----
    Mr. Wynn. So you do advocate the censorship of shock jocks?
    Mr. Bozell. I believe there are limits to free speech. And 
I believe the Supreme Court has written so.
    Mr. Wynn. So how would you propose that we approach that?
    Mr. Bozell. Well, a shock jock isn't a shock jock until he 
does something indecent.
    Mr. Wynn. So we have to ban shock jocks?
    Mr. Bozell. No. You fine the stations that have the shock 
jocks and they will stop hiring shock jocks.
    Mr. Wynn. So you basically want to----
    Mr. Bozell. I think you ought to focus on the stations and 
the networks as opposed to the individuals.
    Mr. Wynn. To get rid of shock jocks. Do you draw any 
distinction between the invasive nature of television and 
radio?
    Mr. Bozell. Not as much as I would a distinction between 
television and movie theaters. I think you drive to the movie 
theater, but the radio is in your car as well.
    Mr. Wynn. Okay. But you do have a lot more latitude to turn 
it off or change the channel, would you not agree?
    Mr. Bozell. Congressman, the responsibility is--the onus 
ought not to be on the owner of the airwaves to change the 
channel, it ought to be on those who are borrowing those 
channels to honor the wishes of the owners.
    Mr. Wynn. What are we going do about that football coach? 
This is humorous, obviously. But it also is serious. Because, 
you know, Mr. Solomon has just moved us into the realm of per 
se indecency, and one guy is Bono, the other guy is an NFL 
coach, and they are basically saying the same thing. I think it 
is a little problematic.
    Mr. Bozell. I think, Congressman, as Congressman Terry said 
before, you expect Bono to say what he said. Well, if we have 
come to the point in our society where we expect football 
coaches to do that, then we ought to have a bleep machine. That 
is all you have to do.
    Mr. Wynn. Are you in favor of mandatory bleeping?
    Mr. Bozell. I think it ought to be a voluntary thing that 
the networks do in good faith.
    Mr. Wynn. Okay. All right. Thank you.
    Mr. Upton. The gentlelady from New Mexico, Mrs. Wilson.
    Mrs. Wilson. Thank you, Mr. Chairman, and thank you for 
holding this hearing. I think like many others on this 
committee, I have got a lot of e-mail and letters about your 
indecency ruling, and I am glad that you appear to be pleased 
by the FCC chairman's intention to overrule your technical 
decision.
    And I understand the situation that you are in. But the 
nature of the mail I have been getting is frankly also the way 
I feel: that it is really hard to rise G-rated kids in an R-
rated world. And while as parents we make choices about where 
we take our kids, we don't get in the car and go to movies that 
we don't want them to see, or to art exhibits that go beyond 
Rodin, we have a technology that is pervasive in our 
automobiles and in our homes.
    And while we have practices at our home that may limit the 
exposure of our children, why should we have to worry what is 
on television at 7 o'clock at night on a Sunday? And I don't 
think we should have to. I think we should be able as a family, 
to be able to watch television and not have to use it as 
teaching a lesson of what not to say, and explain why that is 
not the thing that we say. And I know we all have first 
amendment rights, but we also have responsibilities. And in 
this case, because the broadcasters have licenses, there is the 
ability to enforce that responsibility.
    Mr. Corn-Revere, you talked a little bit about television 
and community standards being set in a way--we talked about the 
number of people that watch CSI and so forth. Now, we have an 
interactive situation here a little bit. TV influences 
standards in addition to being influenced by community 
standards. And I don't think there is a way--I think we have to 
acknowledge that--maybe it is a paradox. It is like standing in 
a hall of mirrors where it goes--the light goes backwards and 
forwards.
    And I am very concerned about the coarsening influence of 
television on society. And I also worry, Mr. Bozell, that 
unfortunately there are some dinner tables where the language 
you and I would not want to hear is used. And if that is the 
standard, if we go to the lowest common denominator of don't 
say anything--nothing is allowed on television that you 
wouldn't say at your own dinner table, unfortunately there are 
people who use that language at their dinner table. But I don't 
want to have it in my living room. And I think there are a 
large number of Americans who don't want to have that as well.
    So I appreciate the testimony that we have had here this 
morning. And I appreciate your time and attention to these 
matters because I was very disappointed in the FCC ruling. And 
you may have felt as an enforcement bureau, that somehow you 
were constrained in what you could do, but the truth is, I 
don't care if it is an adjective or a verb, we shouldn't be 
getting--it is absurd to get to that level of splitting hairs 
to decide what can be on or off television. And it is also 
absurd to try to set up that standard for a station owner who 
is trying to figure out what these rules really mean. So I 
think this Congress is going to roll this back. I am a 
cosponsor of a couple of the bills and resolutions to do so, 
and I think the FCC is as well. And I say good on them.
    Thank you, Mr. Chairman.
    Mr. Upton. Mr. Gonzalez.
    Mr. Gonzalez. Thank you very much, Mr. Chairman. My first 
observation: My first day here, and this is so much more 
interesting than anything in 5 years in Financial Services.
    Mr. Upton. I will tell Mr. Oxley you said that.
    Mr. Gonzalez. I probably will tell him myself. As you know, 
he probably would have rather have been over here the whole 
time.
    Mr. Upton. Welcome to the big house.
    Mr. Gonzalez. I agree with Mr. Dingell that we are probably 
going to have to follow up where we have the chairman and 
members of the Commission here. But I also wish to indicate 
that I know where the chairman is today and some of the 
commissioners. They are in my district and they are conducting 
a hearing on localism. But I know that they would welcome the 
opportunity to be here and testify, and I hope that we will 
give them that opportunity soon.
    My question really is, Do we have uniform standards? It 
seems to me that it is kind of a moving target, case-by-case 
evaluation and some criteria. And yet there are suggestions out 
there that maybe get the industry involved along with other 
representatives, as this Congress may choose, to form some sort 
of a task force, come out with some sort of industrywide 
standards. And that I think provides certain advantages.
    The first one, if you have standards that are adopted that 
reflect what the courts also like to see--and that is, what are 
the morals and values that are supposed to be reflected in any 
regulatory scheme--then it will probably pass constitutional 
muster.
    And second, in its application it will be fair to the 
industry itself; because I do believe that you probably have a 
certain application of any given time that may differ, and that 
we should not do that in any type of regulatory scheme.
    How is the best way to achieve a uniform standard? And that 
is the question to all of the witnesses.
    Mr. Solomon. I guess one thing I would say is that there is 
a standard that the FCC has that has been affirmed by the 
courts. I don't know the details of the Clear Channel proposal 
from yesterday. I certainly think it is a good idea if 
broadcasters work voluntarily to try to adopt and improve on 
their own standards, regardless of what the legal standard is.
    I also think it is important that we be careful that any 
sort of private standard-setting body doesn't lead to or 
doesn't start with the premise that the FCC's rules that have 
been affirmed by the Court are too confusing and therefore 
until broadcasters and others figure out what should replace 
our standards, we can't enforce what we have.
    I think it is important from our perspective that we have a 
standard that. As Chairman Tauzin mentioned, there may be close 
cases on the margin, but we have a standard that we have 
applied that the courts have upheld.
    And, I think, without deciding or prejudging particular 
cases, it is hard, for example, in the Clear Channel, Notice of 
Apparent Liability that we issued yesterday for a company to 
come along and say, we had no clue that this kind of thing 
might violate the FCC's rules.
    So I think it is useful for companies to focus on voluntary 
standards, the NAB Code kind of thing, but it shouldn't be used 
as a way to say that the FCC can't enforce what is already 
lawful.
    Mr. Bozell. Congressman, I would say that the idea I think 
is fanciful if it could happen. If it could work, it would be 
wonderful. But I believe that pigs would fly and Bono would 
stop using the ``f'' word before this happened. Look at the 
history. The industry spent years and years talking about a 
ratings system which one network, NBC, won't even put an age-
based disclaimer on there as everyone else does, and the 
industry continues to violate their own standards that they 
came up with, and nobody can do anything about it. Why? Because 
they are the ones who regulate their standards.
    So I am afraid that any kind of standards on decency 
requirements really wouldn't amount to much at this point from 
the industry. I would love to be wrong.
    Mr. Corn-Revere. I would just say that the search for some 
kind of uniform standard has been a difficult matter from the 
beginning. And the FCC has been hampered by the fact that the 
overall standard for indecency is so very general.
    Mr. Solomon is correct that in certain cases you can look 
at a particular broadcast and say--it is not plausible to say 
that you didn't know that there was difficulty.
    The problem comes up when you have those marginal cases, 
and they are becoming more and more of them, where the FCC 
makes a judgment on something where it perhaps in its first 
review of the matter didn't have sufficient merit, literary 
merit, artistic merit; and then on reflection, after 2 years, 
says, Oh, we were wrong, you can go ahead and broadcast that.
    It is a very difficult thing, coming up with a standard 
that can survive that kind of scrutiny. And you veer between 
the per se approach, which has serious flaws, and then 
something that leaves judgment to the level--to the matter of 
administrators. There has to be something better than the I-
know-what-you-are-thinking standard that Mr. Bozell mentioned 
earlier.
    Also, I think it is very dangerous when we start talk about 
matters like having a full-time office of the speech police in 
the FCC to monitor what goes on over the air. That is not the 
system we have. It is not the system envisioned by the first 
amendment. And I think that would raise serious problems too.
    Mr. Wertz. I concur. The only other concern I might address 
would be whatever this committee does, will it stand up to a 
court challenge, which unfortunately is likely to be 
forthcoming, and hopefully it will.
    Again, as a broadcaster, all we are looking for is a return 
to clear understanding of what you would like us to do. And by 
the way, I believe most of us already are doing just that.
    And as for licensees, I would just like to extend one more 
thing. XM and Sirius are both satellite broadcasters now, 
licensees by the FCC. Now, I would submit from our perspective 
that they be held to the same standard. I am not certain under 
the current rules they are.
    Mr. Gonzalez. Thank you very much.
    Mr. Upton. Thank you, Mr. Gonzalez. I have just a couple 
more questions. And if members have a couple more, we will 
continue. The House is back in session. We don't expect a vote 
for a little while.
    Mr. Wertz, I am curious to know your sense of our 
legislation, H.R. 3717. Do you think that if we are able to 
pass this, like we are going to try and do--and I am very 
grateful for the Members that have cosponsored this 
legislation, the Dear Colleague just hit Members' offices this 
morning.
    Already, Members yesterday, our first day of votes, were 
coming up to me, and we added a number last night. I am told 
that I am going to be adding a number of Members today.Chairman 
Tauzin has told me that he would like to put this on the fast 
track. So we are going to try and move it quickly.
    But do you think that if our legislation passes and we are 
able to get it to the President's desk--and the administration 
has indicated their support for the legislation in a letter 
this morning--that in fact it will put a damper and lay a 
little better framework and signal to the broadcasters of what 
is allowable and what is not, based on what--particularly what 
may or may not come from the commissioners as they review the 
