[Senate Hearing 108-1005]
[From the U.S. Government Publishing Office]
S. Hrg. 108-1005
PROTECTING CHILDREN FROM VIOLENT
AND INDECENT PROGRAMMING
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
FEBRUARY 11, 2004
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska ERNEST F. HOLLINGS, South
CONRAD BURNS, Montana Carolina, Ranking
TRENT LOTT, Mississippi DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas JOHN D. ROCKEFELLER IV, West
OLYMPIA J. SNOWE, Maine Virginia
SAM BROWNBACK, Kansas JOHN F. KERRY, Massachusetts
GORDON H. SMITH, Oregon JOHN B. BREAUX, Louisiana
PETER G. FITZGERALD, Illinois BYRON L. DORGAN, North Dakota
JOHN ENSIGN, Nevada RON WYDEN, Oregon
GEORGE ALLEN, Virginia BARBARA BOXER, California
JOHN E. SUNUNU, New Hampshire BILL NELSON, Florida
MARIA CANTWELL, Washington
FRANK R. LAUTENBERG, New Jersey
Jeanne Bumpus, Republican Staff Director and General Counsel
Kevin D. Kayes, Democratic Staff Director and Chief Counsel
C O N T E N T S
----------
Page
Hearing held on February 11, 2004................................ 1
Statement of Senator Boxer....................................... 2
Excerpt from GAO, ``Child Pornography Is Readily Accessible
over Peer-to-Peer Networks'', June 2003.................... 56
Statement of Senator Breaux...................................... 5
Statement of Senator Brownback................................... 5
Statement of Senator Burns....................................... 3
Statement of Senator Dorgan...................................... 16
Statement of Senator Hollings.................................... 6
Prepared statement........................................... 7
List of TV and Copycat Behavior cases........................ 53
Statement of Senator Lautenberg.................................. 10
Prepared statement........................................... 11
Article dated February 2, 2004 from the Washington Post by
Tom Shales................................................. 12
Letter dated April 6, 2004 to all Senators from Gene
Kimmelman, Consumer's Union................................ 13
Statement of Senator Lott........................................ 66
Statement of Senator McCain...................................... 1
Statement of Senator Nelson...................................... 15
Prepared statement........................................... 15
Statement of Senator Snowe....................................... 9
Statement of Senator Wyden....................................... 14
Witnesses
Abernathy, Hon. Kathleen Q., Commissioner, Federal Communications
Commission..................................................... 23
Prepared statement........................................... 25
Adelstein, Hon. Jonathan S., Commissioner, Federal Communications
Commission..................................................... 44
Prepared statement........................................... 46
Copps, Hon. Michael J., Commissioner, Federal Communications
Commission..................................................... 28
Prepared statement........................................... 30
Graham, Hon. Lindsey O., U.S. Senator from South Carolina........ 17
Prepared statement........................................... 18
Martin, Hon. Kevin J., Commissioner, Federal Communications
Commission..................................................... 33
Prepared statement........................................... 36
Powell, Hon. Michael K., Chairman, Federal Communications
Commission..................................................... 19
Prepared statement........................................... 21
Appendix
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, prepared
statement...................................................... 79
PROTECTING CHILDREN FROM VIOLENT
AND INDECENT PROGRAMMING
----------
WEDNESDAY, FEBRUARY 11, 2004
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m. in room
SR-253, Russell Senate Office Building, Hon. John McCain,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN McCAIN,
U.S. SENATOR FROM ARIZONA
The Chairman. Good morning. I welcome the Federal
Communications Commission and Chairman Powell, and I thank them
for appearing before the Committee today to discuss the
pervasiveness of violent and indecent programming on broadcast
television. And I'd like to make it very clear this Committee
had scheduled this hearing before the Super Bowl aired due to
Members' concerns about increasingly violent and indecent
programming.
By now, there isn't a person in this room who's unfamiliar
with CBS and the NFL's fumble during the Super Bowl halftime
show last week, which was viewed by an estimated 140 million
Americans, including millions of young children. And then, in
an instant, this issue became the subject of national debate,
and rightfully so.
This discussion should remind us that broadcasters have
been given spectrum for free. As Americans who own that
spectrum, we have every right to expect something in return. We
call it the ``public interest.'' We expect broadcasters to make
the best use of that spectrum by providing news and information
about our society and political campaigns, children's
programming, and even entertainment. But what constitutes
entertainment clearly lies in the eye of the beholder.
Forty years ago, Jack Paar famously walked off the Tonight
Show because a network had censored a joke he told involving a,
``water closet.'' From censoring a water closet joke to airing
nudity, we've come a long, long way. However, that is exactly
what makes it so difficult to draw a line between what is and
what is not appropriate within the boundaries of the First
Amendment.
Before the Super Bowl, CBS sister company, MTV, hyped the
halftime show as one that would provide a, ``shocking moment,''
and grab viewers' attention. Well, they've succeeded. They now
have the attention of the Chairman of the Federal
Communications Commission and more than several Members of
Congress. Chairman Powell has called for a thorough and swift
investigation of the incident. Senators Allen, Brownback, and
Lindsey Graham have introduced a bill, S. 2056, that would
increase fines for indecency violations.
I remind my colleagues that last summer Senator Hollings
and I introduced our FCC reauthorization bill, S. 1264, that
would not only raise fines tenfold for broadcasters, but also
direct the FCC to count each incident--utterance individually
and encourage license revocation proceedings in certain
circumstances. The bill was reported out of this Committee 7
months ago, and it's unfortunate that the Senate leadership has
not seen fit to bring the bill to the floor for consideration
and passage. These fines have not been raised since 1989. Now
is the time, so companies don't continue to accept these fines
as the cost of doing business.
I note, finally, the scope of all these bills are limited
to broadcast television. All these bills, the scope is limited
to broadcast television. More than 85 percent of Americans now
receive their television programming from cable and satellite
television. In fact, for the first time ever, cable's combined
prime-time viewership recently surpassed that of broadcast.
Gene Kimmelman, my old friend Gene Kimmelman, of Consumer's
Union, wrote to Senators this week urging Congress to address
indecent content on cable and satellite television. Mr.
Kimmelman calls for Congress to take a new approach to
offensive content aired over pay television. Quote, ``Instead
of forcing customers to buy service from tiers of 40, 50, or 75
channels, which include networks they never watch or channels
they find offensive, Congress should require cable and
satellite operators to offer a la carte programming, let people
pick and pay for only those channels they want in order to save
consumers money and empower those who are offended by some of
today's program offerings. Mr. Kimmelman's a la carte
suggestion sounds familiar to me, and more persuasive than ever
in providing parents control over their television sets. But I
suspect we'll hear more about these issues in the weeks to
come.
Again, I thank the Commissioners for being here with us
this morning. I would ask my colleagues if they could make
their opening comments brief, and then Senate Graham would like
to make a brief opening comment, and we will move forward.
Senator Breaux?
I'm sorry, Senator Boxer was here before Senator Breaux.
Senator Boxer?
STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM CALIFORNIA
Senator Boxer. Thank you, Mr. Chairman.
Well, clearly, we were right, in this Committee, in June. I
thank you and Senator Hollings for being ahead of the curve
here when we voted to increase fines for obscenity ten times.
And we were also right to follow Senator Hollings' lead, in
terms of looking at each offense as a separate one, and also to
even look at license revocation. I'm glad that you called our
attention to this issue of Mr. Kimmelman's point that picking
and paying, I think, is the way you phrased it, seems to make a
lot of sense when you look at these packages, because you're
sometimes getting channels that you really are stunned to find.
I want to quickly just talk about the halftime deal,
because I was, as most of Americans, or a lot of Americans,
watching the entire Super Bowl and the halftime. Great family
day. We were with our family and friends. There were nine kids
in the house. They were very little kids, and they happened to
be upstairs watching Shrek, which was fortunate for us.
What I found, Mr. Chairman, the end of the halftime show
was shocking, but the whole halftime show was shocking. And,
for me--I guess because I don't watch MTV, it was shocking. I
guess for people who watch it, like the youngsters who were--
the young people who were at this home watching with us, they
said, ``Well, this is what you get all the time on MTV.'' Well,
I think--let's just say it opened a lot of eyes.
I think, here, that maybe, as a result of this and the fact
that hundreds of thousands of people contacted the FCC, it does
spur us to really enforce the law.
I want to make one last point, Mr. Chairman, because this
was an issue that awakened us, but I want to take advantage of
this moment to talk to the Commissioners here. I want to also
thank you all for--a lot of you, for speaking out intelligently
on this, and, also, one of the Commissioners actually went and
met with the creative community--and I think it was you--and it
was very important that that be done, because the onus is on
them. I believe, in our society, they need to take
responsibility.
But the last point I want to make to the Commissioners is
this. As outrageous as this was, it doesn't come close to what
happens on peer-to-peer networks, the child pornography that
our kids are seeing when they click onto something that says
Britney Spears or the Beatles. What is going on in the peer-to-
peer is sickening. And I hope--and I'm going to continue to
raise this with this Committee. And, as far as I'm concerned, I
hope you will begin to take immediate action in that area,
because it's a frightening circumstance what is going on there,
unsuspecting children getting images that are illegal and could
scar them for life.
So, Mr. Chairman, we do have a lot of work to do. Thank you
for your leadership.
The Chairman. Thank you.
Senator Brownback?
Oh, sorry. Senator Burns? That's twice.
Senator Burns? Sorry.
Senator Burns. Who cares?
[Laughter.]
The Chairman. Some do.
[Laughter.]
Senator Burns. I know.
[Laughter.]
STATEMENT OF HON. CONRAD BURNS,
U.S. SENATOR FROM MONTANA
Senator Burns. I glean more from other people's statements
than I do from my own, anyway, so maybe I should be moved down
to come up with an idea.
Mr. Chairman, thanks for holding this hearing. We were all
shocked and dismayed at the--and disappointed by the
inappropriate stunt that happened at the Super Bowl, and those
responsible should be severely punished for such a--it was just
a vulgar, tasteless act.
That said, in my opinion this sort of high profile, well-
publicized incident could prompt Congress to go too far in this
situation on what we think--levy fines and this type thing. I
think we have to approach it--kind of, be guided with some
principles here, also.
When I saw on the marquee that the halftime show was
``compliments of MTV,'' I didn't even see it. I immediately
flipped over and watched the poker tournament from Las Vegas.
What would CBS or the NFL expect, if you've ever watched MTV? I
said, way back in 1990 and 1991, that if there ought to be a
pay channel, it should be MTV. And I still say that today. And
it has gotten worse. And I didn't think it could get any worse,
but it has. I'm just being very outspoken about this. I just
think it's inappropriate, and does not portray the average
community across America.
You know, in my opinion, private industry should be held
accountable for their programming standards, and I think they
should reflect more about the values of American communities.
This has been a widespread move to increase finds of indecency.
And, of course, somebody define that, and I'll put in with
them. But I'm concerned at the potential unintended effects
such moves could make if fines are increased. Individual
affiliates should not be punished for simply broadcasting
content of which they have no control. We have to look at that.
But it would look like, if they would look into the community
of arts, or whatever you want to call it, or imagination, or
whatever, and would have a history, and just wouldn't program
such stuff--in the case of the Super Bowl incident, for
example, many affiliates were furious that their viewership was
exposed to such a spectacle. Ultimately, however, no matter
what the penalties are or how strictly or regularly they are
levied, the media is going to need to demonstrate some
responsibility on its own.
So I think, you know, as we look at this--and I think
everybody was shocked--is fines the right direction? I don't
know. I think that--in the court of public opinion, that the
image of those involved and the companies involved and the
organization that was involved has been tarnished, and they may
suffer greater fines there than we could levy from a
governmental organization. And you can make a case--if you were
an attorney, you could probably make a case both ways. So our
approach on this--we should, you know, approach it responsibly.
I'm not--I think what the Chairman of this Committee and the
Ranking Member introduced and passed out of this Committee, I
think, is probably a pretty good start in that direction. But I
also fear overreaction, too.
And so thank you, Mr. Chairman, for holding this hearing
and at least giving some of us an opportunity to vent our
disapproval of what happened at the Super Bowl this year. And
thank you.
The Chairman. Thank you, sir. And, again, I request my
colleagues abbreviate their opening statements because Senator
Graham has to leave and we have our five Commissioners waiting.
Senator Breaux?
STATEMENT OF HON. JOHN B. BREAUX,
U.S. SENATOR FROM LOUISIANA
Senator Breaux. Thank you, Mr. Chairman. And thank the
Commissioners for being with us.
I watched the Super Bowl, as most Americans did, and I
thought that whoever--at least in my opinion, whoever booked
the halftime show probably should be fired, if nothing else
because of the marketing--target audience that was in the
stadium, certainly people pretty much my age or maybe in that
neighborhood, who could afford a $2,000 ticket.
Senator Burns. That old?
Senator Breaux. Most of those people had no idea who Kid
Rock was or P. Diddy was or Justin Timberlake was, and could
care less. So I really think that they really missed the
audience completely. That show would have been something that
you could expect at a rock concert, perhaps, but certainly not
in the audience that was watching the Super Bowl. So, number
one, I think they missed their audience, really, completely.
The other issue of the content is something that I think
deserves our attention in the overall perspective. Seeing Janet
Jackson's breast for 2 seconds pales in comparison to some of
the things that we see on television on a regular basis. If you
look at some of the reality shows where you dump people in a
tub of worms and ask them to eat cockroaches, or you get people
to jump off tall buildings in very dangerous physical
situations, which young people tend to copy and injure
themselves, when you look at other things that are on cable,
whether it's the programs--the new ``L'' word show times--
lesbian-themed shows, Queer As Folk, MTV, Sex in the City--all
of that is an explosion of things that we should be concerned
about.
It seems interesting that we say, well, if it's on the
broadcast network, we're going to look at the most detailed of
violations of the decency standards, but if it's on just a
higher channel number, which you can get just by clicking your
channel-changer, well, we're not--we're going to ignore it and
not pay any attention to it. Well, that's because it's on
cable. Well, I think the distinction between cable and the
broadcast--like I think the Chairman started to say and move in
that direction, is something we look at--ought to look at the
whole spectrum of what we get over our televisions.
It's very disturbing that we thought we had this problem
somewhat solved with the V-chips. Less than 7 percent of
families use V-chips. Parents should be the ultimate sensors of
what their children watch; but, unfortunately, that is not
being done.
So I thank you for the opportunity for this hearing.
The Chairman. Thank you.
Senator Brownback?
STATEMENT OF HON. SAM BROWNBACK,
U.S. SENATOR FROM KANSAS
Senator Brownback. Thank you, Mr. Chairman, for holding
this. By my quick count, memorywise, I think this is about our
twelfth hearing on this topic. You've been on it, faithful to
point out and deal with these issues for a long period of time.
I've been meeting with the creative community basically since
I've been in the Senate to urge them to address these issues of
vulgarity, sexual material, violent material. By my count, we
have over 2,000 studies and reports--over 2,000 studies and
reports--on the effect of violent entertainment on children,
virtually all of them bad. They're saying that you watch a lot
of violent material, your child's going to be more violent.
We're now into these brain-mapping studies, where people do
MRIs while children watch violent entertainment, and see that
the brain, where it's firing, shows that--early on, that the
cognitive part, the thinking part of the brain is being
depressed and slowed down the more of this material that they
watch, so that they just react.
Mr. Chairman, I think the--this is a good hearing. I'm
delighted we're having it. It's time to act on this. It's not
as if this is something new to any of us, or that this is
something that just suddenly has come on the TV screen because
of Janet Jackson. This has been out there for a long period of
time. And I have two suggestions. I'm on Senator Graham's bill,
that we increase, by tenfold, the fines, because I think maybe
that'll send a signal. It's time to act and it's time to move
this.
The other thing that we did get the creative community's
attention on was the FTC study that we did on their target
marketing of violent material to children. And we showed there
that they were actually doing sample groups of studying 9 to
12-year-old children, taking violent R-rated material and
saying, ``What will attract them,'' and they were doing focus
groups. And we started to get them to turn a little bit, saying
if you're going to rate it as violent material, then don't
target-market it to the very group that you've rated and say
it's not appropriate for.
Well, I think we need to do the same thing with the FTC
with sexual material, then. If they're going to say it's not
appropriate material for an under age 18 audience, then why are
you target-marketing it to that under age 18 audience?
We had MTV go on halftime in the Super Bowl. Everybody up
here is saying, well, this is what's been on MTV. Well, who
watches MTV? Who is this target-marketed to? Well, I think we
need to have the FTC do something, again, similarly, and find
out, are these organizations target-marketing this to kids of
inappropriate material? And if so, let's get a stop to it.
But we have this toxic entertainment media environment now
in this country where you just can't afford to let your child
freely watch the television, for violent or sexual material.
And this is hurting us, and it's--I'm glad we're holding the
hearing, but it is time to act. We've got to move this on
forward.
I congratulate the Chairman for looking into this, but it's
time to move, and we need to do it now.
Thank you.
The Chairman. Thank you, sir.
Senator Hollings?
STATEMENT OF HON. ERNEST F. HOLLINGS,
U.S. SENATOR FROM SOUTH CAROLINA
Senator Hollings. Well, I thank you, Mr. Chairman, very
much for the hearing.
Let me, in the first instance, commend our colleague from
Kansas. I finally found someone else on the other side of the
aisle now that's just as exercised about violence as I am. This
thing has been going on for years.
First, let me ask that the distinguished Senator from West
Virginia, Senator Rockefeller's, statement be included----
The Chairman. Without objection.
Senator Hollings.--and mine, in its entirety.
The Chairman. Without objection.
Senator Hollings. And let me try to shorten, or cut it
short as much as I possibly can.
[The prepared statement of Senator Hollings follow:]
Prepared Statement of Hon. Ernest F. Hollings,
U.S. Senator from South Carolina
Thank You, Mr. Chairman. I want to thank Senator McCain for his
leadership in calling this hearing to consider the harmful effects that
a barrage of indecent and violent programming is having on our Nation's
youth. Despite the explosion of attention in recent days occasioned by
the now infamous ``wardrobe malfunction'' during this year's Super Bowl
halftime show, this committee has, for some time, expressed growing
concern regarding the rapid decline in standards for radio and
television programming. Already in the 108th Congress, this committee
has reviewed recent research documenting the harmful effects of media
violence on child-viewers. In addition, we have reported out
legislation as part of S. 1264, the FCC Reauthorization Bill, that
would increase maximum fines for indecent broadcasts by a factor of 10
and would provide the FCC with additional enforcement tools to stop
indecent broadcasts.
Today's hearing, however, is fundamentally about accountability and
responsibility. In the first instance, the accountability and
responsibility we require from those licensees entrusted with public
resources--through grants of government spectrum and public right of
ways--to deliver radio and television programming to America's
children. In the second instance, the accountability and responsibility
we demand of regulators to vigorously enforce our laws prohibiting the
utterance of ``any obscene, indecent, or profane language by means of
radio communication.'' Unfortunately, in this Senator's opinion, we are
falling short of the mark in both cases.
Despite over 50 years of inquiries and an overwhelming amount of
evidence demonstrating the link between media violence and aggressive
behavior in children, Congress continues to battle an industry, at
best, in denial, and at worst indifferent. Because money talks and
violence sells, violent acts in prime time have become more frequent
and more graphic. According to a recent report by the Parent Television
Council entitled TV Bloodbath: Violence on Prime Time Broadcast TV,
depictions of violence in prime time increased on the six major
broadcast networks by 41 percent during the 8 p.m. hour and by 134.4
percent during the 9 p.m. hour between 1998 and 2002.
Additionally, our continuing efforts to assist parents by requiring
blocking technologies like the V-Chip have largely been ineffective.
According to a 2001 Kaiser Foundation Survey, while 40 percent of
parents had TVs equipped with this technology, only 7 percent used the
V-Chip to block programs. In light of this failure, it is time that the
Committee get serious about protecting children from violent
programming by adopting safe harbor legislation (S. 161). This
legislation that I have again introduced with Senators Inouye, Dorgan,
and Hutchinson has widespread support and has been reported out of
Committee multiple times--most recently by a vote of 17 to 1.
But in addition to legislating new protections, we must ensure that
our rules prohibiting the broadcast of indecent material on radio and
television are vigorously enforced to deter wrongful conduct. As
consolidated media companies grow ever larger, the ability of the FCC
promote responsible conduct may be diminishing. In other words, when
radio behemoths like Clear Channel and Infinity Broadcasting have
annual revenues of $3.4 and $2.1 billion, respectively, or when CBS
sells Super Bowl commercials for $2.3 million for each 30 second spot,
how much deterrence will the statutory maximum fine of $27,500 buy?
In light of this fact, I support the efforts of the Committee to
increase maximum fines and to add other tools to the FCC's arsenal in
combating indecent programming. It is my hope that these provisions
will soon be enacted into law. But even a bigger hammer will have
little effect, if the Commission is reluctant to swing it. As a result,
it is my hope that the FCC's new-found fervor in getting serious about
cleaning up the public airwaves will maintain its intensity and put
radio and television stations on notice that the days of ``anything
goes'' are over.
