ment during the Golden Globe presentation (e.g., "thanks for the trophy, and, by the way, f**k the war in Iraq"), the Commission would face the same interpretive problem that currently exists, given the weight of precedent in this area. 159 In short, there are no easy answers in this area, whether one proposes a straight per se indecency rule, or one with one or more exceptions. Either way, Congress and the FCC will have the task of drawing and defending a line between speech that is protected and expression that can be punished. CONCLUSION Congress and the FCC currently are considering an array of proposals to increase the level of enforcement of the FCC's broadcast indecency rules and to apply the standard more strictly. However, it has been 25 years since the Supreme Court considered the First Amendment implications of indecency enforcement in the context of broadcasting, and much has changed during that time. Any move to reaffirm the existing rules or to make them more stingent must be accompanied by a comprehensive review of the rules' constitutionality. The law of indecency is the direct descendent of the Hicklin rule-a legal doctrine born during the reign of Queen Victoria. Imported to America during the age of Anthony Comstock in the Nineteenth Century, it governed obscenity law until the First Amendment was brought to bear over half a century later. Under its lax standards, courts focused primarily on the potential impact of books on children, with the predictable result that literary classics were prosecuted and banned. This doctrine is unknown in American jurisprudence today but for one area: the FCC's broadcast indecency rules. Although courts and the Commission routinely state that indecent speech-unlike obscenity-is constitutionally protected, the standard the government employs permits it to penalize speech without regard to the work as a whole, its artistic merit, or its overall appeal to the average person. Where the Victorian era obscenity standard was used to censor Ulysses, An American Tragedy, and Tropic of Cancer, the indecency standard has effectively suppressed works like the Peabody Award winner The Singing Detective, critically-acclaimed plays, and political poetry like "Your Revolution." Because of its vagueness, the indecency test can be used to restrict a wide range of constitutionally protected speech including "discussions of prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library." ." 160 For that reason, a full constitutional review of the FCC policy is essential. Mr. UPTON. Thank you. Mr. Wertz. STATEMENT OF WILLIAM J. WERTZ Mr. WERTZ. Thank you, Mr. Chairman and members of the committee, for allowing me to share our convictions on the issue of decency and community standards with you. We are a long-time broadcast licensee, and we believe that the broadcast license should be permitted to use the seven words George Carlin says you can use on the air. I understand first amendment considerations cause the FCC to be reluctant to take a firm stand on obscenity and community standards issues, and the root of this likely dates to when the National Association of Broadcasters Code of Ethics was struck down on antitrust issues over 20 years ago in a court case brought by the Justice Department against the NAB. Since the NAB settled that case and the Code of Ethics was eliminated, there has been a steady decline of over-the-air decency standards as some have 159 E.g., Cohen v. California, 403 U.S. 15, 25 (1971) (political slogan "f**k the draft" is protected under the First Amendment). This was just one of a series of decisions in which the Supreme Court held that the use of four-letter words in a variety of political contexts is constitutionally protected. E.g., Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) (university newspaper); Kois v. Wisconsin, 408 U.S. 229, 231-232 (1972) ("sex poem" in underground newspaper); Cason v. City of Columbus, 409 U.S. 1053 (1972); Rosenfeld v. New Jersey, 408 U.S. 901 (1972) (school board meeting); Lewis v. City of New Orleans, 408 U.S. 913 (1972) (confrontation with police); Brown v. Oklahoma, 408 U.S. 914 (1972) (political rally). 160 Reno, 521 U.S. at 878. pushed the envelope to the ripping point and far exceeded what any reasonable person would find as generally accepted community standards. We aired announcements on WQLR and WKZO, two of our stations, and would like to share some of them with you. Although I do not consider myself a prude, I find the level of obscenity on the air is not tolerable. Please fight for much stricter guidelines and controls so our children do not have to listen to the vulgar garbage that seems to be taking over. From another E-mail: This is a sensitive subject, especially when you are raising a 12-year-old son. Your stations I believe do set the tone in this community. It is so troubling to see what is really happening out there today, in journalism, print, radio, and television. There just seems to be almost no stopping as to where this is going. And the third: For the love of our children, we should not rob them of their innocence by perverting their minds and exposing them to the vile hatred that we are witnessing in the world today. The National Association of Broadcasters issued a voluntary statement of principles for radio and TV broadcasters in the early 1990's, but it has no enforcement action. I would suggest this hearing cover a majority of issues, including, and I quote: Where significant child audience can be expected, particular care should be exercised when addressing sexual themes. Obscenity is not constitutionally protected speech and is at all times unacceptable for broadcast. In conclusion, our company has always strived to set the bar for radio broadcasting in Kalamazoo, Michigan, and the subject of this hearing is vitally important to our listeners, to our community, and to us. We are very concerned that we witness the steady decline of over-the-air decency standards and at the same time lament the determination in 1982 of the NAB Code of Ethics that held stations to a higher standards. The voluntary NAB statement of principles should be an excellent starting point for restoring decency