Enforcement Division's decisions from a couple of months ago?
    Mr. Wertz. Absolutely. I believe it will be very 
beneficial. I support it. I am not in favor of fines, but then 
I am not in favor of the actions that been going on over the 
past few years either.
    At the same time, I would hope that we would be able to, as 
broadcasters, as a couple of Members brought this up, that we 
would be able to go back to our suppliers and be able to 
negotiate with them on content as well. Because sometimes we 
can't change what they provide to us, or they will take it away 
and give it to somebody else.
    But yes, I am in full support of the bill.
    Mr. Upton. Mr. Solomon, in listening to Mr. Bozell's 
testimony, he indicated his frustration that the FCC until 
yesterday had not gone after--with an enforcement action on a 
TV broadcaster. Indicated you all didn't have the personnel to 
look into that.
    I would like to know what your response is to what he said 
in his testimony.
    Mr. Solomon. Sure. We have probably about 20 to 25 people 
who work a substantial portion of their time in indecency. And 
I can't say off the top of my head whether any of them work 100 
percent, as opposed to 90 or 95 percent, but there is a 
significant staff that spends a lot of time on indecency, 
including myself. I am responsible for all enforcement at the 
FCC, or virtually all enforcement. And I probably spend, it 
varies, but 25 percent of my time, overall, on indecency. So it 
is a very high priority for our staff.
    In terms of TV, I think there has been an evolution in the 
kinds of complaints that we are getting. In 2003, for example, 
we received about 250,000 complaints. This is the first year 
where a majority of the complaints are about television 
programs as opposed to radio. So I think there is a shift.
    Traditionally our enforcement focused on radio, because 
that is where the complaints were. To give you an example from 
just a couple of years ago, in 2000, we had about 111 
complaints. About 85 of them were about radio. That has 
changed. Now we have many more programs from TV that are 
challenged.
    So I think you probably will be more likely to see more 
attention to TV in the future.
    Mr. Upton. What would you say to his statement in his 
testimony--and I believe Mr. Shimkus might have referenced it 
in his question as well--with regard to e-mails that may have 
been automatically blocked from going to the FCC? Is that 
accurate or not?
    Mr. Solomon. I don't really know the details. I know that 
sometimes when there are thousands coming in at once, there are 
questions about--and I am going beyond my expertise--the 
interoperability of the Web site that is sending them, et 
cetera. But I am sure that the people, particularly in our 
Consumer and Governmental Affairs Bureau that receive the e-
mails, would be happy to work with his organization to make 
sure there aren't technical problems causing their complaints 
not to come through to us.
    Mr. Upton. Mr. Corn-Revere, as I began to prepare for this 
hearing--and staff provided a very good book to look through a 
number of the situations. The title here that they Scotch-taped 
is ``Broadcast Indecency Briefing Materials.''
    I went through the entire book as I came back from Michigan 
yesterday, which is a long experience. Mr. Wertz and I actually 
left early in the morning and were fortunate to get here 
yesterday. I would say in fact when we landed, I thought we had 
gone back to Detroit because of the snow and the ice that was 
at the runway.
    And I finished the book, and I put it into the airline 
seat, into the pocket in front of me. And as I grabbed my coat 
to run to my car in the parking lot, I neglected to take it 
with me. And I didn't discover that I didn't have it until I 
got to my car. And I knew that I could not go back through 
security to get the book. And when I called Northwest--that is 
my airline that I flew--to see how I could retrieve this book, 
they sort of laughed, because they in fact had found the book 
and were a little embarrassed. I don't know if they actually 
read some of the transcripts that were in there on the 
violations, but it was pretty serious stuff.
    And I know as we talk about community standards, you know, 
I am sure that you have looked at some of their material, too, 
in terms of preparing for today, whether it was the Opie and 
Anthony Show or the Elliot in the Morning Show and some of the 
things that are in here.
    I don't know of anyone that would disagree with the FCC's 
enforcement decision. Maybe they would complain about the fine 
because it was too small; but I think anyone would say yes, 
this is more than some of the things that were discussed here.
    I mean the--I mean, as you looked at it, I think you would 
agree that this stuff is not appropriate for over-the-air 
broadcast by TV or radio with the sound effects and other 
things; is that not true? And I know you are a first amendment 
scholar. But I can't imagine that anyone would disagree with 
that.
    Mr. Corn-Revere. Well, I am also the father of four 
children, and I deal with these issues on a daily basis at home 
in a whole another capacity. So I take your point exactly.
    Mr. Upton. But you looked at it?
    Mr. Corn-Revere. Sure. Sure I have. And I think you read 
some of that stuff and you wonder what in the world was going 
on in the minds of the people who chose to broadcast this 
stuff. The point that I am trying to make is that it is 
dangerous to try and define a policy and legal standard by the 
worst examples you can find.
    Because if you draft a poor standard, then you also catch 
up in that net examples that should never have been sanctioned 
by the government. And there are a growing number of examples 
of the FCC enforcement policy that fall in that category 
because of the imprecision of the legal test.
    And there is one just technical point----
    Mr. Upton. You would not disagree with some of the stuff 
here, that the FCC didn't--you are not saying----
    Mr. Corn-Revere. I am not trying to endorse any particular 
broadcast at all.
    Mr. Upton. You have read it. Would you disagree that they 
were wrong in announcing a fine on the Opie and Anthony Show or 
the Elliot in the Morning? Did you look at the Elliot in the 
Morning transcript?
    Mr. Corn-Revere. I do not recall that example from just 
your describing it. I would have to go back.
    Mr. Upton. I can remember when we had hearings in this 
subcommittee, last year or the year before, and we had the 
recording industry here, and I guess it was in the last 
Congress because it was Mr. Largent, Steve Largent, Barbara 
Cubin, and they asked Hillary Rosen, then the Director of the 
Recording Industry Association, and they asked her if she could 
read some of the lyrics that had not been marked for parents, 
and she could not read them, and, you know, I could not, you 
know, possibly read some of this stuff that was in this in any 
type of public forum. You know, it was difficult to get through 
it yesterday as I tried to screen it from the fellow that was 
sitting next to me on the plane coming back.
    Mr. Corn-Revere. And you may have noticed, Mr. Chairman, in 
drafting my testimony I was careful to avoid using language and 
examples from cases that are constitutionally protected because 
those words do appear in those cases.
    The technical point I wanted to reach was Mr. Bozell's 
point made earlier that the FCC in his words had never, never 
fined a television station. It was a point we had discussed 
before and in fact I corrected him on the Senate side. In fact, 
the FCC had acted in the case of complaints against the 
television stations in the past.
    In 1988, it did so in a station, KZKC, in Kansas City. In 
1997 it fined a station in Roanoke, Virginia, but this gets 
back to the point that you were addressing about using those 
worst examples to define the field, because it has gone after 
television and has investigated a number of types of programs 
in the early 1990's and also investigated a public broadcast 
station for the transmission of a miniseries called The Singing 
Detective, which, incidentally, had won a Peabody Award.
    There were a few brief scenes which caused difficulty to 
the Commission. I know because I was a staff member at the time 
and was looking at this particular example.
    I think if you look at this under a rational first 
amendment test you could not possibly find that the program was 
indecent, that it lacked sufficient merit to be broadcast, and 
yet because of the investigation this program has never 
appeared on public television again or commercial television 
for that matter in the decades of investigation. So the 
standards you use and the power you bring to bear from the FCC 
is really an awesome power and limited under the first 
amendment.
    Even when you can point to examples that you think are 
absolutely clear, the standard is what is important?
    Mr. Upton. Well, that is exactly why so many Members have 
co-sponsored this legislation, because they have seen some of 
the stuff that has been fined and said: You know, it is still 
not stopping it.
    Again, some of these examples that are in here are multiple 
occurrences on different days from the same station, and 
sometimes they have received the maximum fine and yet they come 
at it again, and that is what we are trying to stop.
    Mr. Bilirakis has additional questions.
    Mr. Bilirakis. Mr. Corn-Revere, I cannot help, as you were 
telling us, that you have four children.
    Do you oftentimes or do you sometimes find yourself turning 
off the television or basically disallowing them from watching 
a particular station?
    Mr. Corn-Revere. Oh, sure, I do, as a parent. I just do not 
want Mr. Bozell as my parent.
    Mr. Bilirakis. Do they use the defense of the first 
amendment when you do that?
    Mr. Corn-Revere. No, because they know I am the dictator in 
the household.
    Mr. Bilirakis. You know, maybe I am a little hard-headed 
and I support the legislation and it is going to do some good, 
and yet, Mr. Corn-Revere, there is certainly the power, the FCC 
is there, and it is preventing a lot of these bad things from 
taking place, not all of them but some of them.
    We know there is going to be all sorts of outpouring, words 
and phrases additional, that are coming into the picture, all 
that sort of thing, and I keep wondering if maybe we should not 
place more authority in the hands of the local licensee to 
determine, because they are closer to the public; you know, if 
I contact my local broadcaster, if you will, they are more 
likely to listen to me than trying to contact the FCC, which I 
guess is already evidence that they seem to be ignoring the 
inputs there and what not.
    Mr. Corn-Revere. I do not mean for any of my comments to 
address or to diminish the level of editorial discretion that 
the local licensee should have.
    Mr. Bilirakis. Well, apparently, it is diminished and from 
a real world standpoint, but the policy says clearly: Broadcast 
licensees must assume responsibility for all material which is 
broadcast from their facilities. So they are being fined. Some 
of them are being fined, right, Mr. Solomon, the local people?
    Mr. Solomon. If you look at the statement.
    Mr. Bilirakis. How many of those cases do they come in with 
a defense, explanation, rationale, whatever you want to call 
it, to the effect that, well, my, the network has forced me to 
put this on the air, even though I do not want to do it?
    Mr. Solomon. I do not recall any such instances in our 
cases.
    Mr. Bilirakis. Anybody know anything different, different 
in that regard?
    I am told by some of these licensees, these broadcasters, 
that that is a big problem.
    Mr. Solomon. I do know there is a broader proceeding going 
on that the Commission is addressing, and I am answering it 
from my perspective in enforcement cases.
    Mr. Bilirakis. Yes, I realize your responsibility is 
enforcement.
    Yes, and I realize your responsibility is enforcement.
    Before I go on, Mr. Bozell, yes?
    Mr. Bozell. There is an example, but there are others, and 
we have heard them anecdotally, but there is a written example 
I would be happy to give you.
    Last year on Fox there was a program, Keen Eddie, which 
features a prostitute having sex with a horse.
    Mr. Bilirakis. Oh, yes, sir.
    Mr. Bozell. And that was over the airwaves.
    Or attempting to have sex, I should say. The Fox affiliate 
in Kansas city said he was forced to run that and that was not 
his responsibility.
    Mr. Bilirakis. Yes, if you could share that with us, I 
would appreciate that.
    With unanimous consent, I would ask it be made part of the 
record.
    Mr. Upton. Without objection.
    [The information referred to follows:]