I thank the Chair, and look forward to the testimony of the
witnesses.
Senator Hollings. Right to the point, last night, Mr.
Chairman, this Committee got a correspondence, a copy of a
letter from the Chairman of the Federal Communications
Commission, the Honorable Michael Powell to Leslie Moonves of
the CBS, and in that letter, what he asked for, and I read,
``To that end, I challenge the broadcast community to reinstate
a voluntary code of conduct.'' There's nothing about the
responsibility of the broadcast media to get to be voluntary.
Indecency is not a voluntary proposition.
It started in the original, Mr. Chairman, Act of 1927;
restated again in the 1934 Federal Communications Act; then
codified in the Criminal Code in 1948, in Section 1464; and,
finally, in the decision of Pacifica versus FCC--or FCC,
rather, versus Pacifica, in 1978, the Supreme Court of the
United States found the responsibility constitutional in the
FCC. And now here we're going to all of a sudden start off with
this ``voluntary code.''
I have toyed with that ``voluntary code'' on the most
extreme of all indecency, namely violence, Senator. And after
10 years of that--we've been on this thing for 20 years--this
Committee has reported out three bills, almost unanimously. The
last one was 17 to 1. And after that, they then got the cable
boys, in addition to trying to get all that voluntary--my
friend, Jack Valenti used to always come up and--``We're going
to be voluntary. We're going to be voluntary.'' I hope we can
get his act one more time, because it's worthwhile.
[Laughter.]
The Chairman. We will.
Senator Hollings. Yes, thank you very much, Mr. Chairman.
But then the national TV spent--cable industry, rather--
spent three and a half million, and they put their National
Parent Teacher Association head and the head of the National
Education Association on the Council, but then they packed the
court with the American Federation of Television and Radio
Artists, the Producers Guild of America, the Writers Guild of
America, the Caucus for Producers, Writers, and Directors, and
Gene Reynolds of the Directors Guild of America. And to the
surprise, Senator, of everyone--and I won't read them all, but
just three--they made a finding. It threw them in shock,
because they had spent the money to really dissemble and begin
again, or put off for this particular Committee.
They found, one, nearly two out of three TV programs
contain some violence, averaging about six violent acts per
hour. Two, violence was found to be more prevalent in
children's programming, 69 percent, than in any other types of
programming, 57 percent. And the average child, who watches 2
hours of cartoons a day, may see nearly 10,000 violent
incidents each year. And on and on.
I just ask, Mr. Chairman--we've got a record. It starts
with 1949, in Man Against Crime. I'm reading from ``The History
of Broadcasting,'' and this is what, in 1949, the writers
directed the--instructions went out to the writers, and I
quote, ``It has been found that we retain audience interest
best when our story is concerned with murder. Therefore,
although other crimes may be introduced, somebody must be
murdered; preferably early, with the threat of more violence to
come''----
[Laughter.]
Senator Hollings.--end quote. Now, that's not Hollings,
that's ``The History of Broadcasting,'' and everybody knows it
pays. We in the Committee know it's paid. And every time we get
the bill out on the floor--and that's why I'm so happy to see
the leadership of Senator Brownback; otherwise, they put me
off. I put it on another--``Oh, I'm with you, but I had to vote
against it because it wasn't germane or it just hurt the
passage of the other bill and everything else of that kind.''
So this has been going on for 20 years, and I hope we can
bring it to a head this year and pass it, Mr. Chairman, under
your leadership, and Senator Brownback.
And let me welcome my colleague from South Carolina,
Senator Graham. We're glad to have him.
The Chairman. Thank you, sir.
Senator Snowe?
STATEMENT OF HON. OLYMPIA J. SNOWE,
U.S. SENATOR FROM MAINE
Senator Snowe. Thank you, Mr. Chairman. And very briefly.
First of all, I want to thank you for holding this hearing and
your persistent leadership on this issue throughout the years
as Chairman of this Committee, and Senator Hollings, as well,
and the Senator from Kansas and Senator Graham, for all their
efforts on this issue.
I think it's undeniable that television is a major force in
our daily lives. And with the influence of television, wields
obviously certain responsibilities, particularly when it comes
to certain members of our society, and that's obviously
children. And that's what brings us to this point here today,
is what children are exposed to on television.
Now, obviously, the picture coming across on television is
one that's saturated with violence and indecent programming.
According to a recent study--and it buttresses what Senator
Hollings just mentioned--by the Parents Television Council, the
average child spends 25 hours per week watching television.
This is more time devoted than attending school, playing
sports, and virtually any other activity other than sleeping.
And what have these children been watching? The study
estimated that the average child, upon reaching 18, has
witnessed 40,000 murders and 200,000 other acts of violence on
TV. More disturbingly, TV programming has become more violent,
and these are obviously disturbing and troubling trends.
Over the past 5 years, violent broadcasts have increased at
every single time slot, and has increased by upwards of 41
percent during the traditional family between 8 o'clock and 9
o'clock. Commenting on that report from a paper in Maine, they
noted that during the two week sweeps period in November 1998,
there were 292 violent incidents on primetime TV. During that
same sweeps period in 2002, the number of violent scenes on
television between 8 and 11 o'clock had increased to 534. I
think that that is a broad illustration of the types of trends
that continue to evolve over time that are moving in the wrong
direction.
Finally, on indecent broadcasting, as everybody has
indicated here, it was certainly well in evidence by the
infamous halftime show at the Super Bowl. But I think, as the
Commissioners know well, that millions and millions of
Americans were watching that program at that point in time are
calling for action as a result of these events. The FCC alone
has received more than 240,000 complaints in 2003 regarding
indecent and violent TV programs. And just because the CBS
Super Bowl broadcast--that alone has generated more than
200,000 in complaints already.
So obviously people are demanding the type of action that
is being called for by Members of this Committee and by the
Commission and the leadership of the Commission. I know that,
under Chairman Powell, record fines have been given. In the
past 14 months, they've handed down fines of more than a
million dollars. But perhaps we have to do more. It's a very
delicate situation in navigating between the interests of the
First Amendment and, obviously, protecting children from
harmful programming. That's the balance that we obviously have
to strike, and I'm looking forward to the testimony from the
Commission in terms of what are the regulatory procedures,
whether or not enhancing penalties will be sufficient to deter
this type of programming, and, in particular, at a time in
which the children are watching television.
And, finally, one other issue. One local affiliate wrote to
me recently stating the pressures on local affiliates to
preempt programming that violates their community standards.
And he said to me, the right to reject or preempt unsuitable
programming has eroded over time. It has eroded because
networks have deployed their greater bargaining power with
their affiliates to require affiliates to relinquish these
rights by contract.
Again, in light of the media consolidation and the
prevalence of direct ownership affiliates by their parent
networks, how are local broadcast stations supposed to enforce
their local community standards? Again, this is another
dimension of the problem that, again, I think has an impact on
the type of programming that young people are witnessing and
watching today.
Thank you, Mr. Chairman.
The Chairman. I'll tell my colleagues we've been in session
now for a half an hour. We have four more Senators. I do not
want to cutoff any Senator, but I will exercise the
prerogatives of the Chair, because we have Senator Graham and
we have the Commissioners here. Please abbreviate your opening
statements.
Senator Lautenberg.
STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM NEW JERSEY
Senator Lautenberg. Thank you, Mr. Chairman. I'll be brief,
and would ask that my full statement be included in the record.
The Chairman. Without objection. I thank you, Senator
Lautenberg.
[The prepared statement of Senator Lautenberg follows:]
Prepared Statement of Hon. Frank R. Lautenberg,
U.S. Senator from New Jersey
Mr. Chairman:
Let me start by apologizing for my appearance--I had a ``wardrobe
malfunction'' this morning.
In all seriousness, I understand that today's hearing was scheduled
before Super Bowl 38 but that putrid broadcast certainly highlighted
the need for this investigation of television and radio programming and
its effects on children.
During the Super Bowl, we were bombarded with ads featuring
flatulent horses, crotch-biting dogs, and a monkey making sexual
advances to a woman.
During halftime, saw Justin Timberlake ripping off Janet Jackson's
clothes while he sang lyrics such as: ``I'll have you naked by the end
of this song.''
I'm not a prude, but I am a grandfather of ten. And what I saw was
deeply offensive.
CBS officials ``apologized'' for Janet Jackson's bared breast,
saying ``the moment did not conform to CBS broadcast standards.'' What
a joke!
Isn't it interesting that CBS and MTV Networks, which produced the
halftime debacle, are both owned by Viacom?
And isn't it interesting that Viacom is one of two media giants
that benefited from the provision slipped into the Fiscal Year 2004
Omnibus appropriations bill at the insistence of the White House to
lift media ownership limits?
And isn't it interesting that CBS refused to air MoveOn.org's ad,
``Child's Pay''? That ad has one line suggesting that our children and
grandchildren will have to pay off the enormous public debt that
President Bush's economic and fiscal policies have created--which
happens to be true. The ad wasn't pornographic. It wasn't vulgar. It
wasn't tasteless. I guess that's why it ``didn't conform to CBS
broadcast standards.''
How does all of this relate to TV and radio programming and
children? I'll tell you how. Lifting the ownership limits for companies
like Viacom and Fox and Clear Channel and lnfiniti will make them less
accountable to the public and to the FCC.
Any fines the FCC might impose on these giants will be like pin
pricks on an elephant's hide.
We need to remember that the airwaves constitute a public asset to
be managed in the public interest. That's not happening anymore, and
it's not just our children who are suffering. It's our entire society.
Mr. Chairman, I ask unanimous consent that a column about the Super
Bowl in the February 2 Washington Post by TV critic Tom Shales and a
February 4 letter to all Senators from Gene Kimmelman and the Consumers
Union appear in the hearing record following my remarks.
Thank you, Mr. Chairman.
Senator Lautenberg. It's my understanding, Mr. Chairman,
that today's hearing was scheduled before Super Bowl 38, but
that putrid broadcast certainly highlighted the need for this
investigation of television and radio programming and its
effects on kids.
During this supermarket: that's what it is, supermarket of
filth--during the Super Bowl, we were bombarded with ads
featuring flatulent horses, crotch-biting dogs, a monkey making
sexual advances to a woman, and, during halftime, we saw Justin
Timberland rip off Janet Jackson's clothes while he sang lyrics
that said, ``I'll have you naked by the end of this song.''
This was no freak accident. And the lame excuse that they used,
that something was wrong with their wardrobe, just doesn't go.
I'm a grandfather of ten children, the oldest of whom is
ten, and I don't want those children to think that this is
standard behavior or acceptable conduct. CBS apologized for
Janet Jackson's bare breast, saying that ``the moment did not
conform to CBS broadcast standards.'' And that's a joke,
because I fear that their standards are something even worse
than that which we saw.
It's interesting that CBS and MTV networks, which produced
the halftime debacle, are owned by Viacom. And isn't it
interesting that Viacom is one of the two media giants that
benefited from the provisions slipped into the Fiscal Year 2004
omnibus appropriations bill, at the insistence of the White
House, to lift media-ownership limits? And it's interesting,
further, that CBS refused to air MoveOn.org's ad, ``Child's
Pay.'' Now, that ad had one line suggesting that our children
and grandchildren will have to pay off the enormous public debt
that's accumulating and challenged the current economic and
fiscal policies that have created this debt, which happens to
be true. The ad wasn't pornographic, it wasn't vulgar, it
wasn't tasteless, and I guess that's why it didn't conform to
CBS broadcast standards.
How does all of this relate to TV and programming and the
children? And, Mr. Chairman, I think rather than just express
our indignation here, we have to connect it to something that
we're doing here or something that we want to do. Well, it
relates to TV and programming and children by lifting the
ownership limits for companies like Viacom and FOX and Clear
Channel and Infinity, it'll make them less accountable to the
public and to the FCC, and any fines that the FCC might impose
on these giants will be like pinpricks on an elephant's hide.
We've got to remember that the airwaves constitute a public
asset, to be managed in the public interest. And that's not
happening anymore. It's not just our children who are
suffering. It's our entire society.
So, Mr. Chairman, I ask unanimous consent that a column
about the Super Bowl in the February 2 Washington Post, by TV
critic, Tom Shales, and a February 4 letter to all Senators
from Gene Kimmelman and the Consumer's Union appear in the
hearing as if read.
The Chairman. Without objection.
[The newspaper article and letter referred to follow:]
The Washington Post--February 2, 2004 Monday
Incomplete!
BYLINE: Tom Shales
Viewers who tuned in expecting a big-time football game saw the
Super Bowl of Sleaze instead. Sexy and violent commercials that
included jokes about flatulence and bestiality mercilessly interrupted
the CBS telecast of Super Bowl XXXVIII from Houston last night, making
it a dubious choice for family viewing.
But it was the unexpected climax of the MTV-produced halftime show
that shocked viewers and set the CBS switchboard ablaze. As a musical
number ended, out popped one of Janet Jackson's breasts. Fellow
performer Justin Timberlake clearly exposed it to the crowd in Reliant
Stadium and to the audience of millions watching at home by reaching
over and yanking off part of her costume.
Jackson, her nipple covered by a piece of costume jewelry, has not
been shy about revealing herself in public appearances and magazine
photographs, but bare breasts are not commonly considered acceptable
fare on broadcast network television, especially early in the evening
during what used to be called the ``family hour.'' CBS rushed out an
apology, but there were reports that MTV had hinted during its
afternoon programming that Jackson's appearance would be one for the
record books. MTV and CBS are both owned by media conglomerate Viacom.
``CBS deeply regrets the incident that occurred during the Super
Bowl halftime show,'' the statement said. ``We attended all rehearsals
throughout the week and there was no indication that any such thing
would happen. The moment did not conform to CBS broadcast standards,
and we would like to apologize to anyone who was offended.''
A trio of witless commentators failed to make reference to the
Jackson incident, but when the second half of the game was delayed by
someone dancing around nearly naked on the field, the announcers joked
in the booth about the ``raw, naked football'' certain to be just
ahead. CBS cameras that had earlier shown Jackson's exposed breast
avoided the streaker, and the director clung instead to a static shot
of a man at the game. The incident wasn't fully explained to viewers,
but finally an announcer said, ``Well, the midfield disturbance has
been dispensed with,'' apparently by a squad of security personnel.
An exciting game--by Super Bowl standards--between the New England
Patriots and the Carolina Panthers was upstaged not only by its
halftime show but also by the ``edgy'' and often crude humor of the
commercials. Over the years--partly because of the huge expense
involved--Super Bowl commercials have become widely ballyhooed events
in themselves, and this year some sponsors, paying up to $2.9 million
for a 30-second spot, went the smut route in order to stand out in the
crowd.
Early in the evening, a supposedly hilarious beer commercial
featured a dog that was trained to bite men in the crotch and hold on.
The man being bitten moaned and grimaced in pain and finally
surrendered his can of Bud Light.
As it happened, Bud Light set the standards for tastelessness and
self-congratulatory humor. A later commercial, stealing a joke from a
classic episode of the sitcom ``Seinfeld,'' involved a flatulent horse.
The animal, tied to a carriage, emitted an outburst from beneath its
tail that caused a candle to burst into flame and burn the hair of the
woman holding it. A loud sound effect made it clear that the horse was
suffering digestive distress.
Many of the other Super Bowl commercials seemed conspicuously
inappropriate for an event that is a national rite and the kind of rare
TV attraction that brings families together in front of the set. CBS
chose to air a spot advertising the upcoming horror movie ``Van
Helsing'' even though it contained extremely disturbing and graphic
images of brutality and gore and despite the fact that it has yet to be
rated by the Motion Picture Association of America. If the film were
eventually to be rated NC-17, it would be contrary to network policy to
carry any commercials for it.
Based on excerpts shown, ``Van Helsing'' will earn an R, or
Restricted, rating, meaning the film is considered suitable for those
under 17 only if they are accompanied by a parent or other adult. The
ad was wall-to-wall with monsters baring fangs and implied horrific
violence.
The negative vibes given off by so many off-color or violent
commercials put a soggy cloud over what was supposed to be an evening
of wholesome fun. Some of the spots were funny; Jessica Simpson and the
Muppets had a high time in their commercial for Pizza Hut, and Homer
Simpson starred in a funny spot.
But the ghastly output from Bud Light included a commercial in
which a chimpanzee talked to a beautiful girl as they sat together on a
couch while she waited for her date to return from the kitchen. The
monkey made a pass at the girl and asked, ``So, how do you feel about
back hair?'' There was also an excess of commercials for drugs designed
to help men suffering from erectile dysfunction.
Maybe the Super Bowl will have to move from the broadcast networks
to the Playboy Channel if its commercials are going to be so dirty that
they embarrass parents watching with their kids.
______
Consumers Union
Washington, DC, April 6, 2004
Dear Senator:
As the Senate prepares to take up S. 2056, the Broadcast Decency
Enforcement Act, we urge you to preserve the important media ownership
and TV violence provisions in the bill as part of an overall solution
to stemming the increase of indecency, obscenity and violence in
broadcast programming. In addition, we ask you to consider a new
approach to addressing inappropriate content on cable television--the
cable a la carte option. By allowing consumers to pick and pay only for
the cable channels they want in their homes through this option, you
will ensure that the market is more responsive to families' concerns
about indecency and violence on television.
While the increased fines in S. 2056 for violations of the Federal
Communication Commission's indecency rules are an important step in
addressing inappropriate broadcast programming, they do not solve the
larger problem. Higher fines may periodically deter programming
excesses, but it is difficult to see how they will be truly effective
when the media giants are capable of hiring an army of lawyers to fend
off whatever enforcement actions the FCC can afford to pursue. As such,
families likely will continue to be inundated with programming they
find offensive or inappropriate.
We believe that any effort to give families and local communities a
say in what is broadcast on their public airwaves, and what programming
comes into their homes, must address the growing threat of media
consolidation. Realistic media ownership rules must be in place to
lessen the influence of massive corporations on local broadcast
content, as well as to ensure public debate in the local media.
Overturning the lax FCC rules, and developing sensible media ownership
rules that allow for diverse programming that reflects local community
interests and values is a critical first step in restoring balance
between American consumers and corporate media giants.
As S. 2056 requires, the FCC's media ownership rules should not,
among other reasons, be implemented until the impact of media
consolidation on indecent programming can be thoroughly studied by the
General Accounting Office. When addressing the problem of indecency on
our airwaves, it is important to ensure that the growing concentration
of media ownership in our country has not made the situation worse.
It is also important to require violent broadcast programming be
limited to the hours when children are not likely to be watching
television, unless that programming is specifically rated on its
violent content so it is blockable by electronic means. This will
empower parents to have more control over the violent broadcast
programming that their children may watch, and ensure families are not
forced to put up with gratuitous violence during the few evening hours
they can gather together and enjoy television.
Choice and control also should be available to consumers of cable
and satellite programming by giving families an a la carte option--the
opportunity to pick and pay only for the channels they want in their
homes. Because the industry offers consumers only tiers or packages of
cable channels, a family must block a cable channel it finds offensive,
yet still must pay a subscription fee for that channel. That fee is
then passed along to the programmer--a situation that is insulting and
unfair, since the family is being forced to subsidize the producers of
content they consider inappropriate.
To end this practice, we ask you to request the FCC begin creating
pilot projects or other incentives for cable operators to offer an a la
carte option. By allowing consumers the option to pick and pay only for
channels they want (while still having the choice of purchasing a
package of channels), you will ensure that the market is responsive to
families' concerns about indecency and violence.
The cable industry will likely argue that the equipment necessary
to offer a la carte would increase prices for consumers. However, it is
hard to imagine that an industry that can offer ``plug and play''
equipment to prevent piracy, and digital boxes to deliver pay-per-view
and other packages of services, cannot at the same time offer consumers
the right to pick the channels they want with this equipment. This
argument becomes more dubious considering all of Canada's large cable
companies offer digital cable customers an a la carte option, with the
right to pick and pay individually for those channels offered in
packages.
It is also important to remember consumers on average watch only
between 12 and 18 cable channels, and the right to select the channels
they want may save many of them money on their skyrocketing cable
bills. Cable rates have increased three times the rate of inflation
since the industry was deregulated in 1996, and the a la carte option
should provide consumers some relief from the spiraling rates charged
for cable channel packages.
We urge you to support S. 2056, including the media ownership and
TV violence provisions, and the cable a la carte option as a means of
addressing inappropriate programming aired over both broadcast and
cable/satellite networks.
Respectfully submitted,
Gene Kimmelman,
Senior Director of Public Policy and Advocacy.
Senator Lautenberg. Thank you very much, Mr. Chairman.
The Chairman. Thank you, Senator Lautenberg.
Senator Wyden?
STATEMENT OF HON. RON WYDEN,
U.S. SENATOR FROM OREGON
Senator Wyden. Thank you, Mr. Chairman.
