In addition, the labels would characterize such changes as "artificial," "harmful," or "destroying the photography."

If the principal director, screenwriter or cinematographer is deceased, his or her heirs would need to be contacted and similar labels would need to be used if they so required them. In addition, such rules would apply to each distributor of a film, including syndicators, networks and others. Penalties for failing to satisfy these confusing and overlapping requirements could include injunctions, actual damages, and statutory claims of up to $100,000, as well as unlimited punitive damages for not making a "good faith" effort to notify the principals involved in making the film. Examples of how such labels would appear are attached to this testimony.

This legislation has a number of serious flaws. Stations would be forced to broadcast one or more pejorative, government-dictated labels on virtually every film they broadcast. The first label would be the one included by the film distributor reflecting any "material alteration" prior to release for television use. And since "material alteration" is defined so broadly, nearly any change to a film would trigger the notice requirement.

A second label would be added if the station itself "materially altered" the film. Thus, such a label would be required if a local airing of an unedited feature film would be inappropriate in light of community standards. It would be required if a film were edited to fit typical television clock-hour slots. In addition, during times of emergency, where weather bulletins or late-breaking news occurs, a station may have to delete parts of a film at the last minute in order to accommodate such announcements or news coverage. It may be impossible for a station to comply with the need to provide yet another label if such a late-breaking event occurs, yet failing to do so could render the station liable for thousands of dollars in punitive damages. Independent television stations, which rely heavily on feature films to fill their daily program schedules and often air several feature films each day, face a considerable risk just in broadcasting their typical daily program fare.

We note that the bill does define "material alterations" to exclude those alterations made to "comply with the requirements of the FCC." This exemption apparently is designed to address broadcasters' concerns about our ability to edit movies so that they are acceptable for broadcast over the public airwaves.

Yet this exemption is extremely vague, as broadcasters cannot be certain what is and what is not a "requirement" of the FCC for purposes of this legislation. In most instances, broadcasters' public interest obligations are not spelled out in the minute detail contemplated by this bill. The FCC does not act as a super-editor of broadcasters' programming practices. Instead, the FCC relies as much as possible upon the good-faith judgments of individual broadcasters regarding their public interest obligations, in deference to broadcasters' First Amendment rights.

Therefore, an exemption for FCC "requirements" will provide broadcasters with little guidance. Does it include, for example, editing out "indecency" in a film? Since the Communications Act prohibits "indecent" broadcasts, we would assume so. But there currently is a great deal of uncertainty about just what constitutes broadcast indecency. Just this week, the Supreme Court declined to review a lower court decision that struck down the FCC's attempt to impose a 24 hour per day ban on indecent programming. This is likely to result in several more years of further FCC proceedings and additional appeals before broadcasters have a clear understanding of what the FCC's "requirements" are with respect to broadcast indecency. Yet under this bill, broadcasters must run the risk of stiff sanctions if they air an altered film without the appropriate label.

What about program material that is not indecent, but which the broadcaster believes is inappropriate because of the potential that young people will be in the audience? Or what about edits made by a station in a small Midwest market which reflect local community standards, but which differ from those in Los Angeles or New York? Will broadcasters know which edits are allowed and which are not, and which require labels and which do not? Will the government decide? Should it?

In fact, this provision, designed ostensibly to protect broadcasters, may put us in an even bigger bind. It opens up the chasm between the demands of a film's creators not to change the film, and the need for the broadcaster to serve his community. It seems to us that broadcasters still will run afoul of the bill's notice, labeling and penalties provisions when they attempt to edit movies in such a way that serves their viewers, regardless of whether or not specific edits are in fulfillment of a FCC "requirement."

The requirement that such labels also appear in all print ads and station promos for the film clearly will create havoc with our ability to promote a film properly. By stating that the film's character has been changed over the objections of the director, screenwriter or cinematographer, such a promotional vehicle may actually discourage viewers from watching the films for which broadcasters have paid so dearly. We wonder how such labels would benefit those creators of the original film. If such labels were required in every promotional spot or ad for a film, the audience might end up with the misimpression that the station had destroyed the artistic integrity of the film, and not watch it at all.

Clearly, stations want as many viewers as possible. We do not haphazardly edit films in such a way as to diminish their attractiveness or their viewability. Stations which behave in such a fashion will soon lose all audience for their programs.

If this legislation passes, it clearly opens the door for certain creative contributors to films to attempt to force broadcasters to pay them for the right to air a film without such labels. When broadcast stations purchase the rights to air a film, they deal with the copyright holder, who owns the rights to the film. The director, the screenwriter and the cinematographer have already been paid for their services in making the film by the studio.

But implementation of H.R. 3051 would allow them to say to a broadcaster who wants to air their film: "If you will pay each of us Sx, we will not object to these alterations, thereby allowing you to air it without running the labels required under the law."

This bill, under the guise of "truth in labeling" for consumers, clearly points toward the creation of a new moral rights regime in our copyright laws. Broadcasters will be forced to pay twice for the same product -- once to the holder of the copyright, and once to artistic authors who have already been compensated for their work on the film.

This provision also would apply to some of the creative talent that the producer hires and their heirs. Thus, years from now, stations would have to locate the heirs of a deceased director and possibly negotiate again for permission to edit the film for broadcast. The bottom line is that this system of double payments will increase costs of airing films for broadcast, and will discourage or reduce the number of films which stations can afford to air. I see no public benefit to such a system.

Conclusion

In short, the system contemplated by this bill is fraught with danger, confusion and the potential for abuse. It does not serve the public interest, as it actually will discourage stations from airing movies on television. And it can lead to a new set of negotiations regarding payments to artistic authors of films, who have already been paid for their work on the film.

H.R. 3051 is a bad piece of legislation designed to solve a "problem" which some in the Hollywood creative community perceive, but which is not perceived by the American people who enjoy viewing these films on local broadcast stations.

If film producers, screenwriters and cinematographers want to keep their films off television, then this subcommittee should approve H.R. 3051. But if this subcommittee agrees that creating a new variant of moral rights under the guise of consumer labeling is not in the public interest, then I urge you to reject H.R. 3051. NAB and INTV both oppose this legislation as unnecessary, unworkable, and anti-consumer.