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



             THE BROADCAST DECENCY ENFORCEMENT ACT OF 2004

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

                                HEARINGS

                               before the

          SUBCOMMITTEE ON TELECOMMUNICATIONS AND THE INTERNET

                                 of the

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                                   on

                               H.R. 3717

                               __________

                        FEBRUARY 11 and 26, 2004

                               __________

                           Serial No. 108-68

                               __________

       Printed for the use of the Committee on Energy and Commerce


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



                               __________

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                    COMMITTEE ON ENERGY AND COMMERCE

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

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

                   Dan R. Brouillette, Staff Director

                   James D. Barnette, General Counsel

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

                                 ______

          Subcommittee on Telecommunications and the Internet

                     FRED UPTON, Michigan, Chairman

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

                                  (ii)




                            C O N T E N T S

                               __________
                                                                   Page

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

                                 (iii)

  

 
             THE BROADCAST DECENCY ENFORCEMENT ACT OF 2004

                              ----------                              


                      WEDNESDAY, FEBRUARY 11, 2004

              House of Representatives,    
              Committee on Energy and Commerce,    
                     Subcommittee on Telecommunications    
                                          and the Internet,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:30 a.m., in 
room 2123, Rayburn House Office Building, Hon. Fred Upton 
(chairman) presiding.
    Members present: Representatives Upton, Bilirakis, Barton, 
Stearns, Gillmor, Cox, Deal, Whitfield, Cubin, Shimkus, Wilson, 
Pickering, Bono, Walden, Terry, Markey, Rush, McCarthy, Doyle, 
Davis, Towns, Eshoo, Stupak, Engel, Wynn, Green, and Dingell 
(ex officio).
    Also present: Representatives Gonzales, Solis, and Norwood.
    Staff present: Kelly Zerzan, majority counsel; Neil Fried, 
majority counsel; Will Nordwind, majority counsel and policy 
coordinator; Jaylyn Jensen, majority professional staff; 
William Carty, legislative clerk; Gregg Rothschild, minority 
counsel; and Peter Filon, minority counsel.
    Mr. Upton. Good morning, everyone. I know on our side of 
the aisle we have a mandatory Republican conference and I think 
I saw everybody at least so far here check in. They didn't 
check us when we left, so that was--other members, I know will 
be here.
    Today, we're going to be examining a bill that I've 
introduced along with Mr. Markey, Mr. Tauzin and Mr. Dingell, 
to greatly strengthen the FCC's enforcement of broadcast 
indecency laws. Let me start by saying what, in my view, 
today's hearing is about and what it is not about. Mainly what 
today is about is listening and responding to the American 
people's concern and understandable clamor for decency. Well 
before the Super Bowl episode, many Americans were fed up with 
all the too frequent flouting of common decency over our public 
airwaves.
    As a member representing a Midwestern District that 
typifies the heart and soul of this country I have been 
swamped, thousands of letters and e-mails from folks downright 
desperate and frustrated that the government has not adequately 
used its authority to rein in broadcast indecency.
    In one letter, a frustrated mom wrote, ``I'm a single mom 
trying to raise a daughter and I cannot believe that it is 
nearly impossible for us to watch TV even sporting events or 
listen to most radio stations either without being exposed to 
indecent material.''
    As I said at our hearing 2 weeks ago, I believe that some 
TV broadcasters are engaged in a race to the bottom, pushing 
the decency envelope in order to distinguish themselves in an 
increasingly crowded entertainment field.
    Today, we'll consider H.R. 3717, a bill to increase the 
penalties which the FCC can impose by tenfold. It's a tough 
bill which, if enacted, would help clean up our airwaves. Even 
the mere introduction of this bill is already forcing the 
broadcasters to be more responsible. The marketplace is 
reacting to the threat of increased fines and stepped up FCC 
enforcement.
    In the February 5 edition of The Washington Post, Academy 
Awards Executive Director Bruce Davis stated ``part of what 
they're worried about is that bill in Congress.'' He didn't say 
the Upton bill, but that bill in Congress ``that would increase 
the financial penalties tenfold. They're terrified of this. I 
can imagine the kind of pressure the network is feeling and 
it's all very well for us to take a noble first amendment 
approach, but if this bill is passed and run through by 
February 29, the date of the Oscars, we might be exposing them 
to some horrendous amounts of money. We have to recognize 
that.''
    In addition to the Academy Awards adopting a 5-second 
delay, the Grammy Awards this past weekend was broadcast with a 
5-minute delay. We've seen similar changes in the behavior with 
other broadcasters.
    I believe increased fines will push the marketplace to 
impose live broadcast delays and promote more exacting 
corporate discussions about what is inappropriate for TV and 
radio. We'll likely see contracts between the broadcasters and 
on-air talent whereby the talent will be required to pay any 
fines which might be imposed on the broadcasters as a result of 
the talent's indecency. And I suspect that such contracts could 
make Janet Jackson and Justin Timberlake think twice before 
rolling the dice and taking the hit in their own wallet.
    The same goes for the Shock Jocks who brought us such 
dubious hits as ``Sex in St. Patrick's Cathedral'' and 
depictions of daughters performing oral sex on their dads. And 
while I believe H.R. 3717 is a strong bill which is already 
having an effect, I'm interested in working with members on 
both sides of the aisle to improve the bill in a responsible 
way. We need to look at the level of the fines. We need to look 
at beefing up the license renewal procedures to ensure that 
indecency violations are factored in by the FCC and as I've 
suggested before, perhaps we're at a point where we need to 
drop the hammer of three strikes and you're off, off the air.
    Today's hearing is not about anything to do with TV or 
radio outside the scope of the public airwaves. Our bill 
applies to broadcast TV and radio. However, I would hope that 
all companies, cable or otherwise, satellite, would adhere to a 
voluntary code of conduct for programming during the hours that 
children are most likely to be watching. And as a parent, I 
would also add that we need to continue to actively monitor 
what our kids are exposed to on both TV and radio.
    This hearing is not about making a government entity the 
nanny of America's kids. I know that the ultimate 
responsibility for instilling character, common sense, values 
in my kids rests within the four walls of our house. It's just 
that regrettably, the current race to the bottom in the 
entertainment industry has made it an all-but-impossible task 
for parents. They should be able to rely on the fact that at 
times when their 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.
    We're here today to help ensure that the Congress take 
responsible and constitutionally sound steps in doing our part 
to help the FCC make sure that the public airwaves are cleaned 
up through the strengthening enforcement of the indecency laws 
which have been on the books for decades.
    I would also like to announce that we are going to be 
polling members on both sides of the aisle to see as to whether 
or not we'll have the appropriate number of members here to 
have a subcommittee markup tomorrow morning. I think we have an 
agreement with the Minority to only offer and withdraw 
amendments and at the request of Ranking Member Dingell, I have 
agreed to hold an additional hearing before we get to full 
committee markup after the President's Day recess where we'll 
be inviting a number of witnesses to appear again.
    I appreciate the bipartisan cooperation of my colleagues, 
and I recognize my good friend, the ranking member of the 
subcommittee, the gentleman from Massachusetts, Mr. Markey.
    [The prepared statement of Hon. Fred Upton follows:]