                                              FOX 4
                                   WDAF-TV, Kansas City, MO
                                                      July 25, 2003
Mr. Tim Maupin
Chapter Director, Kansas City Metro Chapter
Parents Television Council
P.O. Box 22641
Kansas City, MO 64113
    Dear Mr. Maupin,
    We received your letter dated June 30, 2003 regarding the content 
of the Keen Eddie show that aired on June 10, 2003, at 8pm.
    We forwarded your letter to the FOX Network. The Network, not WDAF 
TV4, decides what shows go on the air for the FOX Owned and Operated 
Television stations.
            Sincerely,
                                        Cheryl McDonald    
                                 Vice President/General Manager    
                                                      WDAF-TV/FOX 4

    Mr. Bilirakis. Yes, sir.
    Well, I guess I am the only one. It may not be a good idea, 
I do not know. Nobody has really followed up on what my 
emphasis has been here.
    Are they not taking away or belittling what the chairman 
and Mr. Markey and what the most of the rest of us who have co-
sponsored legislation want to do; but I think we are also 
coming to a consensus that there are going to continue to be 
problems, because that in itself is not going to cover 
everything that may come out of the woodwork.
    Mr. Bozell. Congressman, may I make a good point here?
    Mr. Bilirakis. Yeah.
    Mr. Bozell. You do not want to come in with this with a 
rifle and do it so fine-tuned that you lose the spirit of what 
you are trying to do. According to the letter of the law, not a 
single thing we discussed today is obscene, when everyone in 
this room knows that everything we have been discussing is 
having to do with obscenities. Yet the way the law is written 
none of it is obscene.
    Mr. Bilirakis. If the local licensee were not forced, 
basically, in order to stay in business, to go along with the 
contracts by the networks, which would basically place them in 
the fear of maybe losing their, you know, affiliation, if they 
did not go along with it, could that take care of some of the 
problem?
    Mr. Bozell. I think, yes, because at that point you have 
got a community standard.
    Mr. Bilirakis. Right.
    Mr. Bozell. You have got the community which would be able 
to voice itself with the station and the station could in turn 
react. I think it would be a positive influence.
    Mr. Bilirakis. Mr. Corn-Revere.
    Mr. Corn-Revere. Certainly, anything that increases 
licensees' editorial discretion.
    Mr. Bilirakis. Mr. Wertz, I think you have already 
indicated you would like to be able to have that type of 
freedom, if you will.
    Mr. Wertz. We actually had a case that addresses directly 
what you are talking about. We were affiliated with the 
network. A sports show was on an afternoon drive of one of our 
stations, and this was the Super Bowl in San Diego. The talent 
had a prostitute on, talked about all the different people that 
she had had at San Diego and not specific acts per se but 
pretty close, and we ended our relationship with the network 
over it because they refused to back down, and we wound up with 
what some people could consider--and I among them--a lesser 
network at that moment, but we did it based on our principles, 
that that just did not play in Kalamazoo.
    Mr. Bilirakis. Well, I certainly commend you for that.
    All right, thank you very much.
    Thanks, Mr. Chairman.
    Mr. Upton. Mr. Wertz, I want you to know that Mr. Bilirakis 
is also a Cubs fan.
    Mr. Wertz. Yes, they were very good for us this past fall.
    Mr. Upton. So is Mr. Engel when he does not have to root 
for the Mets or the Yankees, and I would just acknowledge for 
those members who were not able to be present today I would ask 
unanimous consent that all members of the subcommittee have an 
opportunity to submit an opening statement and in their 
absence, Mr. Engel, I address you.
    Mr. Engel. I am not going to ask any questions, Mr. 
Chairman. I just want to ask unanimous consent to put in the 
record, but I want to say I admire Bono for the good work he 
has done to highlight poverty, hunger and AIDS in Africa, he is 
a very talented musician, he has shown himself to be bright and 
capable, but he should know better than to use curse words on 
national television, and I also just want to say that I am very 
encouraged to learn that the broadcast networks are adopting 
the 7-second delay or longer when showing a live program. I 
think that is a good step, and I understand members of the 
industry are calling for an industrywide effort to design and 
adopt indecency guidelines for all broadcasters, and I think 
that is good too.
    I have read the testimony. I found it fascinating that Mr. 
Wertz pointed out that in the 1950's the cast of I love Lucy 
could never use the word ``pregnant'' but only words such as 
expectant. I am dating myself, that is my all time favorite 
program, but I commend you, Mr. Chairman, for holding this 
hearing and I know that we on this committee take this very, 
very seriously and are going to be doing everything we can to 
come out with an acceptable way of dealing with this problem, 
and again I ask unanimous consent for my testimony, and I yield 
back my time.
    [The prepared statement of Hon. Eliot Engel follows:]

