Consider the following, which aired on an NBC special this past May at 8:00during the so-called Family Hour. In this scene, Dana Carvey appears as one of his old Saturday Night Live characters, "Church Lady," to talk to former child star Macaulay Culkin about his sleepovers with Michael Jackson.

Church Lady: "Did he ever dangle anything in front of you at the sleepovers?"

Culkin: "Dangle what?"

Church Lady: “Oh, I don't know. Say, his ‘happy man loaf?.......When he moon-walked, he didn't moon you as he walked, did he?... How about your friends you took to the sleepovers. Did he ever get into Billy's jeans?"

Second guest, Michael Imperioli: “I mean come on, you trying to tell me you're screwing your little jingle bells up against the King of Pop and his shalonz never rose up to salute you? Come on, man. Side by side on the Sealy Posturepedic, you never played hide the toast'? Give me a break.”Church Lady: “Alrighty, well, I think it's time to 'Beat It.""

What child needs to be exposed to this? Is pedophilia now a laughing matter? Would you want to have to explain to your youngster what “hide the toast" means? Nevertheless, this was broadcast over the public airwaves-the public's airwavesright into the family home, "the one place," according to the Supreme Court, "where people ordinarily have the right not to be assaulted by uninvited and offensive sights and sounds."

My libertarian instinct makes me uncomfortable with the notion of coming before Congress to ask for your help, but I do so now, on behalf of tens of millions of parents, simply because it's time that Congress inserted itself to halt this growing problem. The Congress, pure and simple, needs to insist that the FCC do its job correctly.

What should the FCC be doing that it's not doing presently?

It begins with the need for the FCC to start monitoring what's on broadcast television. The FCC has a whopping $278 million + annual subsidy from the Congress, yet somehow can't find the time or the resources to monitor what's on broadcast television. (Parenthetically, let me point out that with a budget of approximately two percent of the FCC's, the Parents Television Council manages to do it.)

It shouldn't be up to the public to point out the violations on the airwaves. It should be up to the FCC to find them.

How disinterested is the FCC in its responsibility to monitor indecency on television? Even with that $278 million annual subsidy. The FCC apparently still can't afford to have a single person working full time on this issue. Not a one. That fact comes to us from the FCC directly.

Second, the FCC needs to start responding to complaints instead of playing games with the public. I have been promised personally by Chairman Powell that every complaint would get a response, and yet on a regular basis, thousands upon thousands of people filing complaints hear nothing. I refer you to our report, Dereliction of Duty, which documents how the FCC has sat on thousands of complaints going back almost two years.

While accepting an award during the December 2002 Billboard Music Awards on Fox, pop-star Cher said, "People have been telling me I'm on the way out every year, right? So f*ck 'em." How long should it have taken the FCC to decide if this was indecent? The answer is: quite a while, apparently. It's been over a year and the FCC has yet to act on it.

The FCC must also be told to stop playing games with the public when it comes to filing complaints. The Chairman of the FCC assured me personally that it was absolutely false that the FCC was requiring the public to attach a transcript of the actual show in question, something that is virtually impossible for a complainant to have handy at the moment. And yet if you look at the FCC website, that's exactly what it instructs the public to do.

The FCC must be told to stop playing games with numbers. The FCC reported that claimed that in the second quarter of 2003 it received only 351 complaints about broadcast indecency. That was preposterous, simply untrue. In that same period, PTC members alone filed over 8,000 complaints. The FCC in turn lumped all of them in one basket and called it one complaint.

The FCC must be told to stop blocking—yes, blocking—complaints, too! Recently we were told by many of our supporters that their e-mailed complaints were being returned as "undeliverable." When we looked into this we were told by a source within the FCC that they were being blocked deliberately.

Third, the FCC must be told to start enforcing the law by attaching meaningful fines to those who are violating the public trust with deliberate indecencies on broadcast television. The $27,000 maximum fine is a joke, and everyone knows it. It is most welcome news, Chairman Upton, that you are proposing that fine be in

creased tenfold and that the fines be increased up to $3 million for continued offenses. But the fact remains that all is for naught so long as the FCC refuses to levy fines when appropriate. The FCC must be told in no uncertain terms that it has the obligation to do that to protect the public airwaves. Moreover, Congress should insist that the FCC fine stations for each violation. If a shock-jock uses the "s" word ten times on his show, his station should receive ten fines, not one.

Finally, the FCC must get serious about revoking station licenses for those who refuse to abide by standards of decency. The use of the public airwaves is not an entitlement, a right. It is a privilege, and a privilege to be honored. Rather than giving networks more stations as a reward for their irresponsible behavior, perhaps the Congress ought to consider steps to reduce the number of stations allowed for those continuously spitting in the public's face.