Just one point. I think it's important for the Committee to
explore whether the rise of the vulgar, overly violent media
can be linked to the loss of local ownership and accountability
in the media. It just seems to me that when the people who
choose these shows have to go shopping next to the people they
may offend, that is more likely to generate the kind of
responsible programming that we're all concerned about. Plus,
it seems to me that if media consolidation rushes ahead,
there's a risk that the debate that we're having today, which
is so important to the American people, is going to be muffled,
because when you have newspapers owning broadcast stations and
the kind of joint ownership issue we've been exploring, it
seems to me it is more--it's less likely that there'll be the
kind of robust debate about these issues that is warranted.
This Committee has spent a lot of time looking at the
question of concentration in the media. I just think that there
is a link between the rise of vulgar, overly violent media with
the fact that we've lost a lot of local ownership, and I hope
we'll explore it.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Wyden.
Senator Nelson?
STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson. Mr. Chairman, may I enter my statement in
the record?
The Chairman. Without objection.
[The prepared statement of Senator Nelson follows:]
Prepared Statement of Hon. Bill Nelson, U.S. Senator from Florida
Mr. Chairman, I take special interest in this issue because the
next Super Bowl will be played in my home state of Florida,
specifically in Jacksonville. I am curious whether one year from now we
will be seeing the same sort of halftime show.
It is more evident than ever that Americans are concerned about the
indecent and violent programming being broadcast over the public
airwaves. The recent Super Bowl halftime show is only the latest in a
long line of increasingly indecent programming.
Far too often, people lose sight of the fact that the airwaves used
by television and radio broadcasters are owned by the public. Because
of this, the law is clear that broadcasters have the responsibility to
act in the public interest.
The outpouring of anger we have seen in the last 10 days since the
Super Bowl has helped to crystallize this issue. Millions of families
were gathered to enjoy the American pastime of watching the Super Bowl
and the halftime entertainment. CBS instead provided viewers with a
highly sexualized halftime show that ended in a very inappropriate
manner.
That type of programming simply was not suitable for family-hour
television viewing. Some say: if parents don't like what's being shown
on the television, then turn the station. That is not the answer.
Parents have an expectation that Super Bowl programming will be
suitable for everyone in the family to watch.
I appreciate hearing today from the FCC's Commissioners. I know
that the FCC has attempted to strengthen its indecency enforcement in
several ways. This Committee has tried to give the FCC enhanced tools
to do that important work, such as allowing much higher fines to be
levied against broadcasters. Frankly, broadcasters also should do their
part to exercise some better self-censorship.
Also, I note that I will continue to examine whether higher levels
of consolidation in media ownership have played a role in indecent and
violent programming.
Broadcasters must realize that the government has given them the
privilege of using the public's airwaves. Continued abuse of that
privilege will take us down a road that no one wants to travel.
I thank the Chair and look forward to hearing the testimony of the
witnesses today.
Senator Nelson. And I'll just state to the Commissioners,
in addition to what's been said here, I have a personal
interest in this because the Super Bowl is going to be in
Jacksonville next year and I don't want this kind of stuff in
the state of Florida. And you all have a responsibility to draw
the line in the sand and stop the trend that we're on. And I
would suggest that it's not only about this kind of stuff,
activities that are questionable to be broadcast, but it's the
whole thing of this consolidation, and increasing the
percentage of the total audience that folks can have, and
cross-ownership.
Just today, an economic earthquake was announced, that
Comcast is now going to try to acquire Disney and ABC. So here
we go, the trend of consolidation is continuing. And you've got
to have a regulatory authority that will do something about it
and set some boundaries.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Nelson.
Senator Dorgan?
STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
Senator Dorgan. Mr. Chairman, I assume everything has been
said. I've been at a different hearing. And I'm pleased to be
here. Thank you for holding this hearing.
Let me also say, this is not just about the Super Bowl.
It's not about censorship. There is a healthy dose of common
sense that's needed, in my judgment, about what should be
broadcast over airwaves that belong to the American people, in
radio and television. And I think every parent in this country
knows that the voices of indecency--obscenity, violence, and
profanity--grow louder and louder and louder on broadcast
television and radio, and parents are furious, and should be.
Now, the hood ornament on bad judgment, in my opinion, was
when a Federal agency recently ruled that the ``F'' word can be
used on broadcast television as long as it is used only as an
adjective. I understand there's some work now to try to
overturn that ruling. But when I read about it, I thought,
``Have we lost all common sense?'' What on earth is happening?
Let me just make this point. None of this is new. We're
here because of a halftime performance at the Super Bowl, but
none of this is new. You, Mr. Chairman, Senator Hollings,
myself, and many others on this panel have talked about these
issues and the diminished standards and the more coarse
language and what is happening in broadcast television and
radio for years and years and years. At some point, common
sense has to intervene.
Again, I hope, whether it's a regulatory agency taking a
look at an issue that is so simple, such as the use of the
``F'' word on broadcast television, or issues such as the
amount of money that ought to be levied as fines, revocation
hearings, or allowing local affiliates to choose to preempt
programming that they find indecent or offensive to their
communities, I hope we finally perhaps over this issue will
begin to make some progress.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Dorgan.
We welcome our colleague, Senator Graham, to the Committee.
Please proceed, Senator Graham.
STATEMENT OF HON. LINDSEY O. GRAHAM,
U.S. SENATOR FROM SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman, and I'll be very
brief.
I appreciate the opportunity to testify. And I find it a
bit ironic that those of us in politics, we've tried to clean
our own house, because political debate and discourse in
advertising has gotten to be trash, and we finally acted,
because of Senator McCain's leadership and others, and we're
trying to regulate ourselves. I think it's a great idea that if
you run a political commercial explaining why your opponent's a
scumbag in 20 different ways, you've got to end the commercial
saying, ``I approved this ad.''
So I think it's time for us all to take a hard look at
ourselves, and the public needs to take a hard look at itself.
We're up here--you know, never let it be said that I wasn't
part of political piling on. That's why I'm here today. This is
a big issue. I'm working with Senator Brownback, who's been a
leader on this. Senator Hollings has been talking about it for
a long time, about what to do.
But at the end of the day, as Senator Breaux said, people
watch this because--well, people make the product, because
people want to watch it. Every show has a production cost, and
they figure there are enough people who want to watch this
stuff, so they produce it.
And consumers need to not feel so helpless. I think we've
gotten to a state in America where if the government doesn't
act, there's nothing we can do. Abercrombie & Fitch had a
advertising magazine that was sent to homes, and people
rebelled, and they stopped. So my message here to the public
is, don't sit on the sidelines yourselves. If you don't like
what you see, let people know. Call the Commission, call the
advertisers. Sex sells. It always has, and it always will. But
let me tell you, it has gotten to the point to where it really
is hurting families.
The reason I'm here--and I'm, by no means, a prude; and
there's some hypocrisy about all of us preaching about this
stuff, to hear the ``F'' word and not to use it, but you're
right, there should be some boundaries. And Senator Boxer was
talking about children. That's why I'm here. I was at the ball
game with some friends, and--I don't have any kids, but there
were two pre-teens in the crowd, and it just made everybody
uncomfortable.
And why are we doing this? Money. The only reason this
works is because of money. There's a lot of money in
sensationalizing on television, and they should have to pay a
lot more money. And I think the artists should assume some
liability. The whole argument is that the television network
didn't know; this was made up at the end. Well, then maybe the
artists should sign a form that, ``If I do anything indecent,
I'm going to have to pay, myself.'' So we need to bring
consequences to the table.
And my final thought, this Committee, Mr. Chairman, under
your leadership, with Senator Hollings, acted last summer. This
is not a new issue. It would be political malpractice for the
leadership of the Senate, Republican and Democrat, not to bring
a bill to the floor. People have had it. And if we put this off
for another day, woe be unto us.
So I hope our leadership's got the message. We need to
vote, and we need to vote soon.
Thank you for having me.
[The prepared statement of Senator Graham follows:]
Prepared Statement of Hon. Lindsey O. Graham,
U.S. Senator from South Carolina
Good morning Mr. Chairman, Senator Hollings, and members of the
Committee. I appreciate the opportunity to appear before you today and
I commend you for holding this hearing to address the indecent and
obscene material that continues to flood television and radio
broadcasts.
For a long time, I've been concerned about the growing number of
indecent, obscene, and profane material that shows up on our public
airwaves. The Super Bowl halftime show is only the most recent and
widely publicized incident of this problem. An estimated 90 million
people watched the Super Bowl. Many of those viewers were probably
young children, excited about the chance to watch their favorite NFL
player score a touchdown, and instead were witness to a deplorable
stunt. I, like many others, was offended by this classless act. I
applaud the Federal Communications Commission (FCC) and support its
decision to launch an investigation into this broadcast. It is
encouraging that the FCC is looking into punishing those responsible
for broadcasting this type of offensive material, particularly during a
time when many families are watching television together.
Of course, we all know about the incident that occurred during last
year's NBC broadcast of the Golden Globes, when U2's lead singer, Bono,
used profanity during a speech. Although the FCC ruled that the
expletive was not used in an obscene or profane way, I am encouraged
that Commission Chairman Powell has asked other members to overturn the
decision. I was disappointed with the initial decision and encourage
the FCC to implement stricter enforcement of indecency standards. I do
note that the FCC will have issued 18 proposed indecency forfeitures
for a total of $1.4 million in proposed fines since Chairman Powell
took office in January 2001. This total significantly succeeds the
$850,000 in proposed fines handed down during the prior seven years
under two prior commissions. This may be a result of the FCC's
increased enforcement or declining standards by the networks. Whichever
it is, there is still much more that needs to be done and I recognize
that it is Congress' job to enable the FCC with sufficient tools to
better fight indecency on our airways.
The halftime show and Golden Globes are just two high profile
examples of the inappropriate, offensive, and embarrassing material
broadcasted on our airwaves every single day. We have stood on the
sidelines for too long and therefore, we have let indecent programming
get out of hand. As lawmakers, we need to do more to protect the public
from indecent programming. We must take strong measures to rid the
public airways of indecency, obscenity, and profanity.
Yesterday, Senator Brownback and I introduced S. 2056, the
``Broadcast Decency Enforcement Act of 2004.'' This bill was introduced
in the House by Representative Fred Upton, whom I've been working with
for some time in efforts to fight against the broadcasting of indecent
material. S.2056 would allow the FCC to issue fines ten times greater
than they can issue now for violations of broadcast decency standards.
The maximum fine for a violation would increase from $27,500 to
$275,000, and those that commit continuing violations could be fined up
to $3 million. This bill will cause broadcasters to think twice before
allowing material on the airwaves that may be indecent.
The current maximum fine of $27,500 is no longer punitive in
nature. A $27,500 fine is equivalent to one eightieth the cost of a
thirty second Super Bowl ad. By imposing larger penalties, broadcasters
will be less likely to take chances in airing material that may violate
our indecency laws.
We need to make sure broadcasters air appropriate programming,
especially when children are likely to be in the audience. There is a
high standard all Americans should expect. This standard not only
applies to local programming, but large networks as well. Large
networks also need to realize that they are not immune from tough
penalties. It is our job to make sure broadcasters live up to that
standard by passing laws that will serve as an effective deterrent to
those who consider airing obscene, indecent, and profane material.
I am encouraged by the widespread support the ``Broadcast Decency
Enforcement Act'' has received. The FCC has endorsed this bill, as well
as the Administration. Family groups such as Focus on the Family have
also expressed their support. I urge my colleagues to join in the fight
to clean up our airwaves. The FCC has an important role in protecting
Americans, especially children, from indecent programming. We must give
the FCC the necessary tools to enforce indecency restrictions in the
most effective manner possible.
Mr. Chairman, once again I applaud the Committee for holding this
hearing and for your commitment to protect America's children from
indecent broadcasting.
The Chairman. Thank you very much, Senator Graham, and we
appreciate your patience, and we appreciate your testimony.
We'd now like to hear from the Honorable Michael Powell,
who's the Chairman of the Federal Communications Commission,
and the other Commissioners, who are the Honorable Kathleen
Abernathy, the Honorable Michael Copps, the Honorable Kevin
Martin, and the Honorable Jonathan Adelstein.
I welcome the Commissioners. I think that the Commissioners
understand the mood here, and perhaps in their remarks they
could respond to some of the comments of the Members of the
Committee. And I thank all of you for coming today. Chairman
Powell, it's always a pleasure to have you here before the
Committee, and we look forward to your statement.
We'll begin with you, Chairman Powell.
STATEMENT OF HON. MICHAEL K. POWELL, CHAIRMAN,
FEDERAL COMMUNICATIONS COMMISSION
Chairman Powell. Thank you, Mr. Chairman. Good morning to
you and the distinguished Members of the Committee. It's always
a pleasure to be here with my colleagues.
The infamous Super Bowl show, which I think I agree with
Senator Boxer, was more than just the final incident, but was
outrageous throughout. Not only was it outrageous and offending
to children, I think it's important to note it's enormously
degrading to women to suggest that was proper behavior. But it
is just the latest example in what we've noted is a growing
list of deplorable incidents on the Nation's airwaves. The
increasing concern about coarseness has resulted in a dramatic
rise in public concern. We've received 200,000 complaints on
the Super Bowl incident alone. A recent Time/CNN study found
that 47 percent of Americans said the incident marked, quote,
``a new low in bad taste.'' I couldn't agree more, as a parent
of two young sons, about the erosion of common decency
standards on television.
As a member of the FCC, I can assure all Americans here
today that the Commission will continue to protect children and
respond to the public's concerns. Under our authority, and
consistent with the First Amendment, we will continually
vigorously enforce our indecency rules. To punctuate that
point, within hours of the Super Bowl incident, we launched our
investigation into whether it violated the law. This
investigation will be thorough and swift. In addition, a
decision to propose to overturn the bureau's decision in the
Golden Globe case about the ``F'' word is imminent.
Protecting children and giving parents the tools to
restrict inappropriate programming from unexpectedly invading
our family rooms requires action, however, on all fronts. The
efforts first begin with the Commission. This Commission, me
and my colleagues, are pushing what I think is the most
aggressive enforcement regime in decades. This Commission alone
has proposed nearly ten times the level of indecency fines of
the previous Commission, and two times the two previous
Commissions combined. But it is not enough, and we are
continuing to work to sharpen our enforcement blade even more.
Let me just list some of the things we have done, and are
doing. First, we recognize that $27,500 fines constitute
peanuts to a multimillion dollar operation, and we are seeking
ways to increase penalties on our own against those who engage
in lasting and repetitive incidents by taking steps routinely
to impose the statutory maximum for serious violations. We also
have put broadcasters on notice that we will, as you
recommended, treat multiple incidents and utterances, if in a
single programming, as constituting multiple indecency
violations. We have also put broadcasters on notice in recent
decisions that we will begin license revocation proceedings for
egregious and continuing disregard of decency laws. We will
pursue indecent programming on television more aggressively. We
will continue to work aggressively to answer complaints in a
timely manner. Just in the last 2 years, we've made significant
progress on backlogs. Of the 14,000 complaints filed in 2002,
only 30 remain pending, and many of them are on the way to the
Commission now. And we will continue to vigorously monitor
industry developments to see if they, indeed, meet the
challenge.
The Commission has already begun wielding our sword in
several important respects. We proposed some of the largest
fines in indecency enforcement history, including a proposed
forfeiture of over $350,000 in the case of a vile and
disgusting broadcast on sexual content in Saint Patrick's
Cathedral in New York. We recently proposed a fine reaching
nearly $750,000 levied against Clear Channel stations for over
20 indecency violations. And, finally, last month we opened a
new front in our efforts to protect children, fining a San
Francisco television station the maximum when it aired a
program in which a performer exposed himself in front of the
camera, making it one of the first fines against television in
the Commission's history. And just last week, we took steps to
challenge the broadcasting industry to commit themselves to
protecting children.
Senator Hollings, we don't believe voluntary efforts are
the sole answer. Enforcement is an important answer. But
broadcasters have their own responsibility to take charge of
their own industry, and we've challenged them to do so. There
was a long, proud tradition of the broadcasting industry having
a code of conduct that was used and faithfully employed. It was
struck down in the courts. I think there are ways to revive it,
and we challenge them to do so.
We also agree with many of the comments here today that you
can't have an honest conversation about content in the media if
you're not willing to talk about the cable industry. We've also
written to them, challenging them to look for new ways to
protect their interests, and we ask the Committee to lead a
debate about the proper ways to consider the concerns with
cable, understanding different legal and First Amendment
status.
But to succeed fully in protecting our children from the
proliferation of inappropriate and excess vile content,
Congress also has a critical role to play, and I applaud the
efforts of Senator Brownback, Senator Graham, Senator Hollings,
other Members of this Committee and the Chairman, for trying to
move bills that are important on this issue.
We definitely need the increased enforcement authority. We
have said so repeatedly. And, as this Committee has recognized,
it is an important component to effective deterrence. The time
has come--to echo the words of Senator Brownback--the time has
come for the Commission, Congress, and the industry, and the
public, as Senator Graham said, to take the necessary steps to
prevent allowing the worst of television and all that it has to
offer from reaching unsuspecting children. I commit to you that
this Commission, me and my colleagues, will continue to put our
resources into vigorously enforcing the rules. And I urge
Congress to assist us in that effort and urge the Commission to
do its part--urge the industry to do its part to protect our
children.
Thank you, and I await your questions.
[The prepared statement of Chairman 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 percent 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.
The Chairman. Thank you very much.
Ms. Abernathy?
STATEMENT OF HON. KATHLEEN Q. ABERNATHY,
COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION
Commissioner Abernathy. Good morning, Mr. Chairman, Senator
Hollings, and distinguished Members of the Committee. I
appreciate the opportunity to appear before you this morning to
discuss the FCC's efforts to protect children from indecent and
violent programming.
This hearing is a most timely response to an increasingly
urgent set of problems, and the 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 is not simply an
issue with regard to excessive sexual content in mainstream
programming; it is also reflected in the excessively violent
content of material distributed to children via broadcasting
and the Internet, as pointed out by Senator Boxer. This has
occurred despite the Commission's vigorous enforcement of the
indecency laws, despite our announcement that these efforts
would be further intensified by per-utterance fines, despite
our putting broadcasters on notice that they're putting their
licenses at risk, and despite pending Congressional legislation
to increase our forfeiture authority.
Clearly, some broadcasters have 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 already pointed out, the 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. So, for example, relying on past
Commission rulings, the enforcement bureau recently issued a
decision determining that Bono's language used during 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 this. It's very hard to imagine many contexts where the
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 live broadcast radio or
TV programming. Therefore, in addition to current, and even
enhanced, enforcement measures, we should improve and amplify
forward-looking safeguards.
Our laws try to help parents understand and control the
programs their children watch in several different ways.
Although our rules limit the hours during which indecent
programming may be broadcast, it is perhaps even more important
to understand what options are available to protect children
from the adult programs that broadcast during the main part of
the day, programs that may not be indecent, but include
excessive violence, excessive sexual content, or are simply
inappropriate for children. The V-chip and the programs ratings
legislation that Congress passed are intended to help parents
understand the content of broadcast programs and control access
into the homes.
Is this system working well? Clearly not. Most parents do
not understand how to use the V-chip and are unaware that a TV
ratings system exists. And the shortcomings of these early
warning systems are even more troubling as applied to violent
programming, which, unlike indecency, is not subject to FCC
enforcement sanctions. This is not because violence is less
prevalent on television than indecency. On the contrary. As
pointed out by Senator Hollings, a recent report by the Kaiser
Family Foundation found that nearly two out of three programs
contained some violence, averaging six violent acts per hour.
I know that you've grappled with the many legal and
practical issues involved in attempting to legislatively define
and limit televised violence, but, in the absence of 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 Governmental Affairs Bureau
to create a new website, the FCC's Parents Place. Parents Place
explains the ratings systems, including what they mean and when
the ratings are displayed, and directs parents to websites that
identify age-appropriate programming by locality. It also
explains the V-chip and 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
parents.
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'll need to enlist the help of
broadcasters if we are ultimately to address the core of
consumer concerns, because the issues encompass more than
simply what is or is not indecent programming.
Mr. Chairman, if there is anything positive at all 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 violent programming
and while also continuing to tap into the best of what
broadcasting has to offer.
In response to these challenges, I fully support both 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 this
Committee may wish.
Thank you.
[The prepared statement of Commissioner Abernathy follows:]
Prepared Statement of Hon. Kathleen Q. Abernathy, Commissioner,
Federal Communications Commission
Good morning Mr. Chairman, Senator Hollings, and distinguished
Members of the Committee. I appreciate the opportunity to appear before
you this morning to discuss the FCC's efforts to protect children from
indecent and violent 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.
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\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 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 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 to 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.
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\2\ See, e.g., Parents and the V-Chip 2001, July 2001, The Henry J.
Kaiser Family Foundation.
---------------------------------------------------------------------------
The shortcomings of the present parent advisory-based system are
more troubling, especially when it comes to facilitating the screening
of violent programming which, unlike indecency, is not subject to FCC
enforcement 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.