 Prepared Statement of Hon. Eliot Engel, a Representative in Congress 
                       from the State of New York

    Thank you Mr. Chairman:
    When my staff told me about this hearing and the reasons behind it, 
I really started to think. I thought about the impact that popular 
figures can have on our children. I thought about the fact that what 
popular figures say and do can sometimes have an extraordinary impact 
on our children. Now, there are moments when I delude myself into 
believing that I am the biggest influence on my children. And, I know 
that in fact I certainly am an important influence. But, between the 
media and peer pressure, it isn't being a kid today. It's not easy 
being a parent either.
    I, for one, admire Bono for the good work he has done to highlight 
poverty, hunger and AIDS in Africa. He is also a very talented 
musician. He's shown himself to be a bright and capable man. So he 
should know better than to use curse words on national television.
    I am encouraged to learn that the broadcast networks are adopting a 
7 second delay or longer when showing live programming. I also 
understand that members in the industry are calling for an industry 
wide effort to design and adopt indecency guidelines for all 
broadcasters--radio and television. These are two strong steps that 
industry should and can take.
    I also want to point out that I believe that the violence on 
television seems to get a greater ``pass'' than sexual content. We seem 
to tolerate violence more than we do sexual content. This really 
disturbs me.
    I am very aware that we must tread lightly. The First Amendment's 
guarantee of freedom of speech is vital to our democracy. People are 
going to have differing views on many issues. For example, as I said, I 
object to the violence on televison. And I know that Parents Television 
Council objects too. I appreciate that PTC has done research to show 
the rate of violence our children are exposed to.
    However, Mr. Bozell's other organization, the Media Research 
Center, has also consistently campaigned against what he says is the 
media's ``attempt to legitimize homosexuality.'' I disagree 100 
percent. I have gay friends. They visit my home and eat at my table 
with my children. I want my children to know that being gay is ok, if 
that is what you are. I want them to know that gay and lesbian people 
hold jobs, pay taxes, and have families too.
    So I am conscious that there will always be disagreements as to 
what is appropriate. As is pointed out in Mr. Wertz's testimony--that 
in the 1950's, the cast of ``I Love Lucy'' could not use the word 
pregnant--but only words like expecting. I can't imagine there is a 
person in this room who finds the word pregnant offensive. This just 
goes to show that our standards--our ``contemporary community 
standards''--are always changing and we should be loathe to try and set 
standards for 2040 in 2004.
    Who knows? In 2040--calling someone a Luddite could be considered 
very offensive!
    Mr. Chairman, the guarantee of freedom of speech is a powerful tool 
for us to use to insure that all views have an opportunity to be 
expressed. But, it can also mean that people will hear and see things 
they don't like or agree with or like.
    It isn't an easy balance.
    But, then again, Democracy should not be easy.
    I yield back.

    Mr. Upton. Without objection, I recognize the gentleman 
from Texas for questions, Mr. Green.
    Mr. Green. Mr. Chairman, I understand that a lot of the 
questions I was going to ask concern about I think we do need 
to have some guidelines and I think most of us philosophically 
would like the industry to put it together if we could, and I 
think, as Congress, maybe to satisfy the Justice Department, we 
might need to be more active in it; ultimately some type of 
statute, but again I am glad that that is what the testimony 
has shown, and again, from what I understand, the questions 
from both my Republican and Democratic colleagues, so I look 
forward to moving along and seeing how we can deal with some of 
the issues not only on this legislation but also on the major 
issue of obscenity on the airwaves.
    Thank you.
    Mr. Upton. Thank you.
    I want to reiterate my thanks to you as well for being a 
cosponsor of the legislation, so with that our time is 
concluded. I appreciate very much the testimony by all four of 
you. We look forward to your further input for sure as we look 
at this legislative process.
    God bless.
    [Whereupon, at 1:27 p.m., the subcommittee was adjourned.]
    [Additional material submitted for the record follows:]

   Prepared Statement of Frank Wright, President, National Religious 
                              Broadcasters

    My name is Frank Wright and I serve as president of the National 
Religious Broadcasters, the largest association of Christian 
communicators in the world. My written testimony is supplied on behalf 
of our more than 1500 member organizations to encourage Congress to 
affirmatively address the rampant and growing problem of indecent 
speech on the airwaves.
    At the outset let me be clear that as the head of an association 
representing broadcasters, I am keenly aware of the concerns relating 
to censorship. Since the heart of our members' mission is to share the 
life-changing Gospel of Jesus Christ, we know that the censorship sword 
cuts both ways. When any one interest group can determine what is 
appropriate for the populace at large, the very essence of democracy 
and freedom in our nation is at risk.
    Having said that, it is important to note that our First Amendment 
rights to free speech have never been absolute. One cannot, for 
example, shout ``Fire!'' in a crowded theater because of the potential 
risk of injury or loss of life from an ensuing panic. One cannot commit 
treason by communicating important national security information to 
hostile nations and afterward claim First Amendment freedoms. Neither 
can one commit libel or slander and justify such damaging 
communications by claiming constitutional protection.
    Regarding matters of indecency, the United States Supreme Court has 
also carved out an exception to First Amendment concerns because of the 
very real threat to the welfare of our nation's children. For this 
reason, while we must tread very lightly on this subject, there are 
certain standards respecting what children should not have to hear that 
we as an entire people hold in common, and which the United States 
Supreme Court has affirmed as constitutional. It is in this light that 
I submit my testimony to the subcommittee.