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

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

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

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

    I thank the Chairman for calling this timely hearing to examine 
H.R. 3717 with respect to the FCC's enforcement role in preventing 
broadcast indecency.
    As the frequency of indecency invading our radio and television 
airwaves continues to increase, my constituents in the Fifth District 
of Ohio have sounded out with great disdain. I have received over 500 
emails regarding the use of the expletives on television and several 
hundred more emails regarding the Super Bowl halftime show performance. 
Many of these messages detail the stories of young people exposed to 
the shocking actions of a few performers. I am confident that their 
accounts will be echoed by my colleagues as examples of the damage this 
type of programming can cause.
    The Super Bowl performance, combined with the offensive language 
used at awards shows in the past year, have resulted in bringing the 
very important issue of broadcast indecency to a focal point in 
American society. The deplorable actions displayed during the exploits 
of Janet Jackson and Justin Timberlake were the culmination of a 
sexually revealing and embarrassing halftime show complete with 
inappropriate groping and self-gratification.
    I would like to thank the Chairman of the Federal Communications 
Commission (FCC), Michael Powell, for his swift condemnation of the 
Super Bowl XXXVIII Halftime Show festivities as well as his commitment 
to raising the penalties for broadcast indecency. I look forward to 
examining the disregard by performers and programmers to deliver the 
decent and quality broadcasting that consumers demand and deserve.
    I commend my colleagues on their quick legislative action. In 
particular, I thank Chairman Upton and Ranking Member Markey's efforts 
and am proud to be an original cosponsor of HR 3717, the Broadcast 
Decency Enforcement Act of 2004. The effort to increase FCC penalties 
ten-fold for obscene, indecent, or profane broadcasts is consistent 
with the will of the citizens of Ohio's Fifth District. I am also 
anxious to debate the possibility of making this measure even stronger.
    I look forward to hearing from the well-balanced panel of witnesses 
regarding standards of decency at future live television performances. 
In addition, I look forward to examining the scope of the pending 
legislation as well as proposals for furthering the penalties available 
to the FCC. Again, I thank the Chairman and yield back the remainder of 
my time.

