[Congressional Record Volume 151, Number 19 (Friday, February 18, 2005)]
[Extensions of Remarks]
[Pages E283-E284]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               BROADCAST DECENCY ENFORCEMENT ACT OF 2005

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                               speech of

                            HON. MARK UDALL

                              of colorado

                    in the house of representatives

                      Wednesday, February 16, 2005

  Mr. UDALL of Colorado. Mr. Speaker, I rise today in cautious support 
of the Broadcast Decency Enforcement Act of 2005. While I believe the 
public should be able to trust that the content of programming during 
peak viewing times is age-appropriate for children, I am concerned that 
strict regulations, if improperly applied, can result in infringements 
on our right to free speech.
  Parents ought to be able to watch or listen to public broadcasting 
without fear that obscene material is foisted on their children. The 
Federal Communication Commission's (FCC) role in encouraging and 
enforcing decency regulations provides parents with a level of security 
that their family can watch television together or listen to the radio 
on the way to school without concern about the appropriateness of the 
information for their children.
  As our society's values have changed with different trends, the FCC 
has provided a standard to guide broadcasters and encourage them to 
take into account the diversity of their audience when making 
programming decisions. This bill will retain these standards and 
dramatically increase the amount a broadcaster can be fined for each 
violation. While I support keeping broadcasters accountable to the 
public, I believe excessive fines could be a slippery slope toward 
violations of first amendment rights and public access to a diverse 
discussion of ideas. I am, therefore, supporting this legislation but 
with a deep concern that Congress may well have to re-examine the 
nature of these fines in future legislation, particularly if they have 
the effect of prior restraint on first amendment freedoms.
  In light of recent scrutiny of indecent material, many broadcasters, 
artists, and performers are looking toward unregulated airwaves, such 
as cable and satellite radio. If these programs and performers move to 
these arenas, the quality of public airwaves leaves with them. The free 
flow of ideas is the cornerstone of our society, and opens the minds of 
Americans to different ideas, cultures and lifestyles. Public 
television and radio provides a medium for these ideas to reach all 
Americans, not just those who can afford it.
  So it is with some deep hesitation that I vote for this bill, as I 
hope it will not set a dangerous precedent of excessive fines and 
regulation on television and radio content and possibly infringe on our 
first amendment rights, but instead ensure that broadcasters are aware 
and accountable for the content which they air.
  I am including an editorial printed in the Rocky Mountain News in 
March 2004, which I think raises important concerns to consider 
regarding the increase in fines that this bill will administer.

             [From the Rocky Mountain News, March 15, 2004]

               Congress Should Retreat in `Indecency' War

       Members of the U.S. House of Representatives stampeded 
     Thursday to pass a bill to appease voters offended by the 
     Superbowl display of Janet Jackson's breast. Unfortunately, 
     all of Colorado's House delegation (with the exception of 
     Mark Udall, who did not vote) displayed a herd mentality.
       The Broadcast Decency Enforcement Act, H.R. 3717, raises 
     the maximum fine for a decency violation to $500,000, an 
     amount that applies both to on-air personalities and to 
     broadcast outlets. But because broadcasters often own many 
     outlets, and programs often air in multiple markets, the 
     total fine for even a single slip of the tongue (or the 
     wardrobe) can be astronomical. The legislation was introduced 
     in January, before the Super Bowl, so it is probably just 
     coincidence that the new fine amounts to just about one 
     dollar for each of the more than 500,000 complaints about the 
     halftime show that flooded into the offices of the Federal 
     Communications Commission. But the rapid passage is certainly 
     no coincidence. Public outrage spooked Congress into acting.
       The vote was 391-22, with Ron Paul, R-Texas, the lone 
     Republican to stand up against congressional censorship.
       A Senate measure, S. 2056, has similar provisions for 
     raising fines, but also suspends

[[Page E284]]

     for a year FCC rules about how many media outlets a company 
     can own while the General Accounting Office investigates 
     whether consolidation in the broadcast media is connected 
     with indecency on the airwaves. It's awaiting action by the 
     full Senate.
       We're glad there is still lots of full-throated public 
     reaction against sleaze in the media (even if the public is 
     often fickle about what it considers inappropriate). The FCC 
     is supposed to uphold some standards, which is why it 
     monitors complaints and spells out the rules for what 
     constitutes ``exhibitionism,'' ``obscenity'' and 
     ``blasphemy.'' But the best pressure, we believe, is the 
     voice of thousands of individual consumers making their views 
     known to the companies that market the stuff.
       We understand that few politicians, especially with an 
     election nearing, are willing to risk being accused of 
     ``defending indecency.'' But Congress should tread lightly in 
     such matters. A law broad enough to ensure that no one's ear 
     or eye is offended will end up silencing speech--indignation 
     at government policies, for example, expressed in strong 
     language--that ought to enjoy full constitutional protection.
       ``It's a shame we have to address this issue,'' declared 
     House Majority Leader Tom DeLay, R-Texas, ``but when members 
     of the broadcast industry violate the boundaries of 
     reasonable tolerance, that's exactly what we're forced to 
     do.''
       Forced? Panicked is more like it, and the spectacle is 
     embarrassing.

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