                   I. BACKGROUND: INDECENCY DEFINED.

    Congress gave the FCC the authority to police the airwaves and 
uphold community standards. According to Title 18, Section 1464, of the 
United States Code, ``any obscene, indecent or profane language'' is 
prohibited for mass communication via radio.1 Also, Title 
47, Section 73.3999, of the Code of Federal Regulations states, ``no 
licensee of a radio or television broadcast station shall broadcast on 
any day between 6 a.m. and 10 p.m. any material which is indecent.'' 
2
---------------------------------------------------------------------------
    \1\ 18 U.S.C.  1464.
    \2\ 47 C.F.R.  73.3999.
---------------------------------------------------------------------------
    In 1975, the FCC found that ``obnoxious, gutter language . . . 
[has] no place on radio when children are in the audience.'' 
3 The Commission went on to define indecency as
---------------------------------------------------------------------------
    \3\ In the Matter of a Citizen's Complaint against Pacifica 
Foundation, 32 RR 2d 1331, 1336,  11 (1975).
---------------------------------------------------------------------------
        ``. . . intimately connected with the exposure of children to 
        language that describes [or depicts], in terms patently 
        offensive [sic] as measured by contemporary community standards 
        for the broadcast medium, sexual or excretory activities and 
        organs, at times of the day when there is a reasonable risk 
        that children may be in the audience.'' 4
---------------------------------------------------------------------------
    \4\ In the Matter of Pacifica Foundation, 32 RR 2d at 1336,  11.
---------------------------------------------------------------------------
    Unfortunately, after establishing an important and helpful standard 
and making a commitment to protect the welfare of innocent children, 
the FCC almost immediately began to back away from its own standard. In 
1976, one year later, the Commission began backpedaling from its own 
standard to cater to broadcasters, stating it would be ``inequitable 
for us to hold a licensee responsible for indecent language'' during 
live broadcasts.5
---------------------------------------------------------------------------
    \5\ Memorandum Opinion and Order, In the Matter of a Petition for 
Clarification or Reconsideration of Pacifica Foundation, 36 RR 2d 1008 
(1976).
---------------------------------------------------------------------------
    Since that time, the FCC has eroded its own standard by adding yet 
more criteria to test whether broadcasts cross the threshold of 
indecency:
        ``(1) the explicitness or graphic nature of the description or 
        depiction of sexual or excretory organs or activities; (2) 
        whether the material dwells on or repeats at length 
        descriptions of sexual or excretory organs or activities; (3) 
        whether the material appears to pander or is used to titillate, 
        or whether the material appears to have been presented for its 
        shock value.'' (emphasis in original) 6
---------------------------------------------------------------------------
    \6\ See Policy Statement, In the Matter of Industry Guidance on the 
Commission's Case Law Interpreting  1465 and Enforcement Policies 
Regarding Broadcast Indecency, 16 FCC Rcd 7999 (2001).
---------------------------------------------------------------------------
    By making the definition of indecency sound more like obscenity, 
the Commission has set the indecency bar unnecessarily high, making 
infractions more difficult to prove and thus more difficult to punish.

 II. INDECENCY COARSENS SOCIETY AND TEACHES CHILDREN THAT MORALITY IS 
                      IRRELEVANT TO WHAT THEY SAY.

    Indecency standards are worth enforcing because publicly 
broadcasting such words when there are children likely in the audience 
dramatically coarsens our society. Permitting indecent speech on the 
airwaves teaches children that there are no limits on improper speech. 
It desensitizes the culture to what is detrimental and unacceptable. As 
a result, we have confused children, told they cannot say certain words 
at school and other places, only to hear them repeated on the radio or 
television.
    When families cannot sit down to watch a program together during 
the so-called ``Family Hour'' without hearing indecencies, we know 
there is a problem with our broadcasting standards. If the FCC were 
serious about enforcing those standards, then we wouldn't have such a 
problem. Some have even suggested that the continual drone of profanity 
on our airwaves can also lead to a reduction of civility in society, 
leading to violence and the loss of moral values.7 As 
newspapers daily document our culture's violent crimes and lack of 
morality, we can see that there is at least a correlation between 
indecent speech and incivility.
---------------------------------------------------------------------------
    \7\ Parents Television Council, ``The Blue Tube: Foul Language on 
Prime Time Network TV,'' (September 15, 2003), http://
www.parentstv.org/PTC/publications/reports/stateindustrylanguage/
main.asp.
---------------------------------------------------------------------------
    C.S. Lewis, the Christian philosopher, stated that profanity is 
degrading to us as people because it describes our actions in 
animalistic terms. Our culture's ideals should be encapsulated in our 
art (e.g., film, radio, TV, Internet, etc.); our art ought not reduce 
us to less than we are.
    Part of childrearing involves teaching children what is acceptable 
and what is not. If we cannot consistently teach them what they should 
or should not say, then how will we teach them what they should or 
should not do?

  III. THE FCC ALREADY HAS A CONSTITUTIONAL STANDARD FOR DETERMINING 
                            INDECENT SPEECH.

    On October 30, 1973, a New York radio station owned by Pacifica 
Foundation broadcast comedian George Carlin's previously recorded 
monologue ``Filthy Words'' at approximately 2:00 p.m. A father and his 
young son heard the broadcast and filed a complaint. On February 21, 
1975, the FCC ruled administrative sanctions could be imposed on 
Pacifica. On July 3, 1978, the United States Supreme Court upheld the 
FCC, in part, because of the nature of the medium involved.
    First, the Court found in FCC v. Pacifica Foundation that 
broadcasting has ``a uniquely pervasive presence'' in modern-day life. 
Since it found Americans have a right to privacy within their own 
homes, the content of the broadcast medium ought to be controlled, in 
spite of the potential for First Amendment concerns. If someone were to 
miss content warnings at the beginning of a program, he or she could 
unwittingly tune in and hear something they would ordinarily not have 
willingly brought into their home.8
---------------------------------------------------------------------------
    \8\ FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
---------------------------------------------------------------------------
    Second, the Court determined that broadcast medium is ``uniquely 
accessible to children, even those too young to read.'' Since children 
might easily hear indecency on the airwaves during the afternoon (and a 
young boy did in the instance of the Pacifica case), the Court took 
special notice.9
---------------------------------------------------------------------------
    \9\ Ibid.
---------------------------------------------------------------------------
    Since the FCC's 1975 policy was declared constitutional, the 
Commission ought to state emphatically in its rulings that Americans 
have a right to be free from indecency in their homes, when children 
may be in the audience.

  IV. THE FCC'S RETREAT FROM ITS OWN STANDARD TELLS BROADCASTERS THAT 
                   THEY CAN SAY ANYTHING ON THE AIR.