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

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

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

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

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

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

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

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

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

 Prepared Statement of Paul Tagliabue, Commissioner, National Football 
                                 League

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

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

                   STATEMENT OF MEL KARMAZIN

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

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

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

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

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

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

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

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

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

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

               STATEMENT OF HON. KEVIN J. MARTIN

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

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

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

                                 ______
                                 
     Family-Friendly Programming: Providing More Tools for Parents

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

                        MARKETPLACE DEVELOPMENTS

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

                BROADCAST CHALLENGE: FAMILY VIEWING HOUR

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

   CABLE AND SATELLITE CHALLENGE: FAMILY-FRIENDLY PROGRAMMING PACKAGE

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

                               CONCLUSION

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

    Mr. Upton. Commissioner Abernathy.

            STATEMENT OF HON. KATHLEEN Q. ABERNATHY

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

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

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

    Mr. Upton. Thank you.
    Mr. Adelstein.

            STATEMENT OF HON. JONATHAN S. ADELSTEIN

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

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

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

    Mr. Upton. Thank you.
    Mr. Copps.

               STATEMENT OF HON. MICHAEL J. COPPS

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

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

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

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

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

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

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

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

Atlanta
                                  WZGC

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

                                  KKMJ

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

Baltimore
                                  WXYV

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

Boston
                                WBCN-FM

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

Charlotte
                                  WPEG

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

Chicago
                                WXRT-FM

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

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

Cincinnati
                                  WAQZ

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

Columbus
                                  WAZU

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

Dallas
                                KOAI-FM

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

Denver
                                  KDJM

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

Houston
                                KILT-FM

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

Kansas City
                                  KMXV

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

Los Angeles
                                KROQ-FM

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

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

Memphis
                                  WMFS

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

Philadelphia
                                  WYSP

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                  WBZ

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

                                  WBMX

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

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

                                CLUSTER

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

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

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

                                  WSOC

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

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

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

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

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

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

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

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

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

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

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

                                KNX(AM)

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

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

                      ``A WAVE OF PEACE'' CONCERT.

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

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

                NATIONAL FATHERHOOD INITIATIVE CAMPAIGN

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

                          ``GET IN THE GAME.''

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

                         ``WAVEFEST'' CONCERT.

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

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

                                CLUSTER

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

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

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

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

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

                                KVMX-FM

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

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

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

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

                                KLLC-FM

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

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

                                  KMOX

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

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

                   INDEPENDENT AND LOCAL PROGRAMMING:

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

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

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

                                  WBZ

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

                                  WBMX

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

                                  WZLX

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

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

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

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

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

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

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

                                  WVMV

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

                                  WWJ

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

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

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

                                WTIC(AM)

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

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

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

                                KLSX-FM

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

                                KNX(AM)

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

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

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

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

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

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

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

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

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

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

                      LOCAL NEWS AND INFORMATION:

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

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

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

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

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

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

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

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

                                KNX(AM)

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

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

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

                                  WOGL

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

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

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

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

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

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

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

                                KNCI-FM

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

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

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

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

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

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                   THE BROADCAST DECENCY ACT OF 2004

                              ----------                              


                      THURSDAY, FEBRUARY 26, 2004

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

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

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

    I thank the Chairman for calling this timely hearing to examine 
H.R. 3717 with respect to the FCC's enforcement role in preventing 
broadcast indecency.
    I am proud to be an original co-sponsor of H.R. 3717, the 
``Broadcast Decency Enforcement Act of 2004.'' The efforts contained in 
this measure to increase penalties ten-fold for obscene, indecent, or 
profane broadcasts are a significant step towards achieving the quality 
broadcasting that my constituents within the Fifth District of Ohio 
have demanded. Nevertheless, I look forward to any efforts to further 
strengthen this measure.
    Indecency continues to invade our radio and television airwaves at 
an increasing rate. This subcommittee and the FCC have taken many 
recent measures to investigate and curb the tide of indecency delivered 
during family viewing hours. And yet the business of telecommunications 
is so lucrative that monetary penalties offer minimal recourse. The 
effort to increase penalties ten-fold is significant and will have a 
great impact on many stations throughout the year. However, the 
exploits displayed at the Super Bowl XXXVII Halftime Show cannot be 
remedied solely through monetary penalties.
    The 2004 Super Bowl attracted an audience of over 143 million 
viewers watching all or part of the game with an average viewership of 
almost 90 million viewers. This was the most watched Super Bowl in 
history and the most watched television program on any network since 
Super Bowl XXXII in 1998. In addition to the Super Bowl, the post game 
show reached almost 59 million viewers and the premier of Survivor: 
All-Stars reached over 33 million.
    As viewership rates reached an all-time high, a 30-second 
television advertisement during this year's Super Bowl cost 
approximately 2.3 million dollars. Since 1994, the cost of advertising 
in the Super Bowl has risen over 250 percent! With soaring ad revenue 
and rising viewship, we must impose upon the telecommunications 
industry additional incentives to produce quality programming.
    I look forward to hearing from the well-balanced panel of witnesses 
regarding standards of decency at future live television performances. 
In addition, I look forward to examining the scope of the pending 
legislation as well as proposals for furthering the penalties available 
to the FCC. Again, I thank the Chairman and yield back the remainder of 
my time.
                                 ______
                                 