Moreover, identifiable harm resulting from televised violence has been
documented: laboratory experiments have found that exposure to media
violence increases children's tolerance for real-life aggression.\3\
---------------------------------------------------------------------------
\3\ TV Violence, Spring 2003, The Henry J. Kaiser Family
Foundation.
---------------------------------------------------------------------------
This Committee has grappled with the many legal and practical
issues involved in attempting legislatively to define and limit
televised violence. In the absence of statutory authority, 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 website 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 websites 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 is, 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 both 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.
The Chairman. Thank you very much.
Dr. Copps?
STATEMENT OF HON. MICHAEL J. COPPS, COMMISSIONER,
FEDERAL COMMUNICATIONS COMMISSION
Dr. Copps. Mr. Chairman, Senator Hollings, Members of the
Committee, thank you for having us up here this morning to talk
about an issue that has all America talking. This is not the
first time I have expressed my concern to this Committee on the
important issue of indecent and violent programming on the
public's airwaves. America has a problem. And this Committee
has responded to that problem with vision and vigor, and that's
exactly what this battle against indecency requires.
There is frustration out there, and there is anger. 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 2 weeks ago, before the Super Bowl, when all the
Commissioners were in San Antonio. Parents lined up to talk
from their heart about programming's addiction to sex,
violence, and profanity. People all across this land of ours
are demanding action--action now--to stop the increasing sex
and violence bombarding our airwaves.
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 they're 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, and the airwaves keep
deteriorating.
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 you can give us. 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.
Number one, use our full authority to punish
transgressors--license revocation, license non-renewal, and
higher fines. We need to send the more outrageous transgression
and repeat offenders to license-revocation hearings. We need to
do it now. The Commission has never used this authority, and
nothing would send so powerful a message to those who produce
these programs. We need to impose meaningful fines for each
utterance, rather than more 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
advertisements, as well as programs.
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 violent programming.
Companies that do not serve the public interest should not hold
a public license.
Two, reform the complaint process. The Commission should
commit to addressing all complaints within a specific
timeframe, such as 90 days. It's the Commission's
responsibility to investigate complaints that the law has been
violated, not the citizen's burden to prove the violation.
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. Senator Hollings, Senator Brownback, and
others on this Committee have been eloquent champions of action
on this front. The Commission needs to move on this now.
Four, convene an industry summit that includes
broadcasting, cable, and DBS. Industry does need 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 today, who has not heard my personal plea on this over the
past two and a half years, and I'm pleased to learn that the
Chairman is joining me in this effort. Broadcasters used to
police themselves with a voluntary code. It wasn't perfect, but
it was credible. Why can't they try to do it again? This summit
needs to includes--absolutely must include--cable and satellite
providers. Perhaps cable could explore such options as offering
a family tier. 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'm mindful of Senator Hollings' admonition that voluntary is
no substitute for us doing our job and for us enforcing the
law; nor can it be allowed to let anybody off the hook. Still,
I believe it could contribute.
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
preempt 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, and 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
protections 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 board. We opened the doors 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 steam down the
track. As was already mentioned, the wires reported this
morning a bid by Comcast to take over Disney. And I think we'll
all need to think about how that could affect the ability to
control both 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're going to see
this job through.
So thank you for this hearing. It's a true public service.
Thank you for the commitment and leadership so many of you on
this Committee bring to this legal and moral issue. And I look
forward to hearing your comments and further thoughts on all of
this.
[The prepared statement of Commissioner Copps follows:]
Prepared Statement of Hon. Michael J. Copps, Commissioner,
Federal Communications Commission
Mr. Chairman, Senator Hollings, Members of the Committee, I am
honored to appear before you again this morning. This is not the first
time that I have addressed this Committee on the important issue of
indecent and violent programming on the public's airwaves. I appreciate
the attention you have devoted to this issue and for inviting me 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 time-frame 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. Senator Hollings, Senator Brownback and others on this
Committee have been eloquent champions of this for years.
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, Senator Hollings, 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 has
already demonstrated its commitment and leadership on several of the
specific items I have discussed here this morning. I look forward to
hearing your comments and further thoughts on all this.
The Chairman. Thank you very much.
Mr. Martin?
STATEMENT OF HON. KEVIN J. MARTIN, COMMISSIONER,
FEDERAL COMMUNICATIONS COMMISSION
Commissioner Martin. Thank you, Mr. Chairman and
distinguished Members, for the invitation to be with you this
morning.
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 programming 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 had increased 95 percent from
1998 to 2002. 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. Parents who
want to watch television together with their children too often
feel they have too little to watch, and 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 choices
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. 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 wrote a law review article about the need to
provide parents such tools, and I request that the article be
submitted into the record today. 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 him
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
families and to protect their children from violent and
indecent programming.
We need to do more. And I believe there are four steps we
should take now to begin to address this problem. First, we
should more 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. And 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 urged the
Commission to do more. In fact, 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 this approach, I would have fined the
Detroit Radio Show, for example, $247,000, instead of only
$27,000 last year.
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.
Profanity on television and radio appears to be widespread, yet
I have not found even a single instance in which the Commission
concluded a broadcast was profane.
Finally, we should respond to the thousands of complaints
that are pending, and make quick responses a matter of course
and within a specific deadline.
Two, 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 that want to keep
coarser 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
the direct government oversight of network content. We should
clarify immediately that local broadcasters have, not only this
opportunity, but this obligation of serving their 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. And broadcasters should bring back this
family time.
While I will continue to call for the industry to action,
the industry can take action on its own. A year ago, Paxson
Communication 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 concept of a family hour and the
importance of it.
Fourth, we should address cable and satellite programming.
Broadcast 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 comprehensive
solution. Over a year ago, I urged cable and satellite
operators to take action. I continue to believe something needs
to be done to address this issue.
As I have suggested, I think cable and satellite operators
could offer an exclusively family friendly programming tier as
an alternative to the expanded basic tier on cable or the
initial tier on DBS. 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 it would help them protect their children
from violent and indecent programming.
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.
Finally, I am sympathetic to 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 competing on basic cable networks, and
radio personalities that we have fined for indecency violations
have just moved 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, basic
indecency and profanity restrictions may be a viable
alternative that should be considered.
In conclusion, I share your concern about the increase in
coarse programming on television and radio today, and I believe
something needs to be done. I hope that the proposals for
action that I have made today can help, and I welcome your
guidance.
Thank you, and I look forward to your questions.
[The prepared statement of Commissioner 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 percent 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).
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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
percent 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.
______
Federal Communications Law Journal--May 2003
Family-Friendly Programming: Providing More Tools for Parents
Kevin J. Martin *
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\*\ Commissioner, Federal Communications Commission. Commissioner
Martin was nominated to be a member of the FCC by President George W.
Bush on April 30, 2001, and was sworn in on July 3, 2001. Mr. Martin
serves a five-year term expiring in June 2006. The Author thanks
Catherine Bohigian, his legal advisor on media issues, for her
assistance on the preparation of this Essay.
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Since then-Chairman of the Federal Communications Commission Newton
Minow dubbed television a ``vast wasteland'' in 1961, the medium has
changed dramatically. Consumers today have so many programs from which
to choose that the complaint is rarely a lack of high-quality
television shows. Rather, the concern for many consumers is how to
navigate these teeming waters. This course-plotting can be a particular
challenge for parents who desire to watch television together with
their children. I therefore encourage the television industry to
provide these parents more navigational tools.
Consumers today have exponentially more viewing options, and they
can choose from a remarkable array of programs, both on broadcast and
on subscription television. They can view these programs using digital
technology that produces a crisp, clear color picture far surpassing
the fuzzy black-and-white world of 1961. Importantly, the burgeoning
competition among television networks has resulted in some of the best
programming ever produced. It also has enabled such diversity that
niche channels, which devote 100 percent 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.\1\ 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,\2\ but
the service was largely used to extend the reach of broadcast signals,
not to offer different programming.
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\1\ C. Edwin Baker, Media Concentration: Giving Up on Democracy, 54
Fla. L. Rev. 839, 867 (2002).
\2\ Cable History, The Cable Center, http://www.cablecenter.org/
history/timeline/decade.cfm?start=1960 (last visited Feb. 27, 2003).
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Over the last four decades, the television landscape has changed
dramatically. Broadcast television options have grown considerably.
Just since 1980, the number of full-power television stations has
increased almost 70 percent.\3\ 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 percent and 97 percent of U.S. television homes,
respectively.\4\ More recently, Paxson Communications launched PAX TV
in 1998, reaching 85 percent of the country.\5\
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\3\ 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].
\4\ See WB Website, at http://www2.warnerbros.com/web/all/link/
partner.jsp?url=http://www.thewb.com (last visited Feb. 27, 2003);
Viacom Website, at http://www.viacom.com/thefacts.tin (last visited
Feb. 27, 2003).
\5\ See Pax Communications Website, at http://www.pax.tv/about/
(visited Feb. 27, 2003).
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The current transition to digital television now offers viewers not
only more choices, but new opportunities. Broadcasters are beginning to
take advantage of the many benefits digital will bring to consumers--a
markedly sharper picture resolution and better sound; an astounding
choice of video programming, including niche programs and movies on
demand; CD-quality music channels of all genres; interactivity;
sophisticated program guides; and new, innovative services.
The most remarkable development since the 1960s, however, may be
the explosion in the number of television networks, made possible by
the development of multi-channel video programming distributors
(``MVPDs''), including cable and satellite.\6\ 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.\7\
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\6\ In addition to cable and satellite, MVPD technologies include
home satellite dishes, wireless cable systems, and satellite master
antenna television systems.
\7\ 2002 Review, supra note 3, para. 25.
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In addition, the number of households accessing these multi-channel
services has increased significantly since the 1960s. In 1976, there
were still only 17 percent of U.S. households--fewer than 10 million
homes--served by cable.\8\ By 2002, cable reached 96 percent of
television viewing homes, with 73 million subscribers.\9\ DBS is
available nationwide and now has nearly 19.8 million subscribers.\10\
Today, 85.3 percent of households subscribe to a MVPD.\11\
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\8\ 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).
\9\ Cable History, The Cable Center, at http://www.cablecenter.org/
history/index.cfm (last visited Feb. 27, 2003).
\10\ Satellite TV Subscriber Counts, Sky Report, at http://
www.skyreport.com/dth_counts.htm (last visited Feb. 27, 2003).
\11\ Annual Assessment of the Status of Competition in the Mkt. for
the Delivery of Video Programming, Ninth Annual Report, 28 Comm. Reg.
(P & F) 159, para. 5 (2002) [hereinafter Ninth Video Competition
Report].
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Long gone are the days when broadcasters commanded 100 percent 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.\12\ Other sources indicate the shift may be even
more dramatic, with broadcast drawing only 37 percent, and cable
programming drawing 53 percent of TV viewers.\13\ 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.\14\
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\12\ Id. para. 24 (citing Nielsen Media Research, Total Day 24
Hours 6 am-6 am: Total U.S. 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 percent due to simultaneous multiple set viewing.'' Id. para. 24
n.39.
\13\ 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.
\14\ 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
U.S. Ratings by Viewing Source July 2000-June 2002, Oct. 2002).
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In summary, the advances in television and the development of
competing providers of video programming have resulted in unprecedented
choice for consumers, particularly the vast majority that subscribe to
a MVPD. Moreover, some of the best television ever produced is aired
today. Yet, as discussed below, the picture is not entirely rosy. For
families, the situation can be somewhat of a Catch-22. If you subscribe
to a MVPD, you can get a significant selection of high-quality, family-
friendly programming, but you also are forced to buy some of the most
family-unfriendly programming produced for television. If you take the
route of allowing only broadcast television into your home, you avoid
some of the programming that may concern you the most, but your
primetime viewing options as a family may be few and shrinking, and you
will have missed out on the great programming that cable and satellite
have to offer. As I explain below, broadcasters and MVPD operators can
help parents out of this situation, and I urge them to do so.
Broadcast Challenge: Family Viewing Hour
To the dismay of many parents, the increased competition for
viewership has led broadcasters to increase markedly the amount of
coarse programming and decrease the family-friendly programming they
provide their viewers. This shift is particularly notable during
primetime viewing hours, when families are most likely to gather around
the television together.
Studies have documented this unfortunate trend. A report on the
1999-2000 television season found that two out of every three shows
included sexual content, an increase from about half of all shows
during the 1997-1998 season.\15\ 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.\16\ 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.\17\
---------------------------------------------------------------------------
\15\ 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.
\16\ Kaiser Family Found., Sex on Television 3: Content and
Context, Biennial Report of the Kaiser Family Foundation 14 (Feb.
2003).
\17\ Press Release, Parents Television Council, What a Difference a
Decade Makes: A Comparison of Prime Time Sex, Language, and Violence in
1989 and '99 (Mar. 30, 2000), available at http://www.parentstv.org/
PTC/publications/release/2000/pr033000.asp.
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As a result, parents wanting to watch broadcast television with
their children at the end of the day--when most viewers do still turn
to broadcast television--may feel like they have fewer options, despite
all the growth over the last decades. I do not dispute that parents
could respond by turning the television off, but there should be a
better answer. Accordingly, I challenge broadcasters to devote the
first hour of prime time to family-friendly programs--programs that
parents and children can enjoy together.\18\
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\18\ 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 Website, Questions/Answers, at http://www.ana.net/family/
default.htm (last visited Feb. 27, 2003).
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The notion of a family-oriented viewing hour is not a new one. In
fact, lawmakers, regulators, and members of the television industry
recognized such a need almost thirty years ago. In 1974, the Federal
Communications Commission (``FCC'') received nearly 25,000 complaints
about violent or sexually oriented programming.\19\ 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,\20\ Congress instructed the FCC to outline actions it had
taken or planned to take to protect children from excessive violence
and obscenity.\21\ The FCC staff recommended several options, including
issuing notices of inquiry, notices of proposed rulemaking, and policy
statements.\22\ 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.\23\
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\19\ 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).
\20\ 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).
\21\ 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).
\22\ Writers Guild of Am., 609 F.2d at 359.
\23\ Id.
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In April 1975, the National Association of Broadcasters (``NAB'')
responded to the growing concern about television content by announcing
a family viewing policy, which it incorporated into the NAB Code of
Conduct for Television.\24\ 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.'' \25\
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\24\ 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.
\25\ Writers Guild of Am., 609 F.2d at 358 n.2. The amendment
continued:
In the occasional case when an entertainment program in this time
period is deemed to be inappropriate for such an audience, advisories
should be used to alert viewers. Advisories should also be used when
programs in later prime time periods contain material that might be
disturbing to significant segments of the audience.
These advisories should be presented in audio and video form at the
beginning of the program and when deemed appropriate at a later point
in the program. Advisories should also be used responsibly in
promotional material in advance of the program. When using an advisory,
the broadcaster should attempt to notify publishers of television
program listings.
Special care should be taken with respect to the content and
treatment of audience advisories so that they do not disserve their
intended purpose by containing material that is promotional,
sensational or exploitative. Promotional announcements for programs
that include advisories should be scheduled on a basis consistent with
the purpose of the advisory.
Writers Guild of Am., 609 F.2d at 358 n.2.
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In 1983, the Department of Justice brought suit against the NAB,
challenging the NAB Code on antitrust grounds.\26\ Although the suit
involved only the code's restrictions on television commercials,\27\
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.
---------------------------------------------------------------------------
\26\ United States v. NAB, 536 F. Supp. 149 (D.D.C. 1982).
\27\ Id.
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Recently, there have been efforts to reinstitute family viewing
policies. In 2001, twenty-eight members of Congress signed a letter to
the presidents of the major television broadcast networks asking them
to voluntarily restore the Family Hour.\28\ 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.'' \29\
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\28\ 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.
\29\ Children's Protection Act of 2001, S. 124, 107th Cong.
Sec. 3(a) (2001).
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Advertisers also are taking steps to encourage the development of
family-friendly programming. A group of more than forty major national
advertisers, working through the Association of National Advertisers,
have formed the Family Friendly Programming Forum to address two
concerns: ``the dwindling availability of family friendly television
programs during prime viewing hours''; and ``the TV imagery, role
models, themes and language to which our young people are exposed.''
\30\ 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.'' \31\ 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).\32\
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\30\ Family Friendly Programming Forum Website, FFP Mission, at
http://familyprogram
awards.com (last visited Feb. 27, 2003).
\31\ Id.
\32\ Id. at Family TV Awards.
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Even more promising, ABC appears to be embracing the idea of the
family viewing hour. This year it launched its ``happy-hour'' strategy,
in which the network airs family-friendly programs from 8 p.m. to 9
p.m., in an attempt to capture a broad family audience. The reception
thus far has been positive, as the network has rebounded from a 23
percent drop in viewership last season.\33\
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\33\ Associated Press, ABC Gets a Feliz Navidad, Newsday, Dec. 11,
2002, at B31.
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In sum, I believe a voluntary commitment by broadcasters to devote
the first hour of prime time to family-friendly programming will be
good for families (and, one might think, good for business, as well). I
urge broadcasters to join this endeavor and collectively create at
least one hour, five days a week, when a family can turn to broadcast
television with comfort, confidence, and enthusiasm.
Cable and Satellite Challenge: Family-Friendly Programming Package
Broadcast, however, cannot be the end of the story. In a world in
which more than 85 percent 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 percent of
American parents now own a television equipped with a V-chip, less than
7 percent of those parents use it to block programs with violent or
sexual content.\34\ 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.
---------------------------------------------------------------------------
\34\ 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.\35\ 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.
---------------------------------------------------------------------------
\35\ 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.
The Chairman. Thank you very much.
Mr. Adelstein?
STATEMENT OF HON. JONATHAN S. ADELSTEIN,
COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION
Mr. Adelstein. Thank you, Mr. Chairman.
Mr. Chairman, Senator Hollings, Members of the Committee, I
appreciate your outstanding leadership on this issue in holding
this hearing and all the work you've done over the years on
this. Like many of you, I watched the Super Bowl with my
family; and, like millions of others, I was really appalled by
what I saw during the halftime show, not just for the shock
value of the stunt that happened at the end, but for the
overall crude performance in front of so many children, one in
five American children. And the advertising set a new low for
what should air during family time. A special occasion for our
families was truly disrespected.
Senator Brownback, Senator Hollings, I appreciate the work
you've done over the years on violence, and you talked about it
eloquently this morning. One of the ads I thought that was most
offensive personally, and hurt me the most, was a violent
trailer that aired for a horror movie. It showed terrifying
monsters, with huge fangs, attacking people. I literally had to
jump out of my chair to get in front of my child so he didn't
see what was happening on television. Other parents told me--
friends of mine--that they couldn't get to their remote
controls fast enough. I wonder how those who chose to broadcast
such violence can sleep at night when so many children went to
bed that night having nightmares. No parent should have to jump
in front of the TV to block their children from those kinds of
images. We need to help parents navigate the increasingly
difficult environment they face in today's media. They're
crying out for our help. Complaints are exploding that our
airwaves are increasingly dominated by graphic and shocking
entertainment.
Some have observed 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
owns CBS, as Senator Lautenberg pointed out. It's no
coincidence that MTV produced the halftime show, but the
network thoughtlessly applied the cable-programmer's standards
to the Super Bowl, the ultimate family event.
As a musician myself, I understand there's a role for
things like 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 legal right to block any channel they don't consider
appropriate for their children, and that choice just isn't
available on over-the-air television, and parents were
certainly taken by surprise.
As a parent and an FCC Commissioner, I share the public's
disgust with the increasingly crude radio and television
content that we're seeing. I've only served on the Commission
for about a year, but I'm proud that in that time we've really
stepped up our enforcement efforts. We need to ramp it up even
further. In my view, gratuitous use of swear words and nudity
have no place in broadcasting. We need to attack profanity head
on. We need to use that authority that Congress gave us. We
need to reverse the bureau's decision to allow profane words
just because they're in the form of an adjective.
I have supported going to the statutory maximum for fines,
but even this is woefully inadequate, and I welcome efforts by
you, Mr. Chairman and other Members of this Committee, in the
legislation that was approved by this Committee to let us
increase fines substantially across all of our areas of
jurisdiction.
In the meantime, I have pushed for new approaches to deter
indecency. These include fining for each separate utterance and
revocation hearings in serious repeated cases. I worked last
April to have the FCC put broadcasters on notice that we were
beginning this stronger enforcement regime. And now we need to
act more quickly when we get complaints.
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. So
it may take more than the FCC to turn this around.
Broadcasters have a big role to play. They need to show
more corporate responsibility. We grant them use of the public
airwaves to serve the public interest. They must rise above
commercial pressures and recognize the broader social problems
they may be compounding.
One question I have often asked myself is whether the
coarsening of our media is responsible for the coarsening of
our culture, or if it's vice versa. I think it's both. I think
they feed on each other. And I think media consolidation only
intensifies the pressures. Fast-growing conglomerates focus on
the bottom line above all else. Last summer, the FCC weakened
its media-ownership rules, and I think 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 community's standards. The
back and forth local affiliates have with networks is critical
in the fight against indecency. Time and again, we see them
fighting the networks, saying, ``You can't put that on. You
can't be serious.'' And we see that the networks respond and
pull back. The FCC has got to preserve that balance.
