[Congressional Record Volume 140, Number 52 (Wednesday, May 4, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 4, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                             FCC PROCEDURE

  Mr. D'AMATO. Madam President, on March 16, I came to this floor to 
express my objections to the troubling manner in which the Federal 
Communications Commission has treated one of my constituents, Infinity 
Broadcasting Corp. In my remarks, I took issue with the Commission for 
holding up an attempt by Infinity to purchase a Los Angeles radio 
station--at an enormous cost to Infinity--because the Commission did 
not like the content of one of Infinity's programs--The Howard Stern 
Show.
  My point was not to debate the merits of the Howard Stern show, or 
any other. As I said on the floor, If you like him, you like him. If 
you do not, you do not. And if someone thinks that anything Howard 
Stern or anyone else says on the air is indecent, they can file a 
complaint. There are procedures for adjudicating those complaints. 
And--as I stated on March 16--if Howard Stern, or Infinity, or anybody 
else, breaks the law they should be punished.
  What brought me to the floor on March 16 was my outrage at the manner 
in which the FCC overstepped its bounds by delaying Infinity's 
acquisition of a Los Angeles radio station by improperly linking the 
sale to what is required by law to be a separate procedure for 
adjudicating indecency complaints.
  While I did not expect my remarks to go unanswered by the FCC, 
nothing could have prepared me for Commissioner Quello's inaccurate and 
offensive reply of April 29, 1994.
  And nothing in that reply could have been more offensive to me 
personally than his attempt to suggest that my ethnic and religious 
heritage ought to disqualify me from taking a stand for the first 
amendment when I see it being violated in the actions of the Federal 
Communications Commission.
  Let me read from page 1 of Commissioner Quello's letter.
  He says:

       It would embarrass any responsible adult, let alone we 
     Catholic Italian-Americans, to condone the egregious Stern 
     broadcasts * * *

  On page 2, he states:

       Please Senator, take time to read the more detailed 
     excerpts of the indecency violations attached to this letter 
     but please don't share them with your priest even in the 
     confessional, and risk excommunication.

  Madam President, the first amendment is the same for all Americans no 
matter what their religion or ethnic background. I am no less entitled 
to stand up for the protection that the first amendment represents as a 
Catholic Italian-American than is any other American of any other 
ethnic or religious heritage.
  Unfortunately, Commissioner Quello seems to be trying to impose his 
own personal views on what is appropriate first amendment expression on 
all Americans.
  Now he is using ethnicity and religion as the basis for his official 
actions. This is just plain wrong. Federal regulators wield tremendous 
power, especially in the case of licensing proceedings. Someone who 
comes before the FCC with a license application should be judged fairly 
and on their own merits. They should not have to fear that the ethnic 
background and religion of the decisionmaker will determine the 
outcome. This is not what our country is about.
  Madam President, I point out in my reply and in my remarks seven 
specific examples of what I believe to be errors that Commissioner 
Quello's letter of April 29 contains, because it is filled with 
inaccuracies and distortions. The point is, Infinity is entitled to be 
treated fairly and without bias on the part of the bureaucrats. 
Commissioner Quello's letter of April 29 is filled with inaccuracies 
and distortions of the facts of this matter. Let me briefly discuss 
them:
  First, Commissioner Quello states, once again, that Infinity has been 
repeatedly found to have violated the indecency standard. To date, 
Infinity has been the subject of a final decision by the FCC as to an 
indecency standard violation only once--resulting in a $6,000 fine for 
a single broadcast by Howard Stern in 1988.
  Commissioner Quello's references to fines in excess of $1,506,000 for 
``repeated, egregious indecency violations'' are false, statements 
picked up by the press over and over. He knows that the FCC itself has 
not finally acted on its notices to Infinity other than the one $6,000 
proposed fine.
  Second, when Commissioner Quello repeatedly uses the word 
``violations'', referring to Infinity and several Howard Stern 
broadcasts, he also shows his willingness to serve as judge and jury 
and his ignorance of elemental principles of due process. Not only has 
he not been able as yet to get the rest of the Commission to agree with 
him, other than the one instance from the single 1988 broadcast, but he 
fails to mention that Infinity has never gotten its day in court. The 
one final citation issued by the FCC--the 1988 broadcast, resulting in 
the $6000 fine--is merely an administrative citation, like a traffic 
citation. Infinity, or any other broadcaster, has a right to have its 
day in court when it can defend itself like any other citizen. Yet 
under current law, a broadcaster cited by the FCC for indecency doesn't 
ever get its day in court until the U.S. Department of Justice decides 
to enforce the fine by filling a collection action in court. That is 
right, Infinity has never had its day in court, even regarding the 
one instance in which the FCC has issued a final decision.