Prepared Statement of Hon. Barbara Cubin, a Representative in Congress 
                       from the State of Wyoming

    Thank you, Mr. Chairman.
    This is now the third hearing on this matter in the last two 
months. We've heard from the FCC, broadcasters, community activists and 
other interested parties about what is happening on the public's 
airwaves, and how we can act as a Congress to enact proper 
disincentives to indecent broadcasts without sullying the First 
Amendment.
    The consensus thus far has been that Chairman Upton's bill, of 
which I am a cosponsor, is narrowly tailored enough to combine with 
increased efforts at the FCC to curb profanity and nudity in programs 
where Americans simply are not expecting to find them. These aren't 
late night, pay-per-view instances of indecency, but family-hour, 
family-watched programming.
    It's difficult to apply historical norms to what we do and say in 
society, as we live in ever-changing times. However, regardless of the 
decade, we can expect B and demand B that people act in a civil manner 
when they are afforded access to the public's airwaves.
    Some have taken the Committee's actions thus far as an affront to 
free speech, or an imposition of censors on programming B or worse yet, 
may be trying to use it as an effort to put the federal government into 
the production business. None of this is the case. We are simply 
updating the penalties for indecent broadcasts. Broadcasters have 
responded by establishing or recommitting to standards for the safe 
harbor period of the programming day. They are adopting delays for live 
programming, ensuring on-air talent has some skin in the game should 
their behavior result in fines, and realizing they have an obligation 
to a civil society.
    The reason I support the Chairman on this matter is that he has 
avoided pursuing prohibitions on words, or changes that could rewrite 
the indecency standard, or legislation that may not pass constitutional 
muster. This is a simple and focused bill that has already paid 
dividends by anyone's standards, and I would like to commend him for 
his actions on the matter of indecency. Thank you Mr. Chairman, and I 
look forward to working with you to pass this bill which appears to be 
long overdue.
    I yield back the balance of my time.
                                 ______
                                 
Prepared Statement of Hon. Lee Terry, a Representative in Congress from 
                         the State of Nebraska

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

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

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

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

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

                    STATEMENT OF GAIL BERMAN

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

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

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

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

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

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

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

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

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

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

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

    Mr. Upton. Thank you.
    Dr. Wurtzel.

                    STATEMENT OF ALAN WURTZEL

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

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

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

   NBC'S COMMITMENT AND OBJECTIVE IS TO BROADCAST QUALITY PROGRAMMING

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

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

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

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

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

                NBC HAS INSTITUTED ADDITIONAL SAFEGUARDS

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

          NBC'S INTERNAL SAFEGUARDS BENEFIT AFFILIATE STATIONS

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

            NBC'S COMMITMENT TO AVOIDING GRATUITOUS VIOLENCE

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

                  NBC SUPPORTS H.R. 3717 AS INTRODUCED

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

                               CONCLUSION

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

    Mr. Upton. Thank you.
    Mr. Paxson.

             STATEMENT OF LOWELL W. ``BUD'' PAXSON

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

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

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

    Mr. Upton. Thank you.
    Mr. Hogan.

                     STATEMENT OF JOHN HOGAN

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

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

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

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

                            THE LEGISLATION

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

                             THE AMENDMENTS

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

                               CONCLUSION

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

    Mr. Upton. Thank you.
    Mr. Pappas.

                  STATEMENT OF HARRY J. PAPPAS

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

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

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

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

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

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

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

                     NETWORK AFFILIATION AGREEMENTS

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

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

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

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

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

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

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