And, on the positive side, we've got to do more to protect
families. We should complete a 3-year-old rule-making 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 assaulted by what's broadcast at them. My job, and
our job here on the Commission, is to protect our families from
the broadcast of this kind of material. It's also our job to
promote healthy fare for children. After all, the airwaves are
owned by the American people, and the public is eager to take
some control back.
I'd be happy to answer any questions that you have.
[The prepared statement of Commissioner 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 e-mails 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.
The Chairman. Thank you very much, Mr. Adelstein.
Chairman Powell, I mentioned in my comment about the fact
that 85 percent of Americans now receive their television
program from cable and satellite. And, by the way, Mr.
Kimmelman suggests that perhaps people should be able to
purchase their channels a la carte, the same way we are able to
function when we go to the grocery store. We are not required
to buy additional commodities when we want to buy a loaf of
bread. I wonder if you could talk just a little bit about that
aspect of this issue.
Chairman Powell. I would agree that's one thing to explore,
and it has two sides to it. One, do you have to buy it in the
first place? And, two, if you get it as part of the package,
are you empowered with some control to deny that from coming
through? For example, most cable companies, I think
Commissioner Adelstein mentioned, have a legal obligation to be
able to block a channel or service from coming into your home
if you don't want it, even if it's part of your subscription.
So, you know, there are areas----
The Chairman. So you'd be paying for something that you
don't want anyway.
Chairman Powell. You could be, although I won't make the
arguments for them. Different programming have different costs
associated with them. But absolutely, the combination of what
packages you get and what rights you have to block programming,
I think, are the right places to look.
The Chairman. What about the overall issue of the fact
that--what regulatory authority do you have over the 85 percent
of Americans who are now getting it from cable and satellite?
Chairman Powell. The short answer is, little to none,
unfortunately. The statute that we administer, Section 1464,
specifically says utterances that are broadcast. In addition,
we have Constitutional limits that are different for
broadcasting, because the courts have ruled that cable, unlike
broadcast where the public airwaves are used, enjoys First
Amendment protection closer to that of a newspaper, so there
are a few more, you know, Constitutional constraints when you
look there, as well.
And then, finally, there has always been a tension, I
think, that plays into the Constitutional question about their
being a subscription relationship in which consumers have
purchased services. That's the court's view about them.
The Chairman. Well, there may be some difference of opinion
on that, and perhaps there may be a need for legislation. I
don't know what the answer, but it clearly--if 85 percent of
the American people are receiving these broadcasts via methods
that you no longer have any control over, I would think that
that would raise a significant issue.
While I have you, I just want to mention--and I'll ask the
other Commissioners if they have a comment--there's an article
in USA Today this morning. So much for predictions. Rupert
Murdoch, in News Corporation, would give a cable/satellite/TV
industry price war after taking over direct TV. The top U.S.
satellite service hit 12 million subscribers. The service plans
to boost average rates by more than 3 percent March 1. Comcast,
the Nation's largest cable operator will boost average cable
rates by 5.4 percent. Time-Warner cable by 4.9 percent. On and
on and on. The cable rates, satellite rates, continue to go up
in multiples of the rate of inflation in America.
We've been concerned about it on this Committee, we
continue to be concerned about it. There is nothing that I can
see that is injecting the kind of competition which brings
rates down. Instead, they are going up, as I say, in multiples
of inflation. And now, of course, we see this morning's paper,
that Comcast, the largest U.S. cable owner, is now going to
make a bid for Walt Disney. Where, in your view, does this
consolidation, that we've already seen to an obscene degree in
radio, stop? Where is the endpoint here? Is it OK for Disney to
be bought by Comcast? And then why don't they buy somebody
else? And then why doesn't Mr. Murdoch buy somebody else? And
then we have, as one of our colleagues is fond of saying,
``many voices and one ventriloquist.'' Is this of concern to
you and other members of the Commission?
Chairman Powell. I'll speak for myself, but I think all
would answer the same. Unquestionably, yes. And it stops where
we draw the lines, both in terms of our rules, what statutory
limits exist, and what the antitrust authorities and the
public-interest transactions permit.
This Commission has demonstrated it is not afraid, in
reviewing a transaction, from blocking a merger that it does
not believe is in the public interest. I don't know if Comcast
will get Disney or not. It's a hostile bid. If it does, a
merger of that magnitude will unquestionably go through the
finest filter that's possible at the Commission, I can assure
you.
The Chairman. I thank you, Chairman Powell. I just think we
need to be proactive on this issue, rather than reactive. And I
appreciate, more than I can tell you, your leadership of the
Commission. I'd like to hear the other Commissioners' views on
the two questions that I raised, quickly, because I'm about out
of time.
Ms. Abernathy?
Commissioner Abernathy. Clearly, it raises serious concerns
when you've got excessive concentration, and there's no doubt
in my mind----
The Chairman. First the issue of the broadcast----
Commissioner Abernathy. Oh, the broadcast and cable. It is
a difference that exists more in our minds than in reality. At
the time that we were given authority over broadcast indecency,
I think cable wasn't really there yet. It's how the law is
today. I think we'd need some legislative guidance if we wanted
to venture into the area of regulating violence and indecency
for cable. But I think that, given the fact that most children
don't even know the difference between broadcast and cable, it
makes sense to try and reconcile the two.
The Chairman. And the second question, you've answered?
Commissioner Abernathy. Yes, I think it's a serious
problem.
The Chairman. Dr. Copps?
Dr. Copps. On the first question, I don't know that I buy
into the theory that your favorite regulatory commission is a
toothless tiger when it comes to cable. Congress has struggled
with this for a long period of time--regulating, deregulating,
re-regulating, deregulating cable. But as some observers have
pointed out, it is so pervasive in our homes, so pervasive with
our children, I think you can make the argument that there's a
compelling government interest to do something about it. And,
indeed, we have a Supreme Court case--the Playboy case--that
says there is a compelling government interest in protecting
children against indecency in cable. The fight has been, How do
you find the least intrusive means to do that? We already have
some cable regulation. Cable has to go through franchising,
there are rights of way, there are public-access channels, and
all the rest. Cable does use the spectrum. You know, this idea
that they don't use the spectrum--DBS certainly does and cable
is using satellite and microwave spectrum, too.
Section 612(h) of the Act empowers the franchising
authorities at the local level, and the cable distributors, to
do something about lewdness, lasciviousness, profanity,
indecency, and even empowers a local cable distributor, if he
wants to put out a prospective policy prohibiting this kind of
stuff. So maybe there are some grassroots possibility, too. If
it doesn't come from----
The Chairman. We've seen that tried before----
Dr. Copps.--just from here, it can come from there.
The Chairman.--Doctor. We've seen that----
Dr. Copps. OK.
The Chairman.--track before.
Dr. Copps. Right. Well, maybe we ought to----
The Chairman. Pressures----
Dr. Copps.--try it again.
The Chairman.--brought to bear on the local operator, we
know, Doctor.
Dr. Copps. And the second answer, it'll stop when we get
serious about stopping concentration, this is the kind of thing
I've warned about in voting against a lot of these deals, and I
think it's just coming to----
The Chairman. Mr. Martin?
Dr. Copps.--fruition.
The Chairman. Thank you.
Commissioner Martin. First, Senator, I would point out that
I think we do have some indecency authority over satellite.
Technically, I think the provisions regarding indecency
actually apply to utterances per radio, and our Title 3 for
radio authority applies to DBS. We don't currently treat it
that way. We treat them more in the category of cable. But if
we wanted to, we could extend it there.
As I mentioned in my introductory comments, I think we
absolutely have to find a way to address the cable side, as
well, and I think that while there are legitimate First
Amendment concerns that some people have raised, there's no
First Amendment guarantee to be paid for the programming that
they're putting on, and I think that an a la carte option is
something that needs to more thoroughly be discussed. I think
that we have to find a way to have consumers to have more
choice in their cable--in what's going on with the cable, both
for the concerns about prices and the concerns about indecency.
And so I think that goes to some of the second question you
have, as well, of some of the ways that we could try to address
the increasing prices that we've seen on cable, as well.
The Chairman. Thank you.
Mr. Adelstein? Thank you.
Mr. Adelstein. Mr. Chairman, the courts have distinguished
between cable and broadcast. Whether we like it or not, that's
the environment that we operate in. One of the reasons they
made that distinction was because, in their view, in the case
that Commissioner Copps cited, the person who purchases cable
has the option under the law to block a cable channel. Now,
most consumers don't know that. I imagine most people that may
be watching this hearing are surprised to learn that they could
block any channel that they find inappropriate, be it MTV or
anything else. I think the cable industry has to do more to
ensure that every consumer has that right now.
The Chairman. How do you do that?
Mr. Adelstein. Well, you do that through either--the
digital box can do it, or through analog. They have technology
available for both to block it. If a consumer asks for that,
the cable company is obligated, under the law and under our
rules, to meet that request. And it can be done----
The Chairman. How do you physically do it?
Mr. Adelstein. Well, it's different for analog than it is
for digital. Under----
The Chairman. Well, that's helpful.
[Laughter.]
Mr. Adelstein. Well, under digital, it's much simpler to
do. They can program into the box. Under analog, I believe they
actually have to purchase some equipment, and it's very, sort
of, burdensome. So----
The Chairman. So you----
Mr. Adelstein.--people don't tend to do it.
The Chairman.--can block it, but you have to purchase
equipment to do it. That's good.
Mr. Adelstein. Or pay a small fee, I believe. It's
unfortunate that that's the way it works. I mean, it's really
not something that is being adequately implemented right now. I
think the cable industry needs to step up to the plate, if
that's the reason that there's a distinction between the two,
and ensure that consumers actually have this right in practice
and not just in theory.
The Chairman. Thank you very much.
Senator Hollings?
Senator Hollings. Thank you, Mr. Chairman.
Let me make just a couple of comments from my experience of
now 38 years on the Communications Subcommittee, and I'll
comment, most respectfully, to the distinguished Chairman. I
know he's a dedicated public servant, absolutely honest, but,
in my opinion, dedicated not to regulate as the Chairman of a
regulatory commission.
That's our problem. Here's a Chairman, who says that the
public interest is an empty vessel, who redefines
communications as information in order to avoid that
responsibility. Slaps on the wrist, in the Detroit case--that's
the filthiest thing, everybody agrees--on the different ways to
perform sex in a filthy, filthy fashion, and leads the way for
a little $27,000 fine and not to revocation of the license. Oh,
one of the Commissioners say, ``Let's start a proceeding.'' Oh,
they wouldn't think of that, of revoking the license. You've
got the authority. But no revocation of license and a $27,000
fine, when they paid, for 30 seconds--on that halftime show, 30
seconds is $225,000. What the heck is a $27,000 fine? If there
ever was going to be a revocation, that would have been the
case, in the Detroit case.
Last night, the President of CBS Television said: ``To that
end, I challenge the broadcast community to reinstate a
voluntary code of conduct.'' Like somehow we're going to start
getting with this problem.
Let me just say what the Commission--Chairman Powell said.
This is why--I'm not trying to be unfair, I'm trying to be
factual. This is our problem. And I quote Chairman Powell
before April's talk before the National Association of
Broadcasters, ``Every time something sort of salacious or edgy
comes on television, we hear very strongly from very different
viewpoints about it. But the same community taught me that
we're supposed to be a place of a marketplace of ideas--
antagonistic voices, unpopular viewpoints, and unpopular
images--and that our society is strong enough and robust enough
to sustain that, and that rather than stamping it out under the
boot of a government authority, we can adapt, and we can
tolerate it.''
Now, that's our problem. Calling the responsibility ``the
boot of the government authority,'' and saying you can tolerate
it, and then start this hearing off with toleration, namely
calling for a voluntary code, we're in real trouble. Do you
think you'll ever revoke a license? Why didn't you start a
proceeding revoking the license in the Detroit case, Mr.
Chairman?
Chairman Powell. Senator, I'm happy to answer all the
things that you threw out.
First of all, I'm very proud to be associated with those
comments, because those are being associated with the First
Amendment, and I don't mind being associated with Thomas
Jefferson or Justice Marshall or any of those who recognize the
importance of content on our society.
Senator Hollings. Do you think you're on the Supreme Court,
or----
Chairman Powell. If you're----
Senator Hollings.--are you on the----
Chairman Powell.--going to allow me to finish, I'd be happy
to----
Senator Hollings.--Federal Communications Commission?
Chairman Powell. No, but I took the same oath that my
colleagues did to uphold the Constitution of the United States,
and that's one of my responsibilities. And I'm perfectly proud
of that. I do think we are urged to be cautious and careful
when we regulate content. That's all that statement says.
But if we're going to trade quotes, I don't see why it's
just as fair for me to enter into the record quotes that I've
said, for example, at the National Press Club just a few weeks
ago, ``I personally believe that this growing coarseness and
the use of such profanity at a time where we are very likely to
know that children are watching is abhorrent and irresponsible,
and it's irresponsible of our programmers to continue to try to
push the envelope of a reasonable set of policies that tries to
legitimately balance the interests of the First Amendment with
the need to protect our kids.'' I said, further, ``You can take
the view that we have no standard, we have no moral limitation,
we have no fear whatsoever of protecting our children from any
range of communications that we know they can hear somewhere
else, but sometimes what defines a culture or civilization is
where we say no.'' Second, I think it's----
Senator Hollings. My question was about revoking the
license.
Chairman Powell. I'm happy to talk about that, too.
Senator Hollings. Yes, I mean, the media has reported that
you're beginning to see the light. There's no question about
that. But when are we going to ever revoke a license if we're
not going to do it in the Detroit case?
Chairman Powell. I think when the facts are egregious
enough and serious enough to justify it. But we still are an
agency of the law.
In April 2003, the Commission announced clearly to notice
the broadcasters that it would consider revocation of licenses
if there was serious and persistent conduct. The Commission's
judgment has been that when it sees a case that meets those
standards--and that's been less than a year ago--it would act.
I also believe, however--and the Supreme Court has made clear--
that the Commission, when it announces a new policy, or its
intent to pursue more aggressively a policy, that it cannot
retroactively apply that to conduct that preceded the notice.
So my view is--and you're free to disagree with it--once
the Commission made a clear notice that it would pursue
revocation on a prospective basis, it will. But for conduct as
in the Detroit case that preceded that announcement, I think
not only would that be unconstitutional, but fundamentally
unfair.
Senator Hollings. You made the finding subsequent to that
announcement, and that was on November 24, when you had to
forfeit your order or the slap in the wrist of a $27,000 fine
to that CBS entity, Viacom, and no wonder CBS and Viacom goes
along with just baring the breast. I mean, come on. That's
nothing compared to the people just seeing something they may
consider indecent.
I'll ask Chairman Brownback to include in the record the
list of TV and copycat behavior on violence, over a dozen
cases. Nobody's killing themselves when they see a bosom, but
they're constantly killing themselves over the years here when
they see violence on TV. So I'll ask that that be included in
the record.
Senator Brownback [presiding]. That will be included in the
record.
[The information previously referred to follows:]
TV and Copycat Behavior
January 2004: A sixteen year old California girl was killed when
she was thrown from a merry go-round propelled by a rope tied to a
truck trying to imitate a stunt from the MTV program ``Jackass.''
April 2001: Two Kentucky teenagers were injured trying to recreate
a scene from MTV's ``Jackass.'' One teenage, a 17-year-old, drove a car
towards his 16-year-old friend, who stood in the middle of the road.
The boy in the road was supposed to jump out of the way at the last
second, but didn't make it in time.
January 2001: A 13-year-old boy suffered second-and third-degree
burns after two friends poured gasoline on his legs and feet and set
him on fire. They were intimating a stunt from the MTV show ``Jackass''
in which Johnny Knoxville donned a fire-resistant suit covered with
steaks and stretched over a giant grill to become a human BBQ.
May 1999: A 7-year-old boy in North Dallas, Texas accidentally
killed his 3-year-old brother after imitating a pro wrestling move he
saw on television. When interviewed by authorities, the boy
demonstrated what had happened by running toward a doll about the same
size as his brother and suddenly striking its neck, knocking it
backwards. He also talked about his favorite wrestling stars, Stone
Cold Steve Austin and The Undertaker.
January 1999: Two Florida teenagers repeatedly raped their 8-year-
old half-sister after allegedly watching an episode about incest on The
Jerry Springer Show. A detective asked the boys where they learned to
abuse their sister and the older boy responded, ``I learned it on The
Jerry Springer Show.'' The show's publicist issued a statement saying,
``We've never had a show that is remotely close to this situation and,
unfortunately, there are situations in this world for which we are
blamed.''
May 1998: In Ocean City, Maryland, 12-year-old Darron Lawrence
Green committed suicide and left a note citing South Park as a reason
why he killed himself. He mentioned a character named Kenny, a small
boy who dies violently in every South Park episode. The boy did not
show any signs of depression before the act.
In the same year, 11-year-old Bryce Kilduff hung himself. Police
suspected that it was an accident and that he was trying to imitate the
character Kenny on South Park. His mother reported that the day before
his death, her son was imitating the character and his friends said,
``Well, if you're Kenny, then you have to die.'' He responded by
saying, ``That's OK, I'll be back next week.'' Bryce also drew pictures
of the characters and based their portrayal on his classmates' stories,
since his mother forbade him to watch the show. After his death, police
found a picture drawn by Bryce depicting a character hanging himself.
January 1998: 14-year-old Michael Swailes committed suicide by
lying down in front of a speeding train. The boy was carrying a
notebook with suicide instructions he downloaded from a Duke University
student's Website. Chris Economakis defended his Website, which
outlines forty suicide methods, by claiming it was put up ``for
entertainment purposes only.'' After briefly removing the website, he
put it back online 24 hours later with no changes.
December 1997: Michael Carneal, a Kentucky high school student,
entered his school lobby and fired seven shots from a semiautomatic
weapon into a group of students, killing three and wounding five. He
told investigators that he had seen it done in a scene from the movie
Basketball Diaries, in which a character, played by Leonardo DiCaprio,
walks into a classroom and kills several students with a shotgun.
June 1997: Jeremy Strohmeyer, a California teen accused of sexually
assaulting and murdering a 7-year-old girl in a Nevada casino, told Las
Vegas detectives that he killed her by ``putt[ing] one hand behind her
head and one hand under her chin, and snapp[ing] her head like he [saw]
on TV.''
February 1997: A Bridgeport, Connecticut, 8-year-old was killed by
a gunshot to the forehead by another child. Police said the children
imitated a scene from the movie Set it Off after watching it on
videotape.
May 1994: A California teen and four other middle-class boys
trapped and beat to death a sixth boy with whom the ringleader had
engaged in intense competition over everything from grades to crime.
The trial revealed that the teens' plot was based on tactics seen in TV
police dramas.
October 1993: A 5-year-old ignited a 2-year-old sibling, who died
from her injuries. The children's mother blamed MTV's Beavis and
Butthead for inspiring the child: the cartoon's two main characters
like to light fires and often chant, ``fire is good.'' After this
incident MTV moved Beavis and Butthead to a later hour and removed all
references to fire.
May 1993: An abduction and multiple slaying in Flin Flon, Manitoba,
Canada, was attributed to a broadcast of the made-for-TV movie Murder
in the Heartland, because it resembled the crimes in the movie and
occurred several days after the airing. The movie is based on the true
story of Charles Starkweather, a 19-year-old who abducted his 14-year-
old girlfriend and murdered her family.
Senator Hollings. Thank you, Mr. Chairman.
Senator Brownback. Senator Boxer?
Senator Boxer. Thank you so much.
First, I want to thank all of you for your eloquent
statements today. I mean, I really do think that we're all
speaking from the heart and we're all in agreement. The
question is, where do we go from here? How do we take this
outrage that we feel and do the right thing, consistent with
balancing, you know, freedoms and good taste and morality and
all the rest? This is not easy stuff. But I do think you could
do more, and I think you think you could do more. And if you
need the tools from us, we'll give you the tools.
A couple of things I want to pick up on, and I'll just ask
my questions, and then I'll let you respond. I guess I would
address these to the Chairman, because I think he has got the
most, shall we say, influence over what happens.
To pick up on Senator Lautenberg's point, CBS, who brought
us this offensive show--and I think we've all agreed it was
offensive, the whole halftime show--turned down what I consider
to be, and I think most people would say, was a very tasteful
30-second spot produced by a political organization called
MoveOn.org. They said people would be offended. Now, it's true,
the deficit is offensive. That's the message of this, that
there's this huge deficit, and our children have to pay it off.
CBS said people would be offended.
In terms of your, Chairman Powell's, total defense of the
First Amendment, how can CBS turn that down while they allow
all this other offensive material on ads and this whole show?
Can you take action against them for saying they won't allow
free speech on a political message?
Chairman Powell. Well, first, let me be clear that--and I
expressed this to them in fairly firm terms--I think it was a
gross mistake. I don't see any reason--and, by the way, I've
had my differences with MoveOn.org, but I agree completely with
its rights to speak and to attempt to buy advertising.
