[Congressional Record Volume 140, Number 29 (Wednesday, March 16, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: March 16, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                OUTRAGEOUS EXAMPLE OF BUREAUCRATIC ABUSE

  Mr. D'AMATO. Mr. President, I rise to call attention to one of the 
most outrageous examples of bureaucratic abuse I have seen during my 
time in the Senate.
  The big brother in this instance is the Federal Communications 
Commission. The manner in which this agency has dealt with one of my 
constituents, Infinity Broadcasting Corporation, is simply 
unacceptable. It is a situation that everyone who respects our first 
amendment freedoms and due process in administrative proceedings must 
be concerned about.
  Infinity Broadcasting Corp. is a publicly traded New York company, 
and is the country's largest company whose business is owning and 
operating radio stations. They have been in the business for 20 years. 
Upon completion of pending acquisitions, they will own 25 radio 
stations in 13 major markets, including stations in every one of the 
top 10 markets. There are many diverse formats on these stations, 
including rock, country, oldies, all talk, and all sports.
  This sorry situation that I bring to the Senate's attention involves 
a recent attempt by Infinity to purchase a Los Angeles radio station.
  According to news reports, the Commission held up that sale because 
it did not like the content--the content--of one of Infinity's 
programs. It apparently did not matter to the FCC that the program in 
question would not even air on the station Infinity wanted to purchase.
  The FCC clearly does not like this program. It is the ``Howard Stern 
Show.'' The program is not everyone's cup of tea. I have been on it. I 
like Howard. He is a friend. But I know some people get offended by 
some of the things he says on it. That is OK. That is their right. This 
is the United States of America, and if they do not like it, they can 
turn it off or turn the dial. They can even boycott it. They can 
boycott the sponsors who put it on. That is their right.
  I am not here to debate the merits of Howard Stern. If you like him, 
you like him; if you do not, you do not.
  But what I do know is if the Federal Communications Commission or any 
citizen in America thinks that what Howard Stern or anyone else says on 
the air is indecent, they can file a complaint. There are procedures 
for adjudicating these complaints. And that is the way it should be. If 
Howard Stern or Infinity or anyone else breaks the law, they should be 
punished.
  That is not what has happened here, though. And that is what bothers 
me greatly.
  What happened here was, because the Federal Communications Commission 
did not like this particular show, the Commission took revenge on 
Infinity, the entire corporation--a publicly traded company with 
thousands of shareholders--by holding up the sale of the Los Angeles 
station to Infinity.
  A sale like this usually requires a 60-day turnaround at the 
Commission. This one has taken 271 days so far, and still has not been 
resolved.
  In fact, one Commissioner this past New Year's Eve, Commissioner 
James Quello, told the New York Times that the Infinity KRTH 
acquisition would be delayed indefinitely because he claimed the 
Commission disapproved of Mr. Stern. As it turned out, the New York 
Times never checked with the other two Commissioners who, the following 
week, repudiated the story and said that Commissioner Quello did not 
speak for them.
  But the harm had already been done. As this one Commissioner must 
have known, the Infinity stock price had dropped $200 million, about 1 
percent of its value, over 3 trading days, and Infinity was forced to 
pay millions more in penalties for the delay in completing the purchase 
of the Los Angeles radio station.
  If a member of the Federal Communications Commission feels the 
content of a show is indecent, there are steps, there are procedures 
that can and should be taken. That is OK. Those ways protect the basic 
first amendment principles and the due process rights contained in the 
Communications Act and the FCC's own internal proceedings.
  Maybe this case got a lot of publicity because it involved a 
controversial entertainer. But precisely because it did involve 
controversy, the constitutional concerns become even more real. After 
all, often the law is not made in cases involving the most perfect of 
parties. The Constitution was written to protect all the different 
voices in the marketplace of ideas.
  The way I read the first amendment, a dislike or disagreement with 
content is clearly not sufficient to punish Infinity in its other 
unrelated business dealings. But here the Commission did just that.
  The Infinity case highlights an impermissible joining of two FCC 
proceedings that, as I understand it, are supposed to be kept 
separate--the sale of a broadcast license and the issuance of notice of 
apparent liability, which is the Commission process for adjudicating 
indecency complaints. That this improper joining occurred over the 
enforcement of the indecency standard is particularly troubling.
  The FCC needs to be particularly careful in this area, in light of 
the due process principles and the first amendment concerns articulated 
by two unanimous DC Court of Appeals decisions.
  In both decisions, the court struck down the foundations of the FCC's 
enforcement scheme, which should tell it something. While four notices 
have been issued against Infinity, it is my understanding that 
Commission issuance of such a notice of apparent liability, along with 
a proposed fine to a broadcaster, does not constitute any determination 
that there has been a violation of the indecency standard. The 
Commission has found Infinity violated the indecency standard only 
once, and it issued a $6,000 fine for that one broadcast, 4 years ago. 
The other cases are still pending at the FCC.
  Infinity has not yet been able to challenge the $6,000 fine in court, 
which it has told the FCC it intends to do. In each case, Infinity has 
denied any violation.
  It is these nonfinal notices of apparent liability that the FCC is 
using for proposing unprecedented fines, now totaling over $1 million. 
According to news reports, and this gets to the heart of what is wrong, 
the Commission has also used these same nonfinal notices as its basis 
for delaying Infinity's purchase of new radio stations.
  This appears to be in direct contravention of section 504(c) of the 
Communications Act, which provides basic due process guarantees to each 
licensee. Section 504(c) states:

       In any case where the Commission issues a notice of 
     apparent liability looking towards the imposition of a 
     forfeiture under this chapter, that shall not be used in any 
     other proceeding before the Commission to the prejudice of 
     the person to whom such notice was issued, unless, 1, the 
     forfeiture has been paid or, 2, a court of competent 
     jurisdiction has ordered payment of such forfeiture and such 
     payment has become final.