I am a father of five who has spent twenty five years trying to shield my children from offensive messages coming across the airwaves I own. God willing, I'll be a grandfather some day. Wouldn't it be wonderful if my grandchildren didn't have to endure such abuse? If the Congress takes the appropriate steps to force the FCC to do its job, the public trust will be protected and this assault on decency will come to an end. Only Congress can do that, too.

And if you do, an entire generation of grandparents, parents, and their children will thank you for it.

Mr. UPTON. Thank you.

Mr. Corn-Revere.

STATEMENT OF ROBERT CORN-REVERE

Mr. CORN-REVERE. Mr. Chairman, members of the committee, thank you for inviting me to testify about FCC enforcement of the broadcast indecency standard.

I will address some of the constitutional issues that arise from the FCC broadcast content and will explore some of the changes in the Commission's report.

Although I actively represent clients with respect to these issues, my testimony today represents my personal views and should not necessarily be attributed to my clients or other parties.

This hearing and the FCC's recent indecency actions, including those mentioned yesterday, appear to be a significant change in the FCC approach toward content regulation. In addition, various proposals to bolster the FCC's policies are pending, such as H.R. 3717 to increase the level of indecency fines by tenfold, are pending and H.R. 3687, which would amend Section 1464 of the Criminal Code to create a list of eight words and phrases that would have been indecent per se evidently, regardless of the context in which they were used.

The purpose of my testimony today is not to assess any particular action or proposed action in this area. I have not been asked to do so. My principal point is this. Whatever action the Congress or FCC must take, it must be accompanied by a comprehensive and good-faith review of the FCC's policies.

Chairman Powell has said, as government pushes the limits of its authority to regulate content of speech, the more its action should be constitutionally scrutinized, not less. Now, admittedly, he hasn't said this recently, but it remains true, nonetheless.

My prepared testimony provides a fairly detailed explanation for my conclusion, so I will summarize my views with the following three points:

First, the Supreme Court five to four decision in FCC v. Pacifica Foundation did not give the FCC carte blanche authority to decide whatever it thinks broadcasters put on is indecent or to impose unlimited penalties.

It is important to bear in mind the ability to regulate indecent speech is a limited constitutional exception, not the general rule. The Supreme Court has even validated efforts to restrict indecency in print, on film, in the mails, in the public forum, on public television, and on the Internet.

In Pacifica, the so-called seven dirty words case, the court has described its action as an emphatically very narrow holding and the justices stressed that they were reaching a decision in light of the fact that no penalties were assessed against Pacifica in that case. Four justices dissented in Pacifica; and Justice Powell, who provided the crucial vote, stressed this is not to say that the Commission has an unrestricted license to decide what speech protected in other media may be banned from the airwaves. He added that the decision does not apply to cases involving the isolated use of a potential offensive word in the course of a broadcast, such as the Golden Globes's broadcast, and in Justice Powell's words the FCC was to proceed cautiously.

The real question to be answered is whether Pacifica would be reaffirmed today even if there is no change in the FCC policy.

Second, the FCC indecency standard represents a constitutional paradox. It purports to regulate speech that the courts agree is constitutionally protected.

The indecency standard is the current manifestation of the test for obscenity as existed in Victorian England in the 19th Century. It was imported to this country as the test for obscenity in the days of Anthony Comstock. But as the first amendment doctrine evolved and let courts to fashion a more precise test obscenity, the law of indecency failed to keep up.

Indecency law remains just as Justice Potter Stewart said of the early attempts to define obscenity: I may not be able to intelligently define it, he said, but I know it when I see it.

Unfortunately, given the imprecise contours, the FCC cannot say the same thing, that it knows it when it sees it. It is continually trying to revise its views and provide scant guidance either for those who must comport with the law or for those who must comply with it.

Third, there are no quick fixes here. It really is not that easy. For one thing, under such a rule, certain passages in the Bible would be banned from the air. Isaiah, Chapter 36, Verse 12, would be out, as would Samuel, Chapter 25, Verse 22. So would certain newscasts.

In 1991, the FCC dismissed an indecency complaint against National Public Radio for a newscast which included an excerpt of a wiretap from the mob trial of mob boss, John Gotti. The same word or variations thereof that appeared in the Golden Globes telecast was repeated 10 times in the course of any 30-second segment. Nevertheless, the Commission found that, given the surrounding circumstances, the use of expletives during the Gotti segment does not meet its determination of broadcast indecency.