I don't defend the conduct whatsoever. And by----
Senator Boxer. Are they allowed to do that?
Chairman Powell. Yes, they're allowed----
Senator Boxer. They are. So----
Chairman Powell.--I mean, they are----
Senator Boxer.--in other words----
Chairman Powell.--allowed to make editorial decisions----
Senator Boxer. Fine.
Chairman Powell.--about what advertising they take. Whether
it's illegal or not, I'm not certain under what theory we would
pursue it for that purpose, but it's worth considering. I don't
think it was an appropriate choice, but it was the choice of
the owner.
Senator Boxer. Right.
Chairman Powell. They don't take a lot of advertising.
Senator Boxer. Well, let me make the point of--on this.
When we allow more and more and more and more and more and more
consolidation, we're going to have fewer and fewer people
involved in saying what can be on and what can off. This is
frightening to me. So all of these things are connected to the
consolidation issue, and that's why so many of us are
determined to overturn what happened in that omnibus bill where
that slipped in and we're allowing more and more media
consolidation.
Senator Brownback. If we could have conversation concluded
or taken out of the room, if that would be possible, for----
Senator Boxer. Thank you.
I do want to pursue that further with you, but let me go
on.
Have you seen, Chairman Powell, this report of the GAO,
February 2003--it's a very new report--``File-sharing Programs,
Peer-to-Peer Networks Provide Ready Access to Child
Pornography''?
Chairman Powell. Senator, I haven't read it, but your
office has made us aware of it, yes.
Senator Boxer. Good. I'm going to make sure that--if you
don't mind, that we can meet about this.
Chairman Powell. Sure.
Senator Boxer. And I'm going just put in the record, if I
might, Mr. Chairman, just two pages of this, what the GAO
found.
[The information referred to follows:]
Child Pornography Is Readily Accessible over Peer-to-Peer Networks
[Excerpt for the record]
Highlights
File-Sharing Programs
Child Pornography Is Readily Accessible over Peer-to-Peer Networks
Why GAO Did This Study
The availability of child pornography has dramatically increased in
recent years as it has migrated from printed material to the World Wide
Web, becoming accessible through websites, chat rooms, newsgroups, and
now the increasingly popular peer-to-peer file-sharing programs. These
programs enable direct communication between users, allowing users to
access each other's files and share digital music, images, and video.
GAO was requested to determine the ease of access to child
pornography on peer-to-peer networks; the risk of inadvertent exposure
of juvenile users of peer-to-peer networks to pornography, including
child pornography; and the extent of Federal law enforcement resources
available for combating child pornography on peer-to-peer networks.
GAO's report on the results of this work (GAO-03-351) is being released
today along with this testimony.
Because child pornography cannot be accessed legally other than by
law enforcement agencies, GAO worked with the Customs Cyber-Smuggling
Center in performing searches: Customs downloaded and analyzed image
files, and GAO performed analyses based on keywords and file names
only.
What GAO Found
Child pornography is easily found and downloaded from peer-to-peer
networks. In one search, using 12 keywords known to be associated with
child pornography on the Internet, GAO identified 1,286 titles and file
names, determining that 543 (about 42 percent) were associated with
child pornography images. Of the remaining, 34 percent were classified
as adult pornography and 24 percent as nonpornographic. In another
search using three keywords, a Customs analyst downloaded 341 images,
of which 149 (about 44 percent) contained child pornography (see the
figure below). These results are consistent with increased reports of
child pornography on peer-to-peer networks; since it began tracking
these in 2001, the National Center for Missing and Exploited Children
has seen a fourfold increase--from 156 reports in 2001 to 757 in 2002.
Although the numbers are as yet small by comparison to those for other
sources (26,759 reports of child pornography on websites in 2002), the
increase is significant.
Juvenile users of peer-to-peer networks are at significant risk of
inadvertent exposure to pornography, including child pornography.
Searches on innocuous keywords likely to be used by juveniles (such as
names of cartoon characters or celebrities) produced a high proportion
of pornographic images: in our searches, the retrieved images included
adult pornography (34 percent), cartoon pornography (14 percent), child
erotica (7 percent), and child pornography (1 percent).
While Federal law enforcement agencies--including the FBI,
Justice's Child Exploitation and Obscenity Section, and Customs--are
devoting resources to combating child exploitation and child
pornography in general, these agencies do not track the resources
dedicated to specific technologies used to access and download child
pornography on the Internet. Therefore, GAO was unable to quantify the
resources devoted to investigating cases on peer-to-peer networks.
According to law enforcement officials, however, as tips concerning
child pornography on peer-to-peer networks escalate, law enforcement
resources are increasingly being focused on this area.
______
Prepared Statement of Linda D. Koontz, Director, Information Management
Issues, United States General Accounting Office
Mr. Chairman and Members of the Committee:
Thank you for inviting us to discuss the results of our work on the
availability of child pornography on peer-to-peer networks, which we
provided to you in a report being released today.\1\
---------------------------------------------------------------------------
\1\ U.S. General Accounting Office, File-Sharing Programs: Peer-to-
Peer Networks Provide Ready Access to Child Pornography, GAO-03-351
(Washington, D.C.: Feb. 20, 2003).
---------------------------------------------------------------------------
In recent years, child pornography has become increasingly
available as it has migrated from magazines, photographs, and videos to
the World Wide Web. As you know, a great strength of the Internet is
that it includes a wide range of search and retrieval technologies that
make finding information fast and easy. However, this capability also
makes it easy to access, disseminate, and trade pornographic images and
videos, including child pornography. As a result, child pornography has
become accessible through websites, chat rooms, newsgroups, and the
increasingly popular peer-to-peer technology, a form of networking that
allows direct communication between computer users so that they can
access and share each other's files (including images, video, and
software).
As requested, in my remarks today, I summarize the results of our
review, whose objectives were to determine
the ease of access to child pornography on peer-to-peer
networks;
the risk of inadvertent exposure of juvenile users of peer-
to-peer networks to pornography, including child pornography;
and
the extent of Federal law enforcement resources available
for combating child pornography on peer-to-peer networks.
We also include an attachment that briefly discusses how peer-to-
peer file sharing works.
Results in Brief
It is easy to access and download child pornography over peer-to-
peer networks. We used KaZaA, a popular peer-to-peer file-sharing
program,\2\ to search for image files, using 12 keywords known to be
associated with child pornography on the Internet.\3\ Of 1,286 items
identified in our search, about 42 percent were associated with child
pornography images. The remaining items included 34 percent classified
as adult pornography and 24 percent as nonpornographic. In another
KaZaA search, the Customs CyberSmuggling Center used three keywords to
search for and download child pornography image files. This search
identified 341 image files, of which about 44 percent were classified
as child pornography and 29 percent as adult pornography. The remaining
images were classified as child erotica\4\ (13 percent) or other
(nonpornographic) images (14 percent). These results are consistent
with observations of the National Center for Missing and Exploited
Children, which has stated that peer-to-peer technology is increasingly
popular for disseminating child pornography. Since 2001, when the
center began to track reports of child pornography on peer-to-peer
networks, such reports have increased more than fourfold--from 156 in
2001 to 757 in 2002.
---------------------------------------------------------------------------
\2\ Other popular peer-to-peer applications include Gnutella,
BearShare, LimeWire, and Morpheus.
\3\ The U.S. Customs CyberSmuggling Center assisted us in this
work. Because child pornography cannot be accessed legally other than
by law enforcement agencies, we relied on Customs to download and
analyze image files. We performed analyses based on titles and file
names only.
\4\ Erotic images of children that do not depict sexually explicit
conduct.
---------------------------------------------------------------------------
When searching and downloading images on peer-to-peer networks,
juvenile users can be inadvertently exposed to pornography, including
child pornography. In searches on innocuous keywords likely to be used
by juveniles, we obtained images that included a high proportion of
pornography: in our searches, the retrieved images included adult
pornography (34 percent), cartoon pornography \5\ (14 percent), and
child pornography (1 percent); another 7 percent of the images were
classified as child erotica.
---------------------------------------------------------------------------
\5\ Images of cartoon characters depicting sexually explicit
conduct.
---------------------------------------------------------------------------
We could not quantify the extent of Federal law enforcement
resources available for combating child pornography on peer-to-peer
networks. Law enforcement agencies that work to combat child
exploitation and child pornography do not track their resource use
according to specific Internet technologies. However, law enforcement
officials told us that as they receive more tips concerning child
pornography on peer-to-peer networks, they are focusing more resources
in this area.
Background
Child pornography is prohibited by Federal statutes, which provide
for civil and criminal penalties for its production, advertising,
possession, receipt, distribution, and sale.\6\ Defined by statute as
the visual depiction of a minor--a person under 18 years of age--
engaged in sexually explicit conduct,\7\ child pornography is
unprotected by the First Amendment,\8\ as it is intrinsically related
to the sexual abuse of children.
---------------------------------------------------------------------------
\6\ See chapter 110 of Title 18, United States Code.
\7\ See 18 U.S.C. Sec. 2256(8).
\8\ See New York v. Ferber, 458 U.S. 747 (1982).
---------------------------------------------------------------------------
In the Child Pornography Prevention Act of 1996,\9\ Congress sought
to prohibit images that are or appear to be ``of a minor engaging in
sexually explicit conduct'' or are ``advertised, promoted, presented,
described, or distributed in such a manner that conveys the impression
that the material is or contains a visual depiction of a minor engaging
in sexually explicit conduct.'' In 2002, the Supreme Court struck down
this legislative attempt to ban ``virtual'' child pornography \10\ in
Ashcroft v. The Free Speech Coalition, ruling that the expansion of the
act to material that did not involve and thus harm actual children in
its creation is an unconstitutional violation of free speech rights.
According to government officials, this ruling may increase the
difficulty of prosecuting those who produce and possess child
pornography. Defendants may claim that pornographic images are of
``virtual'' children, thus requiring the government to establish that
the children shown in these digital images are real.
---------------------------------------------------------------------------
\9\ Section 121, P.L. 104-208, 110 Stat. 3009-26.
\10\ According to the Justice Department, rapidly advancing
technology has raised the possibility of creating images of child
pornography without the use of a real child (``virtual'' child
pornography). Totally virtual creations would be both time-intensive
and, for now, prohibitively costly to produce. However, the technology
has led to a ready defense (the ``virtual'' porn defense) against
prosecution under laws that are limited to sexually explicit depictions
of actual minors. Because the technology exists today to alter images
to disguise the identity of the real child or make the image seem
computer-generated, producers and distributors of child pornography may
try to alter depictions of actual children in slight ways to make them
appear to be ``virtual'' (as well as unidentifiable), thereby
attempting to defeat prosecution. Making such alterations is much
easier and cheaper than building an entirely computer-generated image.
Senator Boxer. It found the following, that, ``The
proliferation of child pornography on the Net is prompting wide
concern. According to a recent survey, over 90 percent of
Americans say they're concerned about child pornography on the
Internet, and 50 percent of Americans cite child pornography as
the ``single most heinous crime that takes place online.''
Now, I just want to tell you how upset I think everyone in
this room would be--not to say ``upset''--if you would see some
of these images--Senator Lott, I know you, particularly, would
be, as well, although I know you haven't been able to hear me--
the bottom line is, you would turn away. You would walk out of
the room. You would be sick to your stomach at what is going on
today. We get upset about a halftime show. This is illegal,
peer-to-peer downloading that is going on today. Is this on
your plate of issues to deal with in a prompt manner, Mr.
Chairman?
Chairman Powell. It hasn't been, but I would be happy to
explore it with you. It's not entirely clear in what way it
falls in our jurisdiction. But I will tell you, I have two
sons, and they each have laptops, and I know exactly what
you're talking about----
Senator Boxer. Right.
Chairman Powell.--and it's a source of an enormous amount
of frustration. Your computer gets hijacked by these sites. And
once you're hijacked, every time you boot up, it repeatedly is
displayed, stuff is sent over the open connection, and I think
there needs to be some solution to that, and I'm more than
happy to be a partner in looking for ways to deal with that
problem. It is a serious one.
Senator Boxer. OK, let me repeat. This is illegal activity.
Child pornography is illegal. And it is going on as we speak,
thousands of times a day. And while we work on these other
issues, which we must do, we must get a handle on this, because
this thing is expanding exponentially. And so I would love to
meet with you in the very near future, as in next week, if
you're available. We will work with your scheduler on that.
Chairman Powell. I would just add--and I think that conduct
is illegal and criminal.
Senator Boxer. Yes.
Chairman Powell. And I think it's important to really work
also with the criminal prosecution authorities----
Senator Boxer. We will.
Chairman Powell.--about that, as well.
Senator Boxer. We will discuss that.
The last thing, and I will absolutely stop. Commissioner
Abernathy, thank you, you met with some of the content people.
Could you just give us a sense of how they responded to your
upset on this?
Commissioner Abernathy. Yes. It was very interesting,
Senator. The senior management put together the program--Rupert
Murdoch on down, all attended--as well as all the folks who
were involved in the creation of the content, and there were a
number of panels. The response to what I had to tell them was
skepticism, because I started out the day. As the day went
further and they heard from parents and children, and they
heard from their senior leadership, the younger folks who were
producing the content--their initial reaction was, ``You think
there's a problem. There is really not''--by the end of the
day, based on what they had heard from their senior management
and from parents and from children and from advocates, was an
appreciation that they were wrong about what they were doing.
Now, whether this will result in change, I don't know, but at
least it's a new dialogue. It's getting a lot of these young
kids in a room, who grew up on MTV, who don't have a clue what
I need to watch with my 8-year-old. And that's what they just
didn't get.
So I do applaud FOX for taking this first step. I am
hopeful it will go further. I don't think that's enough, but at
least it's something.
Senator Boxer. Thank you.
Senator Brownback. Senator Breaux?
Senator Breaux. Thank you, Mr. Chairman. And thank all the
Commissioners.
Mr. Chairman, Chairman Powell, it's really interesting that
the FCC launched an investigation after the Super Bowl halftime
show was presented. Had that halftime show been on ESPN--if
they had carried the Super Bowl, as opposed to the network--you
wouldn't have done that. Because, as I take it, it--the law
says--I think that's what I was hearing--that you have the
obligation to enforce decency standards on broadcast networks,
but that that does not cover cable, direct television, and
television that some 80 to 85 percent of the people in America
watch.
Is that because of a statute, or is that because of
regulations, or why?
Chairman Powell. Let me explain that. Congress passed
statutes many decades ago on indecency, the famous Section
1464, and it specifically talks about utterance using radio, or
over radio.
Senator Breaux. What year was that? I mean, that was a long
time ago.
Chairman Powell. 1927.
Senator Breaux. Yes. I mean, they didn't have cable.
Chairman Powell. There was nothing else, probably.
Senator Breaux. Right.
Chairman Powell. And so for decades, essentially--and then
there are other statutes, which--Congress empowers the
Commission to enforce that statute. By the way, that statute's
a criminal statute. While we can't enforce it criminally--we're
not a criminal authority--Congress empowered the Commission to
enforce civil forfeiture for violations of the criminal
provision.
Senator Breaux. If that's the statute under which you look
at the broadcast networks for content under a decency standard,
if Congress decided to broaden that ability to cover the rest
of the programming that people watch--and they don't know
whether it's cable or direct television or broadcast--would
that be something that Congress, in your opinion, could give
you that jurisdiction to do?
Chairman Powell. I think that Congress certainly could give
us that jurisdiction, subject to whatever Constitutional limits
the court would impose. And I think the only caution I was
introducing earlier was not an apology to not do it, only that
the court has set much higher standards for the cable medium
than the broadcast medium. We regularly hear people talk about,
``These are the public airwaves and the public trust.'' That's
unique to broadcasting. That is not an accurate
characterization for cable.
Senator Breaux. It seems to me that we have reached the
distinction without a real difference, in the sense that the
people who are flipping the channels--I mean, you can go up and
down the whole spectrum of the channels, and I don't know why
one has to have one standard and the other has the other
standard. I mean, it doesn't make any sense.
So you're saying that Congress could expand that authority
to give you the authority to treat non-broadcast stations the
same as you treat broadcast stations.
Chairman Powell. Most certainly. Again, only subject to
whatever limits there are.
Senator Breaux. It seems to me that--I mean, would you--we
spent some time up here--we had televisions in here, we had
demonstrations on the so-called V-chip, because I really
thought the primary responsibility of making sure your children
read what they should read and don't read what they should not
read, and watch what they should, and vice versa, is the
parent's responsibility. We created this V-chip mechanism. And
yet it seems to me that that has been a pretty dismal failure,
either because parents do not want to take advantage of it,
they don't understand it, they're not comfortable it, or for
whatever purpose.
I mean, if only 7 percent are using it, 93 percent of
families who have small children who could be utilizing it
don't take advantage of it.
Chairman Powell. Yes.
Senator Breaux. What's the--I mean, it's a failure, isn't
it?
Chairman Powell. It's not an overwhelming success, you
know.
[Laughter.]
Chairman Powell. That's for sure.
Several years ago, when I was a minority Commissioner, I
remember we made an enormous public affairs effort to try to
educate the public, to really bring them in. Kermit the Frog
was the spokesperson for the V-chip.
Senator Breaux. He did a commercial----
Chairman Powell. These things were up all over television.
And they haven't worked. And it's--I don't know, it's difficult
to say why. I don't like to believe somehow parents don't care.
But I do think there's something kind of mysterious about
technology to the adult generation that's very knowable to the
younger generation. Kids have a better hold on how to use the
V-chip and how to defeat it than probably parents do. And, you
know, certainly my kids seem to be able to run circles around
us on the boxes that sit over the television.
Senator Breaux. I would hope that every time we--you get a
letter complaining about something that's on a broadcast
channel right now, that you also, in responding to the people,
let them know that the V-chip is available. And that's a way of
them taking control of their children's lives, instead of
Congress being the only arbitrator of what is permissible for
their children to see--that they have a responsibility to
police their own family, as well.
Chairman Powell. Well, that's one thing that we can do
fairly well. Commissioner Abernathy mentioned we have an entire
section of FCC Web pages dedicated to parents, and advice like
this, and we can always do more with this. It is a difficult
issue.
The other thing you could look at, if you're looking for
ideas, is that programs are rated so that they can be used by
the V-chip system. Now, a lot of programming still isn't
appropriately rated, and some--on cable channels that may be
rated at the outset, but you walk in and Comedy Central is on
at 12 in the afternoon. You won't have any knowledge at that
moment, whether what you're about to see is violent or
indecent.
Senator Breaux. One final question, and that is on the
broadcast networks now--I mean, Janet Jackson's breast on TV
for 2 seconds is an issue, but I think that also--and even a
much greater issue, as far as I'm concerned, is all the
violence on prime time television, particularly some of the
reality shows that we see. Like I said, with people eating
cockroaches, sitting in a bathtub of worms, and also doing
horribly dangerous stunts that children copy and try to do
themselves--is just as harmful, if not more so, to society, and
particularly to young children. Why are they on? Because people
like to watch it. They're not on there to shove it down
anybody's throat. They have those programs on there because
they sell advertisement, and people watch those programs. I
mean--so what's your responsibility in that area? I mean, that
type of violence is worse than a halftime show, as far as I'm
concerned.
Chairman Powell. I will take my cue from my children. And,
by the way, I want to commend Senator Brownback, who's sent me
many of these studies, and I'm fairly convinced about the
connection between the violent images people see and effects on
the children. I see it in my own.
Back to your question--but I'm almost more offended by the
video-gaming access of children, which, interestingly enough,
for example, little boys almost don't watch television anymore.
You've almost lost the little boy generation to the video
gaming world, and it's already been reflected in the Nielsen
ratings. Where are they? They're not there. They're on their
Xbox and the PlayStation, playing anything from Grand Theft
Auto to some pretty extraordinary stuff that will pale anything
you've ever seen in prime time television. So I think that's an
important thing to think about----
Senator Breaux. But you have no jurisdiction over that?
Chairman Powell. No, not really. There are arguments being
made about whether somehow we could redefine the indecency
statute to include violence. And I would only suggest, while
that might be possible at the very margins, I think the most
proper way to do this, if we were going to do this, there
really should be a statutory basis for doing it, because I
think that we would likely not get very far trying to be cute
with that interpretation.
Senator Breaux. Thank you.
Senator Brownback. Thank you, Senator Breaux. And I thought
those were very thoughtful comments.
Thank you for being here. And I've met with most of you on
this topic at some point in time. And I know your hearts, and
they're in the right place. And I think you share our
frustration of, ``OK, now the rubber's met the road here, let's
get something done with this.''
I want to go through a couple of items here. And I think
there's interesting question to ask that we--it would be great
if the Commission would do this. Yesterday's USA Today asked
the question, ``How did we get from `I Love Lucy' to `I See
Janet'?'' And it's a great line. And most of us have been alive
long enough and consumers of television long enough, we've
actually seen this take place.