  The Commission has violated this procedure.
  There is no final court order on the indecency cases. Yet the 
Commission is using these cases as a basis for delaying the acquisition 
of another station. This is one of the most blatant examples of the 
abuse of regulatory power, arrogance, and, yes, regulatory lawlessness, 
that I can remember.
  Deliberately delaying a decision on an acquisition because of a 
nonfinal notice of apparent liability is in direct violation of section 
504(c) of the Federal Communications Act, which was passed by Congress 
specifically to ensure this due process rights of licensees are 
protected. Should an FCC Commissioner be allowed to make his decision 
above the law, how can we demand licensees follow the law, if the FCC 
does not adhere to the law?
  The Federal Communications Commission has an obligation to comply 
with the direction of the Federal courts, and abide by the requirements 
of the Communications Act and the first amendment. It is that simple.
  If one or more Commissioners believes an indecency standard has been 
violated, there are administrative procedures for adjudicating such 
complaints. But they may not use their personal reactions or incomplete 
enforcement proceedings to penalize program content or to impede or 
delay a company from doing business and acquiring new broadcast 
properties. Yet that appears to be precisely what has happened here.
  This is a particularly worrisome form of administrative browbeating. 
If it can be done to Infinity because of one show it can be done to any 
other company tomorrow, based on the content of a different program 
with which the commission does not agree.
  Maybe tomorrow it is Rush Limbaugh, or G. Gordon Liddy, or maybe 
Jerry Brown or Lynn Samuels or even some of my colleagues who offer 
commentaries. Who knows who it will be?
  I do not like some of the things I hear on the radio but that does 
not matter because, you see, this is the United States of America. 
People have a right to make their opinions known.
  So where do these people at the Federal Communications Commission get 
off doing this? I find myself agreeing with a newspaper I do not often 
agree with. As the Washington Post stated in a recent editorial re the 
Infinity case:

       The Infinity-Stern case points up a dangerous aspect of 
     government using its licensing and regulatory powers on a 
     part of the press to try to force changes in editorial 
     content.

  Censorship is arbitrary and Congress should start thinking hard about 
getting Government out of it.
  I ask unanimous consent this editorial be printed in the Record at 
the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. D'AMATO. That is exactly right. It will be a sad thing if the 
Congress of the United States has to get involved in setting straight 
something that is so basic.
  Mr. President, Commissioner Quello has seen fit to impose his 
standards of conduct in an area where it is totally inapplicable. I 
hope the other Commissioners would not give way to this kind of 
blackmail. Because that is exactly what it is. No one, whether we agree 
with him or not in terms of how he presents himself editorially, should 
be subjected to the kind of situation we have here in this case. So it 
is by way of my taking to the floor, I hope we would send a warning to 
the Commission that we are looking, that we are concerned, and that 
they have abused power in the most arbitrary of ways. That is not their 
right.
  Indeed, they violate the very protections that they should be 
providing for all. Free speech should not be abridged because one man 
does not like the commentaries or the programming that he sees.
  I yield the floor.

                               Exhibit 1

               [From the Washington Post, Jan. 15, 1994]

                         The Howard Stern Case

       Federal Communications Commissioner Andrew Barrett and a 
     source close to Commissioner Ervin Duggan have told Post 
     staff writer Paul Farhi that no, there has never been any 
     agreement to delay or block the purchase of three radio 
     stations by Howard Stern's employer, Infinity Broadcasting 
     Corp. That's good--because there has never been any 
     justification for doing so. In fact there is no justification 
     for what the FCC has done to Infinity already--which has been 
     to hit the company with more than $1.2 million in fines for 
     alleged violations by Mr. Stern of FCC strictures on 
     ``language that describes in terms patently offensive as 
     measured by community standards . . . sexual or excretory 
     activities or organs.'' As Nicholas Lemann wrote on the 
     opposite page Thursday, the whole Infinity-Stern case points 
     up a dangerous aspect of government using its licensing and 
     regulatory powers on a part of the press to try to force 
     changes in editorial content.
       What the commission has been doing--and the possibility 
     that it could still move to wreck a $170 million purchase 
     because of what Howard Stern says on the air--is censorship. 
     Though access to the broadcast airwaves is limited and 
     therefore has been treated as a matter for close government 
     regulation, the enormous growth in available television 
     channels for programming, as well the proliferation of radio 
     stations, makes an even stronger case against the old 
     programming requirements that the FCC made up in the name of 
     ``fairness'' and ``diversity'' in program content.
       Mr. Stern's program can hardly be described as everyone's 
     idea of acceptable entertainment to put it mildly--but the 
     same could be said about many other talk shows that are 
     readily available on the air at any time of day. Censorship 
     is arbitrary, and Congress should start thinking hard about 
     getting government out of it.
       Commissioner Duggan has said that ``the idea that we are 
     just sitting on'' Infinity's applications to buy stations 
     ``is just not accurate. It's premature to say we are blocking 
     the purchases.'' It shouldn't even be premature. The FCC 
     should make it dead wrong.

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