Under a per-se indecency rule the FCC would not be able to show the same flexibility during the course of a newscast or a political speech, for example. Similarly, in 1987, the Mass Media Bureau reluctantly and kind of obliquely gave a green light to an on-air reading of James Joyce' Ulysses, saying the licensee could make an in

formed editorial choice based on the fact that Federal courts had refused to uphold a ban of Ulysses in 1933.

Under a per-se rule, the FCC would be returned to its pre-1933 standard, so the only point that I am making is that such easy and reflexive solutions are not necessarily the right course to go, the right course to take and would face significant opposition in case of a court challenge.

The point of my testimony really is just that whatever action the Congress or the FCC takes, it needs to be accompanied by rigorous first amendment review.

[The prepared statement of Robert Corn-Revere follows:]

PREPARED STATEMENT OF ROBERT CORN-REVERE, PARTNER, DAVIS WRIGHT
TREMAINE LLP

Mr. Chairman, and Members of the Committee. Thank you for inviting me to testify about Federal Communications Commission ("FCC") enforcement of the broadcast indecency standard.' I will address some of the constitutional issues that arise from the FCC's regulation of broadcast content, and will explore the potential implications of changes in the Commission's approach to indecency. Based on my analysis, I suggest that any changes in the policy should be accompanied by a comprehensive rulemaking proceeding that examines fully the First Amendment implications of the FCC's rules. Such review should take place regardless of whether changes are initiated at the FCC or directed by Congress.

I. RECENT DEVELOPMENTS WITH ENFORCEMENT OF THE FCC'S INDECENCY POLICY The FCC and the enforcement of its indecency rules has received a great deal of attention lately. Much of it-though by no means all-centers on a recent staff decision declining to impose a penalty on broadcast of one particular expletive 2 during a live broadcast of the Golden Globe Awards last January.3 That decision currently is under review by the full Commission, and Chairman Powell has stated publicly that he intends for the agency to overrule the Bureau order.4 According to press reports, the Chairman proposed a rule "that would nearly guarantee an FCC fine if [the profanity is] uttered between 6 a.m. and 10 p.m. on radio and broadcast television." One possible exception to a per se indecency rule would be when a profane word is uttered "in a political situation."5 Other Commissioners have expressed similar views, as have various members of Congress.7

Much of the adverse reaction to the staff Golden Globes Order centers on its observation that the word "f**king' may be crude and offensive, but, in the context

This testimony represents my personal views and should not be attributed to any clients or other parties.

2 During the unscripted broadcast, Bono of the band U-2 accepted an award with the comment, "This is really, really f**king brilliant." At the request of Committee staff for purposes of decorum, specific references to expletives in my testimony will be altered with the use of asterisks (as above), including when such words appear in congressional proposals and Supreme Court opinions.

3 In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program, DA 03-3045 (Enforcement Bureau, released Oct. 3, 2003) ("Golden Globes Order"). The staff ruling denied 234 complaints the Commission received about the Golden Globes broadcast, of which 93 percent (217 complaints) came from persons associated with the Parent's Television Council. By contrast, about 27 million viewers tune in to the annual Golden Globes broadcast. See Lisa de Moraes, The Golden Globes, More Glittery Than Ever, WASHINGTON POST, January 27, 2004 at C7.

4 It is unusual to see a Chairman and other Commissioners publicly lobby to change a staff ruling, since any agency orders issued on delegated authority may be reversed by the Commissioners as a routine matter. Moreover, full Commission review already has been sought in this

case.

5 See Frank Ahrens, Powell Seeks Reversal of Profanity Ruling, WASHINGTON POST, January 14, 2004 at E1.

6 See, e.g., Remarks of Commissioner Kevin J. Martin, 21st Annual Institute on Telecommunications Policy & Regulation, December 5, 2003; Letter from Commissioner Michael J. Copps to L. Brent Bozell, III, October 27, 2003 ("The Commission has arguably come to put more emphasis in recent years on the contextual presentation of indecency. I am concerned that we may be too narrow in our interpretation of the statute.").

7 See Letter from Rep. Chip Pickering to Chairman Michael Powell, November 21, 2003; Letter from Rep. Joseph Pitts to Chairman Michael Powell, November 21, 2003 (with 30 additional signatories).

presented here," may not be actionably indecent when used "as an adjective or expletive to emphasize an exclamation." 8 In a less discussed part of the Order, however, the Bureau also found that "fleeting and isolated remarks of this nature do not warrant Commission action," a proposition for which there is ample precedent.10 In fact, the initial FCC orders that preceeded Supreme Court review in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) stressed that it would be inequitable to hold a licensee responsible for indecent language when "public events likely to produce offensive speech are covered live, and there is no opportunity for journalistic editing." Justice Powell, who supplied the crucial swing vote for Pacifica's slim majority, stressed that “[t]he Commission's holding, and certainly the Court's holding today, does not speak to cases involving the isolated use of a potentially offensive word." 12 But whether or not the Golden Globes Order is defensible on other grounds, it may be fairly safe to assume given the present climate that the days of the Bureau decision are numbered.