Can we go back, in a case study, and ask ourselves, How did
we fall down this far? How did we get to this point, where you
have this on prime time television--Janet Jackson--and then all
of us commenting up here. But that's no big deal. If you just
flip the dial over to MTV, this is regular MTV. But can we go
back and do a case study of--how did we get from point A to B
on this chain? Maybe we can, from that, start to dig ourselves
a set of answers.
And I've liked several that I've heard some of you come up
with here today that I think we can work on. And I'm
cognizant--very cognizant of the limitations. First Amendment--
I am not a censor. It would not stand up in court. I don't
stand for it myself. There are greater limitations on cable
than what we can do on over-the-air broadcast, by the way the
courts ruled. So you've got some additional parameters that you
have to work it.
But, as well, guys, you know, I'm--how can the ``F'' word
not be vulgar? And maybe you're teaching people a little bit
about English, of whether it's a noun or an adverb. I don't
know that many people using it question that. But adjective,
adverb, noun, however you want to use it--I've heard it used a
lot of ways, but this is vulgar. You know, and I really hope
you can turn that one on around.
I want to ask you, as well, if you can consider doing the
type of study--or maybe we'll just request the FTC to do it--of
target marketing of sexual material to under age audiences.
Because when we did that--when the FTC did that on violent
material, they found that these companies were readily target-
marketing violent material. They would say it's violent
material, which, normally you're supposed to be 18 years of age
to watch it, and then they were target-marketing it to under
age 18 audience.
I am virtually certain that what we will find on MTV is
that, here is sexual material target-marketed to an under age
audience--under age 18 audience. I am certain of that. I don't
think that study has been done at all. This is material that's
rated as adult material. Yet it is just, pure and simple,
target-marketed. And yet we're all offended and amazed when
it's on the halftime of the Super Bowl. Actually, that's
reaching an older aged audience that it was target-marketed
toward.
And this has a pernicious effect on the society. I want to
show you a chart here of sexually transmitted diseases. Now,
you can say, OK, these are not direct causal impact, but I
would suggest to you it's pretty close. And I think as we get
into these studies on it, you're going to see the impacts of
these areas, of sexually transmitted diseases and violent
activity. We are seeing it in the violence behavioral studies.
I think you're going to see it in the sexually transmitted
diseases fields, as well.
Yesterday, I was on the phone to University of Indiana
researchers, University of Indiana Medical School. They're the
ones that are leading the country--and I would urge you to
contact them and bring them in to testify--leading the country
on brain-mapping studies, watching a--doing an MRI of a child
while they're watching violent entertainment. Got some great
early materials out on this. Because we've got all these
behavioral studies that show that it's connected, but it
doesn't seem to cause anybody to react.
But, in these, their studies are showing exposure to
excessive violence in the media shows similar brain functions
in children as those who suffer from attention deficit
hyperactivity disorder and attention deficit disorder. And what
they were basically saying to me on the phone yesterday is what
happens when a child readily consumes this video game
material--Chairman Powell, it's what you're saying, and it's
what I'm seeing in my children--you are losing this younger
generation to the Xbox and the interactive nature of it. What
you're seeing is, while the reactive part of the brain is
really fired up, the one that's just stimulated and just
reacts, the cognitive--the thinking part of the brain that
slows you from just reacting to a reflex reaction--the part
that says, ``Now, wait a minute. Let's think about this a
second''--is depressed. Its activity is actually going down.
That cognitive part, the front of the brain, the activity is
actually going down, while this reactive part is going up.
So what we're seeing in the behavioral studies, now we're
getting the hard sciences. Here's what's taking place. You're
actually slowing that cognitive part of the brain down,
depressing it, while this reactive, stimulated part of the
brain, the reflex part of the brain, is actually being
stimulated up.
And what we've created now is a toxic culture. We used to
have toxic waste in the environment. We have created a toxic
culture--sexual material, vulgar material, violent material.
And we see the reaction to it, we see impacts. We now are
getting the brain studies. And I think we're going to need to
fund more of the brain-mapping studies so we have the hard
science to go to the entertainment industry and say, ``Here's
the hard science. It's no longer behavioral studies, it's no
longer is there causation correlation. Are we going to argue
these points? Here's the hard science on it.'' And the early
studies are showing that the connectivity between watching--
consuming a lot of violent material and being violent, the
linkage to that is higher than that between smoking and getting
lung cancer, so that you're showing a clear impact on this
culture. And we may have to, in the future, just require more
of these studies--behavioral studies, brain-mapping studies--to
know exactly what are we feeding that child's mind? Because
that's the bottom line what I'm trying to get at, What am I
feeding that child's mind?
I watch what my children eat. Not as well as I should, but
I try to watch what fat, what sort of diet they're ingesting in
their body. What's more important is, What am I feeding their
brain? And what are they getting in their brain? And we,
unfortunately, are seeing now what they're getting in their
brain and their reaction that it's then causing as they go
ahead and develop through this society. And it is past time to
get on top of it.
I'm going to push the leader to bring up the bill on
tenfold increasing of the fines. I think that's a first step to
at least give you folks the better authority that you need. I
think we ought to look at how we go at cable industry within
the First Amendment. I'm not a censor. I think we have to look
at an FTC study on target marketing of sexual material to under
age 18 children. And maybe you folks--I think it probably fits
more at the FTC. They've done this before.
And then I hope we can look backward, How did we get to
this point, to the point of where we are today, that we're all
just--almost throw our hands up? But it's not time to throw our
hands up. Now's the time to dig in, do the hard work of
legislating and enforcing in a sensible, constitutional
fashion, and start to dig out of this hole. And we can do it.
Long comments. I know you're up to the task of doing it.
Senator Lautenberg?
Senator Lautenberg. Thanks, Mr. Chairman. And my
compliments go to you for your interest in this subject for
such a long period of time.
We are witnessing a poisoning of our society, and it's a
dreadful thing to stand by and see it happen. And one of the
things that concerns me--I respect greatly Chairman Powell's
protection of the constitutional rights that we have, but I
don't know whether that turns us into more spectators bemoaning
our fate than taking some kind of action to deal with it.
The public appetite for sex and violence certainly isn't
diminishing, because these shows, these commercials, are
getting big responses. So how do you say, ``OK, you shouldn't
like it this much,'' without really introducing censorship of
some serious nature?
So that's a concern. And we were able to find a CNN Website
that said there are 260 million pornographic Websites, that
it's an 1800 percent increase in 5 years of these. The average
age of viewing is 11, and 90 percent of the kids from 8 to 15
are seeing pornography while they're doing their homework. This
is so pervasive and so destructive, in my view. I played
football, and I did all the things, and I served in the
military, but I'm revolted by the violence that we see
constantly. As a matter of fact, I try not to go into the movie
theater before the--or until the previews are done, because
each one of those portrays violence in a way that attracts
people.
So I don't know what we do about that appetite, but--Mr.
Chairman and your colleagues, and I think you did a very good
job this morning. I don't agree with the outcome of some of
your decisions, for instance the Bono statement at the Golden
Globe Awards show. Did you review the decision of the
enforcement bureau before it was issued?
Chairman Powell. No.
Senator Lautenberg. No?
Chairman Powell. No.
Senator Lautenberg. Because the decision that's made seems
more on grammatical structure and not the public sensibility
about whether it's used as a part of speech; one is OK, on one
hand, and, on the other, it's considered unacceptable.
That coincides with something else that I've noted, that
your critics have noted that the FCC last year received about
240,000 complaints about some 375 radio and television
programs, but issued only three fines. And we all kind of agree
that the fines are piddling compared to the lesson that we're
trying to put out there. But--the inadequacy of fines is one
problem, but what about the lack of effort or attention, when,
out of 240,000 complaints, there have been three fines that
were issued? Doesn't that seem fairly inadequate to respond to
the number of complaints that you got?
Chairman Powell. Yes, I would accept that criticism, but
make a couple of points, if I could, just to put it in
perspective.
Senator Lautenberg. Sure.
Chairman Powell. 240,000 complaints over 375 programs, so
the number of potential programs to fine is not the 240,000,
it's the 375 programs. Last year, there were 13,000 complaints,
but a similar number of programs. Actually, more programs were
complained about the year before, with fewer complaints. And,
you know, this is out of how many television programs a year?
Conservatively, I would estimate television programs alone are
probably in the 1.4 to 2 million programs-a-year range. That's
not even adding radio. And since we don't enforce against
cable, some amount of that 375 are cable complaints that we
wouldn't act on. The penalties of this Commission compared
historically to other Commissions are absolutely consistent
and, frankly, more than the history of the Commission, and I
can't defend all the years previously.
That said, is the ratio itself a sign of poor enforcement?
I suppose one could argue that, but not without looking
specifically at what each of those cases were and whether our
decisions not to take actions were defensible ones. We're a
robust society. People complain about content all the time.
It's our difficult judgment to sort through what's actionable
under the law and what's not. We bring the fines that we think
are warranted. But I just think----
Senator Lautenberg. Yes, I would urge a more energetic
response to this thing, if I can use the term.
Since we know that the appetite is almost insatiable out
there among a large part of our society, you say, well, how do
you get the message across that says, ``Hey, you've got to stop
this?'' And I wonder what would happen if there were consumer
organizations that started to form and said, ``Look, you
advertise that trash, that filth, that vulgarity to sell your
product, we're just not going to buy it,'' and to see whether
something could be done on the commercial side, because--
Senator Graham talked about the family involvement, and that's
true, but somehow or other that message doesn't get through as
we'd like to see. It's too convenient. It's a babysitter in the
home. So throw on the TV, ``Go watch TV and let me get done
with the wash.''
So I think there are things that we can do, Mr. Chairman,
not the least of which is to stay on top of this and urge
energetic--and to take the enforcement side to the limits
possible without invading the constitutional rights of our
citizens.
I thank you very much.
Senator Brownback. Thank you, Senator Lautenberg.
Senator Lott?
STATEMENT OF HON. TRENT LOTT,
U.S. SENATOR FROM MISSISSIPPI
Senator Lott. Thank you, Mr. Chairman.
I believe we have a vote on now, so--and I did come in
late, and I apologize to the Commission for not being here to
hear your statements. Thank you for being here and for the work
you do. You do take a little criticism along the way, both from
us and others, and you, I hope, understand that that's the way
the job works. And I've been a----
Chairman Powell. Better than anyone.
Senator Lott.--among those that have been critical. But
when you do the right thing or say the right things, I think we
ought to also acknowledge that. I think, Chairman Powell, what
you've had to say, since this recent incident, has been
positive. I hope you will follow it up with action. I heard one
radio announcer this morning talking about, ``Well, you know,
yes, they might change their conduct a little bit here in the
next few days, wait for the storm to die down, then they'll go
right on back to what they've been doing.''
Same thing with FCC. You all will do as you've done in your
statement, call on, you know, some voluntary action, work with,
you know, the networks to do more to curb indecent,
inappropriate, violent programming, and volunteer code of
conduct. I don't think it's enough. I think you need to be very
aggressive on this.
And I think we've got to be more aggressive. I don't think
we've given you enough tools. I support increasing the fines by
ten times. I checked to see if we could move the FCC
reauthorization we passed last year that's pending in the
Senate for action. The answer is, no, it has all kinds of
problems, and we're not going to be able to move it in its
present form. Lots of people have holds on it. So I think we
should try to move the tenfold fine increase separately and
freestanding to show that we're doing something, but in line
with making sure we don't just make this a hot reaction to one
event. It is much broader than that.
Shouldn't we put this enforcement also against the
everybody--cable companies? I mean, it should be across the
board, shouldn't it?
Chairman Powell. Well, yes, in short. I think that----
Senator Lott. We need to do that----
Chairman Powell.--if you're going----
Senator Lott.--legislatively, right?
Chairman Powell.--honestly want to talk about this stuff on
television, you're missing 85 percent of the story----
Senator Lott. Yes.
Chairman Powell.--if they're completely out of the
discussion.
Senator Lott. Yes. I believe it's being proposed by some
people in the House. Maybe you already have this authority, but
sort of a three strikes and you're out/lose your license sort
of thing. Do you have that authority? Is there legislation
pending in that regard? Is that something we'd want to
consider?
Chairman Powell. I don't know if there's legislation
pending in that regard. I'll defer to others on that. It's----
Senator Lott. You don't have that authority?
Chairman Powell. It's not clear. I've actually thought
about it. It's possible. I think it's something we should study
or consider, whether there's an axiomatic number, and over what
period of years would you do that.
Senator Lott. I can tell you, and you know it, the American
people are about--are getting fed up. Are they doing enough to
control their own children and what they watch? No. Is the
anxiety rising? Is the respect for, you know, big television,
network television, falling? Absolutely. And I hope maybe this
has been the match that lit the fuse where we'll finally get
some action.
I think we need to do a lot more, a lot more aggressively.
And that's one reason why, by the way, I opposed y'all's
decision last year, and continue to oppose it. I think further
concentration and consolidation is bad, because these people
are already insensitive to what the American people are saying.
And it's not just about children. It's just--what we're seeing,
what's being shoved on us in large doses is totally out of
control. And, frankly, when you get big enough, you don't care,
and you don't pay much attention to your local affiliates; you
do what you want to, and then hide behind the First Amendment.
And I don't think that's a good idea.
Now, Dr. Copps, I sense that you've been anxious to say
several things.
[Laughter.]
Dr. Copps. Thank you.
Senator Lott. Let me just give you a blanket opportunity to
comment on anything you've heard in the last few minutes, and
I'll stop with that.
Dr. Copps. That's the nicest thing anybody's said to me in
a long time, Senator.
[Laughter.]
Dr. Copps. I appreciate that very much.
First of all, I think we do have that power to revoke
licenses. I don't think we need to be giving notice for it. It
has been in the statute, it has been in the rules, and we ought
to be exercising it.
But I want to return to the question, because so many have
alluded to it, you in your comments, Senator Brownback's
question, How do we get from I Love Lucy to I See Janet? And
certainly time's change, and nobody's talking about going back
to the mores of the 1950s. But I think we've got to look
within, and look at ourselves, and look at the culture that we
have created for this--not broad culture, but just the legal
and the regulatory culture for this kind of thing to occur. And
we, at the Commission, have been guilty of this, too.
I think, you know, we don't come with serious fines. And we
can sit here and debate whose Commission had the biggest fines,
but nobody's Commission has had credible fines, Republican or
Democrat, this or any previous one. So we need to be fixing
that.
But I think that all this talk, which we're finally
beginning to disabuse ourselves of, ``we don't need a national
nanny,'' ``our people are getting what they want,'' or ``they
can turn off the set,'' or ``the V-chip can handle it,'' all of
that is contributory, because it just tells big media that they
can just go right ahead without fear of punishment and without
fear of retribution. And as you so eloquently said, media
consolidation is certainly flashing a green light, and we see
it flashed again this morning with the latest takeover attempt
with Comcast and Disney.
So I think there may be many reasons for how we got from I
Love Lucy, but I think we should probably look within, and,
like Pogo, maybe the enemy is us.
Senator Lott. Thank you, Mr. Chairman.
Thank you, Commissioners.
Senator Brownback. Thank you, Senator Lott.
I've got a few questions to ask. We have a vote on, and
several Members are coming back, and they all asked me to hold
you here. So I hope you can stay in, in patience, because
obviously this is a very hot topic for people.
Dr. Copps, what you said, I think, is accurate on this, in
that we have given the media companies a pass on this and said
this is the parent's responsibility. And I agree; as a parent
of children, I am responsible. But I liken it to saying that
when, in the 1960s, the Potomac was getting polluted from
point-source pollution, that we should tell people, then,
``Well, don't swim in it. Don't eat the fish. And if you want
to swim in it, put a wet suit on.'' You know, instead of
saying, ``Well, let's clean it up.'' And we didn't take that
route at that point. We didn't tell the big companies, ``Well,
you're not really at fault, you know, it's not your
responsibility.'' We said, ``No, you're responsible. You did
this. You clean it up.'' And we really started going at it. And
this is a cultural environment now we're dealing with, and it's
pervasive, and it has toxic impact.
So now how do we back up and unwind that ball? I think you
can start off with issuing some fines and looking at what you
can do on removal of license. And then I do think we're going
to have to take a hard look at cable, of what we can do in that
area.
Chairman Powell, I'd ask you, do you have--what are the
next steps you're going to be taking on this issue? It's
obvious that the Commission has agreement that something needs
to be done. What would you articulate as the next several steps
you would anticipate you'd be taking?
Chairman Powell. Let me just say generally and then with
some of the specifics that you're aware of. By the way, it
hasn't just been in response to the Super Bowl. I think anybody
who wants to honestly and fairly look at this very Commission's
track record over the last 3 years will see a steadily
intensifying effort on indecency enforcement. And I credit
every single member of this Commission for having a role in
that. Each has something that they can take credit for for
helping bring to our attention. But the thing that's admirable
about the Commission is it has accepted and endorsed most of
those things and moved forward. Some of them include
dramatically--being as creative as we possibly can to raise the
level of fines that we can raise by counting as creatively as
we can. That means we're not using routine base amounts--at
$7,000, for example, which used to be the practice--and we
almost routinely now come in at the high levels of 27,500.
We've started fining multiple affiliates for the same offense.
We've put people on notice that we will fine per utterance
instead of per program. That's a dramatic increase. No
Commission ever has done that before. That's something the
Commission deserves credit for.
I think that we have talked about revocation. But we're not
a star chamber. Just because we believe it's a tool doesn't
mean we're going to go out and get somebody and put them in
there just to make a point. If the Commission, in its judgment,
believes that somebody has either repeatedly or seriously
offended the indecency laws, I have no trouble whatsoever
revoking a license. I think you'll see more stringent threat
and potentially use going forward on that issue.
The other thing is, we want to work with Congress. We call
for the fines, not to disabuse our own responsibilities. As I
said in my testimony, the first place we look is ourselves. But
even if we maximize fines every conceivable way under the
statute, fines that are 15 and a half years old and are not
even calibrated for cost-of-living adjustments, simply are
inadequate. And I think it's responsible for us to work in
partnership with the Congress to do that.
Finally, I would say, with respect to--we've also worked
very, very aggressively to pull backlogs down. When this
Commission took office, there was a significant amount of
backlog in the enforcement agenda altogether. We've made
enormous strides in that, and we need to do a lot better so
that we can be swifter on complaints, act on them faster, and
dispose of them quicker. That's a challenge for the agency,
always dealing with its resources and appropriations, but we're
committed to making that a priority.
And then, finally, with respect to these high-profile
cases--and I would submit to you, the Super Bowl is only one of
many that are heading to the Commission's desk--that we have
out there that are probably very significant and will involve
very significant penalties, and I think you'll see a steady
stream of those over the next several weeks and months.
Senator Brownback. I hope you can hold some Commission
hearings across the country on this topic. You know, I think,
Commissioner Abernathy, you mentioned about one of having the
people from the industry. And I feel like sometimes the
entertainment industry has put itself in a cocoon. Washington
gets accused of that; sometimes rightfully so, but we really
try to fight against that. I do think that industry has. And as
long as the money is flowing, everything's fine. But to bring
them out of that cocoon and hold the hearings--in Kansas City,
I would welcome you----
Chairman Powell. Next week?
Senator Brownback.--Atlanta, places around the country, so
that they can hear what people are really saying. Because I get
this raised to me just all the time, is, people are fed up with
fighting a culture to raise their kids. They feel like they're
just being attacked all the time from it.
Commissioner Powell, let me ask you, on the cable issue--
because several of you--I'm hearing a little dissidence here
about, ``We need to address it. We've got tougher standards to
address it.'' Can you, will you, be willing to work with the
Congress on how we can statutorily give you the authority to
address the cable industry? And what kind of strictures would
you see there?
Chairman Powell. Most certainly, we're always ready to work
with Congress on this agenda and our enforcement generally. So
we would really be happy to do that, and we'd welcome the
opportunity.
And, by the way, you know, my obligation, as advising the
Committee about its restraints, are not an attempt to be
dismissive about----
Senator Brownback. No, I understand.
Chairman Powell.--the importance of it, but for us to be
honest, to be intellectually honest and sober about what our
challenges will be.
I do think the Constitution and the First Amendment are a
significant challenge. You cannot just easily take the
broadcast model and roll it over to cable. The case that has
been cited of Playboy, it's important to mention, yes, they
said the Commission has the authority, and struck it down; and
struck it down because they said the Constitution requires you
to use the least-restrictive means. There are least-restrictive
means in cable than there are in broadcasting. For example,
Commission Adelstein rightfully talking about the ability to
block programming. That's not something you can do in
broadcasting--when a show is coming over at 8 o'clock, it's
coming over at 8 o'clock. It's a one-medium medium. Cable has
all kinds of technical capability that can be employed to help
empower parents and families that broadcasting doesn't. And I
certainly would be interested in looking there first, at
whether cable can have a behavioral responsibility, but the
tools--and not expensive ones that consumers have to pay for--
but the tools are there for people to really make informed
choices about what they don't want on their system. That's the
second thing that I would look at very carefully.