  Third, Commissioner Quello makes a highly misleading reference to the 
Act III decisions as supporting his views of the indecency standard. In 
fact, three unanimous decisions by the U.S. Court of Appeals for the 
District of Columbia struck down the indecency standard enforcement 
policy utilized against Infinity and supported by Commissioner Quello 
as unconstitutional and inconsistent with the first amendment. Let us 
be clear: The very enforcement policy Commissioner Quello embraces has 
been determined by the D.C. Court of Appeals to be unconstitutional by 
virtue of the first amendment. The full court of appeals en banc is now 
reviewing the last decision of the court of appeals in the Act III 
case.
  Fourth, the most remarkable aspect of Commissioner Quello's diatribe 
is that he thinks the indecency standard is not what the Commission has 
clearly stated but what personally offends him. In other words, on the 
one hand Commissioner Quello wants broadcasters to comply with the law 
and not violate the indecency standard, but on the other hand, 
Commissioner Quello thinks he is free to ignore the indecency standard 
and enforce one which is based on his own personal tastes. Fortunately, 
we live in a country which is governed by the rule of law, not by the 
personal whims and tastes of a particular regulator.
  Fifth, Commissioner Quello's reference to the delays concerning 
Infinity's acquisition of KRTH is also misleading. It was Commissioner 
Quello himself who called the New York Times just before New Year's 
1993 to brag that his opposition to granting Infinity's application to 
purchase KRTH as a result of alleged indecency violations was the 
reason for the delay. This blatant admission of regulatory abuse by one 
Commissioner was subsequently criticized, in public to the press, by 
the two other Commissioners he was presuming to speak for--who made it 
clear that Commissioner Quello was off on his own and should not have 
presumed to speak for the Commission.

  Sixth, speaking of the rule of law: Commissioner Quello should read 
the words of section 504(c) of the Communications Act, which forbids 
using nonfinal citations on alleged indecency violations to prejudice 
any other proceeding, such as an application to approve an acquisition. 
He knows that his words and actions constitute open defiance of this 
provision. But once again, Commissioner Quello seems unwilling to abide 
by, or not to care at all about his own disregard of, the law.
  Seventh, the result is that Infinity is not receiving its right to 
due process by the FCC. There is no final court order in the indecency 
cases. Yet the FCC is using these cases as a basis for delaying 
Infinity's purchases of other stations. That is unfair. It is bad 
public policy. The FCC should comply with the law and proceed to 
process the applications for assignment, including the pending one 
concerning the acquisition of WPGC here in Washington.
  I simply point out, if I might, that this is outrageous. I do not 
think that my religious or ethnic background--or what a priest may or 
may not say should have any bearing on my responsibility to uphold the 
first amendment as it relates to Howard Stern, Infinity Broadcasting 
Corp., or anyone else.
  I do not think in this day and age a Commissioner should be 
exercising his judgment based on ethnicity or religion. I think the 
letter speaks for itself as to the outrageous conduct of the FCC.
  I thank the Chair for being as gracious as she has been, and I yield 
the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. PRYOR. Madam President, I thank the Chair for recognizing me.

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