    Since the FCC has not consistently followed its own policy, 
broadcasters will continue to push the envelope to boost ratings. This 
has prompted FCC Commissioner Michael Copps to frequently describe 
broadcasters' actions as a ``race to the bottom.'' 10
---------------------------------------------------------------------------
    \10\ See Separate Statement of Michael J. Copps, Dissenting, In the 
Matter of Infinity Broadcasting Operations Inc., Licensee of Station 
WKRK-FM, Detroit, Michigan, Notice of Apparent Liability for 
Forfeiture, File No. EB-02-IH-0109, (December 8, 2003), http://
hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-302A5.html. See 
Separate Statement of Michael J. Copps, Dissenting, In the Matter of 
Infinity Broadcasting Operations, Inc.; Infinity Radio Operations, 
Inc.; Infinity Radio Subsidiary Operations, Inc.; Infinity Broadcasting 
Corporation of Dallas; Infinity Broadcasting Corporation of Washington, 
D.C.; Infinity Holdings Corporation of Orlando; Hemisphere Broadcasting 
Corporation, Notice of Apparent Violation for Forfeiture, EB-02-IH-
0685, (October 2, 2003), http://www.fcc.gov/eb/Orders/2003/FCC-03-
234A1.html.
---------------------------------------------------------------------------
    In just four years, from 1998 to 2002, profanity increased on 
nearly all television networks during essentially all of the prime time 
viewing hours. During the Family Hour, incidents of indecent and 
obscene speech rose by 94.8%, and in the 9:00 p.m. time slot by 109.1%. 
Interestingly, the 10:00 p.m. hour, when small children would be least 
likely to watch, reported the smallest increase in foul 
language,11 possibly because that timeslot's standards had 
already fallen so low.
---------------------------------------------------------------------------
    \11\ Parents Television Council, ``The Blue Tube.''
---------------------------------------------------------------------------
    Within the past two years, the New York radio program ``Opie & 
Anthony'' broadcasted reports describing sexual acts performed in or 
near St. Patrick's Cathedral. In January 2003, NBC affiliates broadcast 
the f-word unbleeped during the Family Hour. Then just in December, the 
f-word aired again during a live prime time awards broadcast.
    Unless the FCC resolutely pursues indecency and levies punishments 
to discourage it, broadcasters will feel emboldened to slide even 
further into the gutter. The current fine structure, levied by the FCC, 
is treated simply as a cost of doing business. The fines are not viewed 
as punitive actions, but merely as indecency-licensing fees.
    FCC Commissioner Copps has frequently dissented from FCC 
disciplinary rulings involving monetary forfeitures by saying that they 
do not go far enough. He has recommended holding hearings on revoking 
licenses from broadcasters for consistent and egregious 
violations.12
---------------------------------------------------------------------------
    \12\ See Copps Dissenting Statement, Re: Infinity Broadcasting 
Operations, Inc., Notice of Apparent Liability for Forfeiture, File No. 
EB-02-IH-0109, (December 8, 2003), http://hraunfoss.fcc.gov/
edocs_public/attachmatch/FCC-03-302A5.html.
---------------------------------------------------------------------------
    There is no standing still. The current level of indecency on the 
airwaves will not stay the same but will increase, absent consistent 
enforcement by the FCC.

  V. THE FCC MUST RETURN TO TOUGHER STANDARDS AND ASSERT ITS ROLE AS 
                    DEFENDER OF THE PUBLIC INTEREST.

    In order to prevent the downward slide in what is acceptable over 
the airwaves, the FCC must return to the standard it established--the 
Pacifica standard. By so doing, it can take its rightful place as the 
defender of the public interest.
    Commissioner Copps has repeatedly lamented that the agency has done 
little to counteract indecency on radio and television.13 I 
am encouraged that numerous Members of Congress over the past few 
months have condemned the FCC's ruling on last year's NBC Family Hour 
broadcast of the Golden Globe Awards program, in which musician Bono 
used the f-word twice on national television.14 Last 
December, NRB worked with the other chamber to write language for S. 
Res. 283, which was adopted by the full Senate on December 9th. That 
Sense of the Senate Resolution called on the FCC to ``return to 
vigorously and expeditiously enforcing its own United States Supreme 
Court-approved standard for indecency in broadcast media.''
---------------------------------------------------------------------------
    \13\ Ibid.
    \14\ Larry Wheeler, ``Congressman joins attack on agency's f-word 
ruling,'' Gannett News Service, November 27, 2003; Associated Press, 
``Bill would ban some swear words from radio, TV,'' December 16, 2003.
---------------------------------------------------------------------------
    Last week, it appears that FCC Chairman Michael Powell bowed to 
congressional pressure, and public outcry, when he abruptly changed 
course and recommended that the FCC commissioners reverse the agency's 
Enforcement Bureau's Golden Globe decision.15 He also called 
on Congress to increase fines tenfold for future indecency 
violations.16 In quick response, the Chairman of this 
subcommittee, Representative Fred Upton, introduced H.R. 3717, the 
Broadcast Decency Enforcement Act of 2004, to codify that increase.
---------------------------------------------------------------------------
    \15\ Jonathan D. Salant, ``FCC Chairman wants to overturn decision 
on expletive aired in NBC broadcast,'' Associated Press, January 14, 
2004.
    \16\ Jonathan D. Salant, ``FCC head wants bigger fines for 
profanity,'' Associated Press, January 15, 2004.
---------------------------------------------------------------------------
    Increasing fines is a critical first step. Yet we also submit that 
the airwaves will not ultimately be transformed until the FCC changes 
the way it thinks about enforcement. The Commission should increase 
fines and return to the Pacifica standard if the airwaves are to meet a 
higher content standard and protect our children. In 1975 when the 
Commission took the stand, it didn't know for certain that the Court 
would uphold Pacifica. When it did, the high court gave the FCC a firm 
place to stand. Since then, by the FCC's own admission, ``The federal 
courts consistently have upheld Congress' authority to regulate the 
broadcast of indecent speech, as well as the Commission's 
interpretation and implementation of the governing statute.'' 
17 So let us do both.
---------------------------------------------------------------------------
    \17\ In the Matter of Complaints Against Various Licensees 
Regarding Their Airing of the ``Golden Globe Awards'' Program, EB-03-
IH-0110, (October 3, 2003), http://www.fcc.gov/eb/Orders/2003/DA-03-
3045A1.html.
---------------------------------------------------------------------------
    The FCC appears reluctant to assert their authority, not wanting to 
take any action until prompted by Congress. If that is what it takes, 
then so be it. In the words of Commissioner Copps,``[t]he time has come 
for us to send a message that we are serious about enforcing the 
indecency laws of our country and that we will be especially vigilant 
about the actions of repeat offenders.'' 18 What is needed 
here more than any other single thing is bold leadership. That is why 
we applaud Representative Upton for the important first-step of 
introducing legislation to increase fines, and for holding this hearing 
to draw attention to this critical issue. We also applaud the actions 
of other subcommittee members, like Representative Pickering, who has 
introduced a House resolution that is very similar to the one passed by 
the Senate.
---------------------------------------------------------------------------
    \18\ See Copps Dissenting Statement Re: Infinity Broadcasting 
Operations, Inc.; Infinity Radio Operations, Inc; Infinity Radio 
Subsidiary Operations, Inc.; Infinity Broadcasting Corporation of 
Dallas; Infinity Broadcasting Corporation of Washington, D.C.; Infinity 
Holdings Corporation of Orlando; Hemisphere Broadcasting Corporation, 
Notice of Apparent Violation for Forfeiture, EB-02-IH-0685 (October 2, 
2003), http://www.fcc.gov/eb/Orders/2003/FCC-03-234A1.html.
---------------------------------------------------------------------------
    Overall, there is a sense of agreement in both houses on this 
issue: indecency on the airwaves is unacceptable. The time is right to 
hold the FCC to a higher standard of enforcement. The over 1500 
organizations represented by the National Religious Broadcasters thank 
Representative Upton for holding this hearing, and we encourage the 
subcommittee to look into this matter further and exert the kind of 
bold leadership needed at this critical juncture. If the FCC will not 
willingly enforce their own constitutionally-approved indecency 
standard, then perhaps Congress needs to statutorily require them to do 
so.
                                 ______
                                 