And then you kind of figure out who you're talking about
with respect to cable. It's a different model, in the sense
that, you know, what's on the Discovery Channel is the
responsibility of the Discovery Channel. It may be on Cox
Cable, but who are we going to focus our attention on, the
programmers or the cable asset owner? And I think--I don't know
the answer to that, but these are some of the additional things
to focus on.
And I think the fact that those programs run all day, full
day, so you have genre channels--you know, the History Channel
runs nonstop--so ideas that we've become we've become
accustomed to in broadcasting, like a family hour or a block of
time or something, is restricted or just a little tricker in
the cable context, where you basically are buying separate
spaces, and they run all day; so, you know, sometimes Comedy
Channel is clean, and sometimes it's horribly dirty, but it can
be on all day long. I haven't completely thought through the
best way to focus on that if I were asked, but I just help you
point out some of the issues that you'll have to focus on.
Senator Brownback. Let me point out something to you that
you know is coming. Yesterday's USA Today, again, says that
NYPD Blue is considering broadcasting a different episode in
Central and Mountain time zones than elsewhere because of the
Janet Jackson incident. Two points off of this. Number one, is
that acceptable way to go--you just don't offend us out in the
middle of the country, and you can go at everybody else, that's
OK--is one.
And, second, are we going to need to--are we going to have
to require that these programs go through--that they have a
review before it comes out? I'm seeing people now putting time
delays on broadcasting, for them to make the call. Is that
going to have to be something that we're going to have to
require of over-the-air broadcasting companies, that there's
some sort of at least private review by them of a delay so that
it gets caught?
Chairman Powell. I personally support time delay as a sort
of reasonable tool to deal with the problem of live broadcasts.
I think there is a challenge, when you're covering a live
event, that one of your talent--or one of the people that are
being covered in the live event were to suddenly do something
indecent or profane, what are the effective ways that you could
prevent that from getting out over the airwaves. Once it's out,
the damage is done. But we have this in our society all the
time. I mean, in the Super Bowl, you will watch players jog off
the field all the time, and you have no doubt--no trouble
understanding what they're saying if they're cursing. If CNN is
interviewing a soldier in Iraq, and he suddenly blurts out the
``F'' word, you're going to have those kinds of challenges in
live television all the time. And so time delay seems to me to
be a noncontent-based/respective of the First Amendment
approach to trying to grasp that so that they get 7 seconds of
notice, and they have a fair opportunity to prevent that from
going out over the air.
That's why I think this week you've seen a whole string of
announcements from what seems to be every single network about
deploying time delays in their upcoming live programs.
Senator Brownback. I want to get to the second part later.
I need to go vote. Senator Wyden's here, and I'll give the
running of the Committee to him until I get back from that
vote.
Senator Wyden?
Senator Wyden [presiding]. Thank you, Mr. Chairman.
Mr. Powell, I have been looking at the nature of the
enforcement actions you all have brought, and fines and all of
the data that essentially relates to how the Commission has
proceeded in this area. And it looks to me that there is a
clear bottom line here, and that is that the locally owned
station is rarely the culprit here. If you look at all of the
evidence, that's the conclusion you come to.
The question I wanted to ask you, and I wanted to get it on
the record because it relates to the consolidation debate, ``Do
you think it's just a coincidence that, when you review the
data, these locally owned stations are rarely the culprit?''
Chairman Powell. I don't know for sure that I agree with
that, that the local stations are never the culprit or rarely
the culprit.
Senator Wyden. Read this morning's Washington Post, Mr.
Chairman. This morning's Washington Post says----
Chairman Powell. Well, that's fine, but the----
Senator Wyden. No, but that's a matter of----
Chairman Powell. All right.
Senator Wyden.--public record. I mean, we're talking about
70 percent, or something like that, essentially against the
large, you know, conglomerates. And so what I want to do is, I
want to take facts that are on the record--I mean, we all know
you can have a debate about the politics forever, but it is
clear, when you review the record, that the disproportionate
number of actions are brought against the large people, which
has led me to conclude that these local stations are rarely the
culprit. And I would just like you to tell me, for the record,
whether you think that's a coincidence or there are factors
that I'd very much like to have your opinion on.
Chairman Powell. Well, out of respect for the Washington
Post, I will assume the data to be true.
Senator Wyden. But it's in other sources, too.
Chairman Powell. OK. We keep that data, and I will
certainly look into it to see about it. But the other thing I
think it's important to note, that a lot of local broadcasters
might not be the culprit because 70 to 80 percent of the
programming they clear and they run, they purchase from
networks and other sources of programming. So your local
television station, no matter who owns it, by the way--and this
is not much different for stations in large ownership groups or
stations that are not--purchase the vast--you know, carry the
vast majority of their programming from network sources. So
it's just a dramatically higher probability that an offending
programming--an offending program comes from a network.
Networks basically are programming a substantial part of
what our citizens see every day. So with the exception of the
local news or perhaps the Washington Redskin report in the
Washington D.C. market, the vast majority of what you're
watching on that local product during the day is being produced
by a network, no matter what size the network.
Senator Wyden. Well, I think that's fair to point out. At
the same time, I come to the conclusion that if you have to
shop next to somebody, and you have to see them at the little
league team, you're going to be a little bit more careful about
offending, and certainly as it relates to shows that aren't one
of the 9 or 10 o'clock-at-night network shows. I'm prepared to
make an allocation for that, but I still keep coming back to
figures that it seems to me are irrefutable. Did you want to
comment on this, Mr. Copps?
Dr. Copps. Yes. Almost everywhere we have been--in our
media-ownership hearings that Commissioner Adelstein and I went
to last year and to our localism hearings that all of us are
going to this year--I ask the owned and operated station owner,
who is always there testifying, if he has ever, ever, ever
preempted a show for indecency reasons. I have yet to find one
network owned and operated show who has done that. I also ask
the independent and the affiliated station owner have they done
it, and time and time again they answer, ``Yes, we've preempted
Married by America--it didn't conform to our community
standards''--or Temptation Island, all these things. So I think
the premise of your question is right on.
And as to the question of the veracity of those findings, I
think it's actually 80 percent of those fines, and 80 percent
have gone to just the two big consolidated companies.
Senator Wyden. All right.
Let me ask, while I have all of you here, about an issue
I'm looking at, and it stems from the fact that once in awhile
you write a law that exceeds your expectations. Last year--I
think you know this, Mr. Chairman, because I discussed it with
you--I wrote, along with Senator Collins, the Stand By Your Ad
requirement in McCain-Feingold. It wasn't last year; it was
part of the McCain-Feingold legislation. We thought it was
going to make a difference. We thought it was going to be
useful. And it essentially grew out of the campaign that
neither I nor Senate Smith were particularly proud of back in
1995 and 1996. And so I wanted to do something about the
negativity of political advertising. We thought that the
legislation I wrote with Senator Collins would make a
difference, but it has far exceeded our expectations when you
had every candidate concerned about the lowest unit rate, and
they're all stepping right up and saying, ``I authorized the
ad.''
My question to you is--and I would be interested in the
views of any of your colleagues, as well--is, do you think that
there is any way we might build on that model to enforce some
broadcaster accountability? In other words, it clearly is not
the same thing, and I understand that. And one of the things
that's attractive about doing it with respect to political
advertisements is that, because the ads are so short, when the
candidate says it right at the end, there is a kind of
ownership there that's constructive. But I am--I'm interested
in whether or not it might be possible to put some additional
heat on a broadcaster through an approach that would build on
Stand By Your Ad, which, for once, exceeded the expectations of
what the authors thought it might accomplish.
Chairman Powell. I mean, could I ask--so the suggestion
would be, somehow a commercial advertisement, whoever
profligated that advertisement would somehow have to be
identified?
Senator Wyden. Well, I'd like to hold the broadcaster
responsible, just as we have done with political candidates in
Stand By Your Ad. As I say, now the American people, when they
turn on this upcoming fall election, they're going to see
candidate after candidate basically have to stick to the
record, where in the past they essentially ran all those
commercials where their opponent looked like they hadn't shaved
for weeks and was essentially on a weekend break from some
prison, and there's a new accountability. And what I'd like to
know is whether you think we might be able to build on that
model to get a broadcaster to take full responsibility for the
kind of violent and overly coarse content that we're
discussing.
Chairman Powell. In the advertising? I'd have to give it
more thought, but I think one part of your question that I
think is correct, in terms of the premise, is that, you know,
the broadcaster, either local or national advertising, is--
there is an editorial responsibility there. They choose which
ads to take and whether or not and when to put them on. So
certainly there's a level of responsibility as to the choices
being made about what runs. I'd like to work with you and think
a little more about exactly how this Stand By legislation would
work.
Senator Wyden. Why don't we do this, because I am springing
this on you cold, and I understand that. I would very much like
to have the Commission take a look at this. We have a statute
that is working now in the political area. It holds politicians
accountable. I would like all of you to look at whether you
could take that model and use that model in some fashion to
hold the broadcaster responsible for the kind of material that
is over the line and we're concerned about. And since I am
offering it to you for the first time, if all of you would be
willing to take a look at it and put the staff on it, I'd
appreciate it.
Chairman Powell. Yes, sir.
Senator Wyden. Thank you all, and--appreciate all your
patience this morning.
Senator Dorgan [presiding]. Members of the Commission,
thank you for being with us. I guess I am probably the last to
ask questions, and I will limit my time to 30 minutes.
[Laughter.]
Senator Dorgan. I'm just, of course, joking. I'll be brief.
But you've been here a long, long while. We appreciate very
much the entire Commission being willing to share your thoughts
with us.
Let me ask a few questions about the will to regulate. This
is a regulatory body. You all were confirmed to your posts by
the U.S. Senate. You all appeared here before this Committee.
And I think, with respect to most of you, I always said, you
know, I hope that you're a tiger on these issues, that you have
a will to really be a regulator, in the best sense of the word.
And there does require, in my judgment, to be some regulation
with respect to use of the airwaves, because the airwaves don't
belong to those who are using them; they belong to the American
people, and we license them for use, and we require certain
things attendant to that licensing.
Let me ask, have there been any revocations of licenses of
either television or broadcast--or radio broadcast stations in
recent years? Not just with your tenure, but in recent years.
And if so, how many?
Chairman Powell. Never, to our knowledge, in the whole
history of the Commission.
Senator Dorgan. Does that seem implausible to you, that we
have these thousands and thousands and thousands of
broadcasters with licenses to use something that belongs to the
American people, that there has not been one revocation? And
the reason I ask the question is, you know and we know now that
there is a changing standard of behavior and what is happening
in some areas on some programming is pretty disgusting. Should
there have been, do you think, or should there be, aggressive
approaches to say, you know, ``Look, you have responsibilities.
If you don't meet them, you have at least the prospect of
losing this license''?
Chairman Powell. To be clear, just on the--we have revoked
licenses over the years. Something like, almost three, on
average. Some people are saying per year. I'd have to check on
that. But none for indecency. Do I think, over the entire
history of television, could there have been a case in that
time period in which that was warranted? Certainly--most
certainly possible.
One of the things that we did is, when this issue was
really emphasized by both this Committee and my colleagues, we
moved toward a much more aggressive stance in this Commission
to make clear that we intend to pursue that. And I don't have
any problem whatsoever pursuing that on a going-forward basis
with respect to our regulatory responsibilities.
Senator Dorgan. Do you think, based on your stance at the
moment, that the prospect there are broadcasters who think if--
``Look, if we move well beyond where we ought to be here, we
might lose our license''--do you think that's a practical
thought for some of these folks?
Chairman Powell. If they have any wisdom whatsoever, it
should be. We announced it formally in the context of our
opinion. The fines and enforcement of this Commission is strict
and stringent compared to any Commission previously. We have
made public statements in response to outrage on television. I
think we've telegraphed, with some aggressiveness, that that
is--to ignore that is at your peril.
Senator Dorgan. Yes, but taking effective action and
saying, ``You just better watch it,'' are two different
approaches to enforcement, and I think--I'm not suggesting this
Commission is different than other Commissions; I'm saying I
think there needs to be a will. And my hope is that perhaps
this is a tipping point. Maybe we've come to a tipping point on
this issue. After so many decades of discussing it in Congress,
we've finally gotten to the point where we have a tipping
point, and we'll have the FCC and Congress decide something
really is going to happen here significant to change what's
going on.
Let me ask about the issue of concentration. You all know I
feel very strongly about that. I think with fewer and fewer
people determining what people in this country see, hear, and
read, it is very troublesome. And I happen to think--and I'd
like your analysis of it--I happen to think much of what's
happening with respect to coarseness and indecency and
obscenity in broadcasting has to do with a concentration of
ownership, because the more aggressive concentration of
ownership you have, the less localism, and the less localism--
as my colleague, Senator Wyden suggested, you know, you don't
have to care much about what they think in the grocery store
because you're not going to meet them.
Dr. Copps, you touched on that briefly. I'd like anybody
that would like to--do you think there's a connection here
between concentration and the diminution of standards?
Dr. Copps. I think there's a definite connection. We should
have debated this before we relaxed the media-ownership rules
last year, and I requested that we do so; because everywhere I
went around this country, I heard people saying, ``We think
there's a connection between the rising tide of indecency and
the rising tide of media consolidation.'' I don't know if
that's a causal effect or a correlative effect or what it is,
but I think we owed it to our kids to tee that up and at least
amass a halfway credible record before we voted.
But I think--and I don't think I'm going too far on this--
that when you flash the green light for consolidation, you're
just inviting more indecency. I notice one of the big mergers
that recently was approved at the Commission, and the next day
we read that that particular outfit was teaming up with
somebody else to offer a porn channel. I mean, that's the kind
of thing, I think, that we're going to see more of as
consolidation increases. So I think the problems are
intricately related.
Senator Dorgan. Anybody else on that?
I should just parenthetically say, it's my hope that
perhaps the Super Bowl halftime program might persuade ten
House members to sign a letter in the House, which will then
give us a vote in the House, and perhaps they will pass the
disapproval resolution that's already passed the Senate by a
fairly wide margin with respect to ownership limits. But we'll
wait and see whether that Super Bowl halftime performance has
that salutary effect.
Let me ask about the ``F-word'' issue. And I know--let me
say, Chairman Powell, I know that you have announced an
effort--or I don't know, you might want to explain what you've
announced--but you've announced the fact that you don't feel
comfortable at all with where this issue is at the moment. The
enforcement bureau in the FCC, as you indicated, issued a
ruling on the use of the so-called ``F'' word, saying that--
they didn't say it quite this way, but effectively they said,
if it's used as an adjective, a descriptive term that stops
short of other terms they described, that it would be all
right, it does not violate the decency standards and is not
considered, quote, ``obscene,'' unquote.
I read that, and I was--I thought to myself, you know, I
understand we have these issues with respect to cable,
especially the basic tier of cable, which--you know, I mean,
the basic tier is what you have to get when you buy cable, and
there are--I think all of you have also raised this issue, that
you have these differences between broadcast and cable, but
they kind of fuse together when over 80 percent of the
households have cable now. But when I read of the ruling, I
thought, I don't understand how they can reach that ruling.
Isn't there just some basic understanding that the use of that
word on broadcast television is just ``wrong,'' quote/unquote,
just--you know, no way to describe it, just flat wrong?
Chairman Powell. We are going to rule on this, but I'm not
afraid to say that--and I said publicly that I think the
decision is wrong. But I do feel some obligation to explain
what I think happened. The word is protected speech. It's not
an acceptable word, but it is one that the Commission looks to
the context. I think a part of the decision in the bureau's
judgment was not so much--I think--the garbage about adverbs
and adjectives is unfortunate, but I think the other aspect of
their opinion was that it's a fleeting exclamation, and
Commission precedent was that when somebody blurts out that on
TV, there has been a long record of not finding that to be
indecent. But I think many Commissioners here have noted that
there are other aspects of this statute. For example, profanity
is also forbidden under the statutory provision, and I don't
think anybody would argue the word is not profane.
I think this Commission, who sets the law ultimately for
the institution, will look at this and rule quite imminently. I
don't even want to begin to say that the adjective/adverbs
thing, which just smacks in the face, to some people, of common
sense, is really the basis for a regulatory authority to reach
its final decision. And I want to assure people, as I've said
when I've been asked in public, there is no way whatsoever that
that's a statement, or intends to be a statement that the
Commission thinks it's OK to use that kind of language during
those hours in television.
Senator Dorgan. Well, Mr. Chairman and Members of the
Commission, let me just say that I think there is a role for
regulation in government. And in regulatory agencies, where
regulation is the function, I would hope very much that this
Commission and others would regulate on behalf of what they
perceive to be the public interest, and the public interest in
this circumstance, if you were to hold, let's say, a dozen
hearings across the country, would be a public interest shouted
by parents all across the country saying there is a coarseness,
a diminution of standards and language and so on, on broadcast
properties, that they're very concerned about. And they are not
saying that they want censorship, they're not saying that we
want the ``Thought Police'' running all over America. They are
saying there needs to be some common sense approaches. We used
to have a family time on television, for example. Senator
Hollings and I and many others think it ought to be brought
back.
But I think we--at least speaking for myself, I hope the
FCC is aggressive on these issues. You know, use the authority
you have. If you need more, ask us for more and let us debate
that. But I appreciate the work Senator Brownback has done.
We've been having hearings--I've been on this committee now 12
years and--this is my 12th year, and we've been having hearings
on these issues for a long, long time. We started, of course,
with violence, which is also a significant issue, but--I don't
think any of us suggests this is easy, but it is easy for me to
read the paper and say--a ruling saying the ``F'' word is all
right on broadcast television--it's easy for me to say that's
just--that just defies common sense. So I appreciate your
beginning to work to correct that.
But there's much more to do, and I hope that, with the
leadership of Senator Brownback, Senator McCain, Senator
Hollings, myself, and many others, that we can work with you to
begin to address these problems in a significant way.
Thank you, Mr. Chairman.
Senator Brownback [presiding]. Thank you, Senator Dorgan.
And I'll look forward to working with you and some others as I
think we've finally got a head of steam up now--not by our
doing, but by others and what they have caused--that we're
going to be able to move some of these on through the process.
I want to thank the Commission for being here today.
Godspeed to you as we really try to move through this process
and be cognizant of the Constitution and its requirement.
The record here will stay open for 15 days, as is required
by this Committee. Thank you for joining us.
The hearing's adjourned.
[Whereupon, as 12:10 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Daniel K. Inouye, U.S. Senator from Hawaii
Let me first thank the Chairman for holding this hearing and my
colleague Senator Hollings who has championed the issue of protecting
children from violent programming on television for many years, a
legislative effort I am proud to support. In my view, serious action to
stem the tide of indecency and violence is long over due. The
coarsening of the material we see and hear across media outlets has
raised the Nation's consciousness and the recent stunt at the Super
Bowl halftime show was merely the final straw. Many among us have been
sounding the warning bell for some time. Now the citizenry has also
taken up the call. In just five short days after the Super Bowl, the
FCC reported receiving over 200,000 complaints.
Unfortunately, we are not here to address a one-time event. The
trend across radio, television, cable and satellite has been to
increase indecent and violent programming in search of higher ratings
and more advertising dollars. Commissioner Copps has called this trend
a ``race to the bottom.'' This race has resulted in increasingly
debased material finding its way into our homes and reaching our
children as companies compete with each other for new ways to push the
legal and social limits with no end in sight. It is time for all media
companies to respond to the local communities that they serve and not
just to the almighty dollar.
While this race to the bottom has heated up, the FCC has been
inundated with indecency complaints. According to the New York Times,
last year the FCC received approximately 240,000 complaints concerning
375 radio and television programs. Meanwhile, the FCC's enforcement of
its indecency rules has been woefully inadequate. In 2003, the FCC
issued a total of three fines against radio stations and in the last
three decades has issued only one sanction against any television
station in the fifty states. The media companies have sought to test
the FCC's resolve and found it missing in action. By failing to use all
of the enforcement muscle at its disposal, even against egregious
violations and repeat offenders, the FCC has given broadcasters license
to serve the 18 to 34 demographic rather than the public interest.
Television can be a powerful influence in developing value systems
and shaping behavior--for good or for ill. On average, American
children spend more time watching television than they do in school. By
the time a child reaches 18, he will have seen 16,000 simulated murders
and 200,000 acts of violence. Despite the findings of study after study
that viewing violence poses harmful risks to children, we have done
nothing to limit the amount of violent programming on television.
Looking around the world, Canada, the United Kingdom, France, Germany,
Australia and many other countries comprehensively address both
indecency and violence in their laws and through industry commitments
to codes of conduct and rating systems. Meanwhile in the U.S., some
media companies refuse even to use effective ratings systems denying
parents the necessary tools to protect their children from harmful
programming.
Last year, this Committee favorably reported legislation to
increase the FCC's enforcement of its indecency laws (The FCC
Reauthorization Act of 2003, S. 1264). We also have before us the
``Children's Protection from Violent Programming Act,'' which I hope we
will take up in the near future. With the proper tools and vigorous
enforcement, we can greatly diminish the harmful effects of television
on our children.
I look forward to the testimony from the distinguished panel. Thank
you, Mr. Chairman.
[all]