The official responses spawned by the current controversy would seem to ensure this outcome. Both the House of Representatives and the Senate introduced resolutions condemning the Golden Globes Order, and have urged the FCC generally to take a more activist role in indecency enforcement.13 In addition, Congressman Ose introduced H.R. 3687 to address directly the Bureau's reasoning regarding the contextual use of expletives. It proposes to amend 18 U.S.C. § 1464 to specify that the term "profane', used with respect to language, includes the words 'sh*t', 'pi*s', 'f**k', 'cu*t', ‘a**hole', and the phrases 'c**k sucker', 'mother f**ker', and 'a** hole', compound use (including hyphenated compounds) of such words and phrases with each other or with other words and phrases, and other grammatical forms of such words and phrases (including verb, adjective, gerund, participle, and infinitive forms)." 14

Chairman Upton also has urged the Commission to reverse the Golden Globes Order and on January 21 introduced H.R. 3717 to increase substantially the financial penalties the Commission may impose for violations of its indecency rules. 15 Chairman Powell has endorsed the imposition of vastly higher fines, and has called for a ten-fold increase in forfeiture levels in order to create more of a deterrent effect on broadcast programmers. 16 These actions have come after the Commission announced its intention to impose a number of significant fines under existing rules,

8 Golden Globes Order, ¶5. In point of fact, the word "f**king" in the context of the complaint was used as an adverb. But it is doubtful the grammatical difference would mollify those most upset with the ruling. See, e.g., H.R. 3687, 108th Cong., 1st Sess. (introduced Dec. 8, 2003) (proposing to specify words that are indecent per se, including all “grammatical forms of such words and phrases (including verb, adjective, gerund, participle, and infinitive forms)").

9 Id. 16.

10 See Industry Guidance on the Commission's Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd. 7999, 8008-09 (2001) (“Industry Guidance"); Lincoln Dellar, Renewal of License for Stations KPRL(AM) and KDDB(FM), 8 FCC Rcd. 2582, 2585 (Mass Media Bureau 1993); L.M. Communications of South Carolina, Inc. (WYBB(FM)), 7 FCC Rcd. 1595 (Mass Media Bureau 1992) (fleeting and isolated utterance in a live and spontaneous program is not actionable); Pacifica Foundation, 95 F.C.C.2d 750, 760 (1983) ("speech that is indecent must involve more than an isolated use of an offensive word"). 11 In the Matter_of a Petition for Clarification or Reconsideration of a Citizen's Complaint Against Pacifica Foundation, Station WBAI(FM), New York, N.Y., 59 F.C.C.2d 892, 893 n.1 (1976).

12 Pacifica, 438 U.S. at 760-761 (Powell, J., concurring). See also id. at 772 (Brennan J., dissenting) ("I believe that the FCC is estopped from using either this decision or its own orders in this case... as a basis for imposing sanctions on any public radio broadcast other than one aired during the daytime or early evening and containing the relentless repetition, for longer than a brief interval, of [offensive language].").

13 H. Res. 482, 108th Cong., 1st Sess. (Dec. 8, 2003) (expressing sense of the House the Golden Globes Order is erroneous and directing the FCC to "utilize its enforcement authority to its proper extent"); S. Res. 283, 108th Cong., 1st Sess. (Dec. 9, 2003) (expressing sense of the Senate with respect to a number of FCC decisions, and suggesting that the Commission should reconsider the Golden Globes Order plus undertake "new and serious efforts to sanction broadcast licensees that refuse to adhere to the [indecency] standard"). The Senate resolution was approved by unanimous consent. CONG. REC., December 9, 2003 at S16213.

14 H.R. 3687, 108th Cong., 1st Sess. (introduced Dec. 8, 2003).

15 H.R. 3717, 108th Cong., 2d Sess. (January 21, 2004). The bill would amend Section 503(b)(2) of the Communications Act to authorize fines of up to $275,000 for each violation of the FCC's indecency rules up to a limit of $3 million "for any single act or failure to act" in the case of a continuing violation. The language of the bill suggests that such penalites could be imposed even if the violation is not "willful" or "repeated."

16 See Ahrens, supra note 5.