                      U.S. House of Representatives
                           Committee on Energy and Commerce
                                                   January 27, 2004
Mr. Alex Wallau
President
ABC Television Network
47 West 66th Street
New York, New York 10023
    Dear Mr. Wallau: As you may be aware, during recent live broadcasts 
on the NBC and FOX television networks, use of language that most 
Americans would consider indecent, profane, or both was broadcast 
unedited to millions of American homes. I am referring to NBC's live 
broadcast of the Golden Globe Awards on January 19, 2003, and to FOX's 
live broadcast of the 2003 Billboard Music Awards on December 10, 2003. 
Both of these broadcasts occurred during a viewing period in which the 
Federal Communications Commission (FCC) has determined that children 
are likely to be watching television.
    Since that time, the FCC has been asked to determine whether the 
NBC and FOX broadcasts were indecent, as a matter of law. In the case 
of the Golden Globe Awards, the FCC has determined that the broadcast 
was not indecent, and the agency is still investigating complaints 
related to the FOX broadcast. However, in my mind, whether the remarks 
in question fall within the FCC's narrow reading of the definition of 
indecency is not the core issue. No matter how the FCC rules on the 
pending complaints, a more important question is how the FOX and NBC 
television networks permitted such objectionable language to be 
broadcast to millions of American homes.
    Though neither of these broadcasts involved the ABC network, I 
would still appreciate answers to the following questions in order to 
better inform the Congress as to industry practices:

1. Does the ABC Television Network believe that it is acceptable to 
        transmit programming--live or otherwise--that contains the ``f 
        word'' or similarly objectionable language? Does the network 
        believe that it has a responsibility to its viewers to prevent 
        such broadcasts?
2. What preventive mechanisms and procedures does ABC presently have in 
        place to ensure that obscene, indecent, or otherwise 
        objectionable language is not transmitted to ABC broadcast 
        stations?
3. Legislation has been introduced in the House, H.R. 3717, which would 
        increase by ten-fold the monetary penalty that the FCC can 
        impose upon licensees that broadcast programming which contains 
        obscene, indecent, or profane content. Do you support such 
        legislation? If so, why? If not, why not?
4. The FCC has recently indicated that it may begin to impose monetary 
        penalties per utterance rather than per broadcast program upon 
        licensees that broadcast obscene, indecent, or profane content. 
        Do you support such a change in the agency's enforcement 
        policy? If so, why? If not, why not?
5. The FCC has also recently indicated that, for certain licensees that 
        repeatedly violate its indecency rules, it may begin to seek 
        the revocation of the repeat offenders licenses rather than 
        simply continue to impose fines. Do you support such a change 
        in enforcement policy? If so, why? If not, why not?
    As you may be aware, the Subcommittee on Telecommunications and the 
Internet plans to conduct a hearing on the subject of broadcast 
indecency tomorrow, January 28, 2004. I would appreciate if you could 
respond to this letter on or before Tuesday, February 3, 2004, and I 
will ask that your answers be included in the hearing record. If you 
have any questions, please contact me, or have your staff contact Gregg 
Rothschild, Minority Counsel, at 202-226-3400.
            Sincerely,
                                            John D. Dingell
                                                     Ranking Member
cc: The Honorable W.J. ``Billy'' Tauzin, Chairman
   Committee on Energy and Commerce
                                                   February 3, 2004
The Honorable John D. Dingell
Ranking Member
Committee on Energy and Commerce
U.S. House of Representatives
Washington, D.C. 20515-6115
    Dear Mr. Dingell: This letter is in response to your letter asking 
ABC to answer several questions regarding broadcast indecency.
    At the outset, we want to emphasize that ABC takes very seriously 
its responsibility to its audience. As discussed in more detail below, 
ABC considers and reviews very carefully the content of its 
programming.
    In response to your first question, ABC believes that the ``f-
word'' is not appropriate for network programming in almost any 
circumstance. We note, however, that the ``f-word'' was included in 
ABC's network broadcast of the Academy-Award Winning film ``Saving 
Private Ryan,'' in which the word was uttered a number of times as a 
profanity by soldiers at war. Because of the special nature and quality 
of the film, ABC decided to retain this language in its airing of 
``Saving Private Ryan,'' but proceeded the broadcast with an extensive 
advisory and parental warning about language and violence and repeated 
the warning at several points within the broadcast.
    Your second question asks about ABC's preventative mechanisms and 
procedures. ABC's preventative mechanisms are extensive. Specifically, 
ABC has a Broadcast Standards and Practices Department, headed by a 
Senior Vice President with twenty years of television experience and 
composed of 24 professionals who are responsible for the review and 
acceptance of all ABC primetime entertainment programming. ABC's 
Broadcast Standards staff works with creative personnel throughout the 
entire prime-time program development process, from inception all the 
way through to the on-air broadcast of entertainment programming. 
Broadcast Standards editors are assigned to specific ABC scripted 
entertainment programs and, in this role, they read, review and issue 
notes of each draft of the script for each episode. A Broadcast 
Standards editor also is on set or location during the live or taped 
production of comedy, reality, specials and awards shows.
    Rough cuts of taped prime-time entertainment programming are 
reviewed and, when necessary, revised prior to broadcast. Acquired 
theatrical films are reviewed and where necessary revised prior to 
broadcast. Live prime-time entertainment programming is subject to a 
delay mechanism staffed by experienced Broadcast Standards editors.
    With respect to your last three questions, we want to assure you 
that ABC is committed to complying with all indecency rules adopted and 
articulated by Congress and the Federal Communications Commission, 
regardless of the magnitude of the available sanctions.
            Sincerely,
                                     Alex Wallau, President
                                             ABC Television Network
cc: The Honorable W.J. ``Billy'' Tauzin, Chairman
   Committee on Energy and Commerce
                                 ______
                                 
Prepared Statement of Mr. Patrick J. Vaughn, General Counsel, American 
                        Family Association, Inc.

    Much of the raunchy material on television and radio today is the 
fruit of the FCC's lax enforcement policy concerning broadcast 
indecency.
    The Federal Communications Commission (FCC) is charged with 
enforcement of the law banning broadcasts of obscenity, indecency, and 
profanity. 18 U.S.C.  1464, (``[W]hoever utters any obscene, indecent, 
or profane language by means of radio communication shall be fined not 
more than $10,000 or imprisoned not more than two years, or both.'') 
The FCC has not adopted regulations to implement this statute. Instead, 
the Commission has adopted a Policy Statement that sets forth an 
extremely narrow definition of indecency, completely ignores profanity, 
and places such a high documentation burden on anyone attempting to 
file an indecency complaint that most are rejected by the FCC without 
the station becoming aware that a complaint has been filed. Policy 
Statement, In the Matter of Industry Guidance On the Commission's Case 
Law Interpreting 18 U.S.C.  1464 and Enforcement Policies Regarding 
Broadcast Indecency, FCC 01-90, 2001.
    The American Family Association, Inc. (AFA) recommends that 
Congress instruct the FCC to (1) Adopt a more comprehensive definition 
of broadcast indecency; (2) Enforce the statutory ban on broadcast 
profanity; (3) Reform its enforcement practices so that indecency and 
profanity complaints receive the same level of investigation as other 
types of complaints.
1. The law protecting minors from the broadcast of obscenity, 
        indecency, and profanity is constitutional.
    Of all forms of communication, broadcast speech is entitled to the 
most limited First Amendment protection. FCC v. Pacifica Foundation, 
438 U.S. 726, 748 (1978). The Supreme Court has stated a variety of 
reasons that justify broadcasting's lower level of constitutional 
protection, including the fact that the broadcasting media confront 
citizens in ``the privacy of the home, where the individual's right to 
be left alone plainly outweighs the First Amendment rights of an 
intruder,'' and that ``because the broadcast audience is constantly 
tuning in and out, prior warnings cannot completely protect the 
listener or viewer form unexpected program content.'' Ginsberg v. New 
York, 390 U.S. 629 (1968). Therefore, the FCC can appropriately 
regulate offensive broadcasts, even when they do not sink to the level 
of criminal obscenity. FCC v. Pacifica Foundation, at 750-751 (``when 
the Commission finds that a pig has entered the parlor, the exercise of 
its regulatory power does not depend on proof that the pig is 
obscene.'').
    The courts have found a compelling Government interest in 
restricting offensive broadcasts to (1) support parental supervision of 
children, and to (2) protect children's physical and emotional well-
being, as well as their ethical and moral development. ACT III, at 661, 
662 (citing, Ginsberg at 641). The DC Circuit Court of Appeals has 
reaffirmed that ``the `channeling' of indecent broadcasts to the hours 
between midnight and 6:00 a.m. would not unduly burden the First 
Amendment.'' Action for Children's Television III, 58 F. 3d 654, 656 
(1995).
    Given this statutory mandate, which falls with constitutional 
authority, how has the FCC gone about enforcing the prohibition against 
the broadcast of obscenity, indecency, and profanity?
2. The FCC's current definition of indecency misses a lot of material 
        that is bad for kids.
    Addressing the last point first, FCC policy totally ignores the 
statutory ban on the broadcast of profanity. To define broadcast 
indecency, the FCC uses a two prong test: (1) ``the material must 
describe or depict sexual or excretory organs or activities''; and (2) 
``the broadcast must be patently offensive as measured by contemporary 
community standards for the broadcast medium.'' Policy Statement, at  
7, 8. Applying this test, David H. Solomon, the Chief of the FCC 
Enforcement Bureau, found that broadcast of the word ``f*cking'' during 
the broadcast of the 2003 Golden Globe Awards did not fit the 
definition. Solomon ruled:
          As a threshold matter, the material aired during the ``Golden 
        Globe Awards'' program does not describe or depict sexual and 
        excretory activities and organs . . . Indeed, in similar 
        circumstances we have found that offensive language used as an 
        insult rather than as a description of sexual or excretory 
        activity or organs is not within the scope of the Commission's 
        prohibition of indecent program content.
          Moreover, we have previously found that fleeting and isolated 
        remarks of this nature do not warrant Commission action. Thus, 
        because the complained-of material does not fall within the 
        scope of the Commission's indecency prohibition, we reject the 
        claims that this program content is indecent, and we need not 
        reach the second element of the indecency analysis.
Complaints Against Various Broadcast Licensees Regarding Their Airing 
of the ``Golden Glove Awards'' Program, FCC File No. EB-03-IH-0110 at 
 5, 6 (2003).
    This ruling highlights the excessive narrowness of the FCC's 
definition of indecency. It becomes apparent that the FCC has failed to 
enforce the law when you measure its ``Golden Globe'' decision against 
the Government's compelling interest in restricting offensive 
broadcasts to (1) support parental supervision of children, and to (2) 
protect children's physical and emotional well-being, as well as their 
ethical and moral development. See ACT III, at 661, 662.
    Although the FCC has adopted an extremely narrow range of subject 
matter that it will evaluate for indecency, even within that narrow 
range, broadcasts to children of the depiction of sexual or excretory 
organs or activities may be acceptable to the FCC in many cases. The 
Commission defines the patently offensive standard to refer to the 
standards of an average national broadcast viewer. Id. Although the 
FCC's use of a national standard for what is patently offensive, 
imposes the morals of New York City or Los Angeles on every community, 
the FCC's standard of what is offensively indecent has a far worse 
flaw. The FCC's ``average broadcast viewer'' standard applies an adult 
standard to law that is designed to protect children. The Commission 
has lost sight of the fact the constitutional justification of the 
broadcast indecency prohibition is to protect children from material 
that would be harmful to their physical and emotional well-being, as 
well as their ethical and moral development. See ACT III, at 661, 662.
    Further, the Commission has plunged its indecency regulations into 
a relativistic quagmire by stating:
          [T]he full context in which the material appeared is 
        critically important . . . Moreover, contextual determinations 
        are necessarily highly fact-specific, making it difficult to 
        catalog comprehensively all of the possible contextual factors 
        that might exacerbate or mitigate the patent offensiveness of 
        particular material.
Id. at  9. First, the FCC's fuzzy policy regarding ``full context'' 
ensures that there are no bright-line rules. Undoubtedly, material that 
is indecent in a teen sitcom might appropriately be covered in an 
educational broadcast of an anatomy class or on a National Geographic 
special. However, the vagaries of the FCC's full context doctrine 
encourages broadcasters who want to pander to young audiences by being 
``edgy'' to include more and more indecent or profane material, but 
``in context.''
    Second, the full context doctrine overlooks the fact that one of 
the constitutional justifications for the regulation of broadcast 
speech is ``because the broadcast audience is constantly tuning in and 
out, prior warnings cannot completely protect the listener or viewer 
from unexpected program content.'' Ginsberg v. New York, 390 U.S. 629 
(1968). Full context does not rescue a channel surfer.
    Finally, the FCC has used its ``full context'' doctrine to impose 
insurmountable burdens on anyone attempting to file an indecency 
complaint.
3. The FCC's foot dragging regarding broadcast indecency is most 
        apparent in the way it has handled complaints filed by the 
        public.
    Many complaints are returned unprocessed. It is the FCC's current 
practice to refuse to process a citizen's complaint about broadcast 
indecency unless the complainant happens to have, ``a full or partial 
tape or transcript or significant excerpts of the program.'' Policy 
Statement, at  24. A dad driving his kids to school, who is shocked by 
indecency while tuning across the radio dial cannot provide such 
documentation. Few people startled by an offensive incident in a 
television program have a tape or transcript of the program. The courts 
have cited the fact that broadcast indecency normally catches the 
audience unawares as a basic justification for Government regulation in 
this area. See Ginsberg v. New York, 390 U.S. 629 (1968). In contexts 
other than indecency, the FCC employs standard investigatory 
procedures. The complainant reports what they saw or heard and the FCC 
requires the broadcaster to state under oath whether or not it had 
aired the material that was the subject of the complaint. By placing an 
insurmountable burden for documentation on indecency complaints, (1) 
the FCC has discouraged the public from filing broadcast indecency 
complaints, and (2) the FCC has shielded broadcasters from indecency 
complaints.
    To illustrate the tools at the FCC's disposal to investigate a 
complaint regarding something broadcast, I have attached as Exhibit 1 a 
copy of an investigatory letter that AFA recently received after one of 
its noncommercial stations aired a wrongly worded underwriting 
acknowledgment. Mea culpa. Letter from William D. Freedman, Deputy 
Chief, Investigations & Hearings Division, Enforcement Bureau, Federal 
Communications Commission, to American Family Association, Licensee 
Station WAEF(FM), EB-03-IH-0427, December 1, 2003. In this case the FCC 
required AFA to state under oath whether or not they had broadcast the 
material, or something similar, required AFA to provide a transcript 
and a tape, required AFA to state what was broadcast before and after 
the underwriting spot. The FCC's enforcement of the advertising ban on 
noncommercial stations is altogether appropriate, and believe me, we 
take pains to avoid errors such as the cited above. The Commission 
should apply no less zeal and use no weaker enforcement tools when the 
public complains about the broadcast of indecency or profanity.
4. Conclusion.
    Congress should reprimand the FCC for dereliction of its duty to 
protect children from broadcasts of material that is harmful to their 
physical and emotional well-being, as well as their ethical and moral 
development. Congress should instruct the Commission to (1) Adopt a 
more comprehensive definition of broadcast indecency; (2) Enforce the 
statutory ban on broadcast profanity; (3) Reform its enforcement 
practices so that indecency and profanity complaints receive the same 
level of investigation as other types of complaints.

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