as defined by generally accepted community standards. It is my hope the government would permit NAB to establish voluntary guidelines and allow it to create a self-enforcement division that would administer obscenity and decency on radio and TV and also that NAB will accept this responsibility. I will personally volunteer my time to NAB, if it is permitted, to pursue this avenue. Many of us in radio have repeatedly asked for clear guidelines and guidance from the FCC, but perhaps it is best if these guidelines were developed by those of us in the industry on this issue. It is my hope that this hearing today will begin that process. Thank you, Mr. Chairman. [The prepared statement of William Wertz follows:] "Radio and Talk Radio in particular - a bastion of Free Speech - seems, ironically, to be asking for some guidance from the FCC on content regulation." Holland Cooke I'm William Wertz, Executive Vice-President and co-owner of Fairfield Broadcasting Company in Kalamazoo, Michigan. Our company owns and operates 4 radio stations (Q106.5 WQLR-FM, The Sports Station AM1660 WQSN-AM, Super Talk AM1470 WKLZ-AM and Kalamazoo's News/Talk AM590 WKZO-AM, all licensed to Kalamazoo. We are Kalamazoo's only locally owned and operated daily media and we've been serving the listeners of our area since 1972 with over 40 full-time employees. The Kalamazoo-Battle Creek 3-County (Kalamazoo-Calhoun-Van Buren) SMSA Census 2000 population 12+, updated by Claritas, is 381,800. I've been in radio since 1968 starting with Susquehanna Broadcasting Company in York, PA, worked as a Programming Consultant to over 100 Radio stations, am a founding member and current member of the Board of Directors of Kalamazoo Public Schools' noncommercial/educational Radio station WKDS-FM, am on the Board of Directors of the Michigan Association of Broadcasters Foundation, and have worked with my business partner, Stephen Trivers, since 1969. Mr. Trivers has spent his entire adult life in radio, having started at WAGA in Atlanta Georgia in the summer of 1957; he served as Program Director of WPAT AM/FM in New York City in 1963-1964 and held sales/management positions in Boston, Providence, and York PA in the late 60's/early 70's. He also served as Vice President of the NAFMB/NRBA Board of Directors in the 1970's/early 1980's and served as Chairman of the Michigan Association of Broadcasters in 1997. I believe, as a preamble, it's appropriate to share the Mission Statement of our company... "It is the mission of Fairfield Broadcasting Company to set the standard for radio broadcasting in the Kalamazoo Market. Our programming will be of the highest quality, emphasizing locally-focused content. Our advertising sales effort will be the most professional, client-focused available in the market. We will treat our employees with dignity and respect and we will endeavor to be fair in resolving conflicts. The entire staff will be the best-trained to be able to provide superior service to our listeners and advertisers." I have traveled here today to share with you our convictions on the issue of decency and community standards. We're a long-time Broadcast licensee (1972-current)...asking for direction from an FCC that seems not-to-want-to-take-on Infinity's "stunts" or, more specifically, issues that many of those of us in the industry consider to be beyond generally accepted community standards. I've always believed AM/FM/TV Broadcast licensees should not be permitted to use the 7-words George Carlin says you can't say on-the-air. At the same time the "cure" is sometimes more difficult than the "disease" itself and I understand to some degree why the FCC has been reluctant to take a firm stand on obscenity/community standards issues. The root of this likely dates to when the National Association of Broadcasters NAB Code of Ethics was struck down on anti-trust issues over 20 years ago in a court case brought by the Justice Department against the NAB. Since this Code of Ethics was eliminated there has been a steady decline of overthe-air decency standards as some Broadcasters, for a wide variety of reasons, have pushed the envelope to the ripping point and far exceeded what any reasonable person would define as generally accepted community standards. We aired promo's on WQLR-FM and WKZO-AM for 2 days, asking for comments, and they are included here. Please remember that our stations primarily appeal to Adults 25+. The beauty of radio is the ability to "target" a particular socio-economic group and, as such, responses from listeners under the age of 25 are likely to be not included in the following comments I've received... Here are the scripts Fairfield Broadcasting Company VP/Operations Ken Lanphear and KIDS ARE ALONG SIDE. THE RADIO INDUSTRY AS A WHOLE, PROUD ON HI, I'M WKZO'S DAVE JACONETTE. THE RADIO INDUSTRY, AS A WHOLE, These are the e-mails I've received as of January 23, 2004... "Although I don't consider myself a prude, I find the level of obscenity on the air is intolerable. Please fight for much stricter guidelines and controls so our children don't have to listen to the vulgar garbage that seems to be taking over." (Ed Bernard) "Thank you for the opportunity to provide you with input. This is a sensitive subject, especially when you are raising a 12-year-old son. Your stations, I believe, do set the tone in this community that I am extremely proud of. You and your management team should be proud of that. It is so troubling to see what is really happening out there today in journalism, print, radio and television. I can remember when the biggest secret we had was to see women in the J.C. Penny catalog in the underwear pages. There just seems to almost no stopping as to wear this is going. We do need standards and I believe you are a perfect one to represent West Michigan around your stations mission." Kathy Beauregard "I agree the FCC needs to regulate what is seen and heard on TV. The amount of sex, nudity, violence and inappropriate language has escalated in the last several years and I believe will only get worse if nothing is done. Talk shows, advertising, films, music, cartoons and news broadcasts have all pushed the envelope. The morals in this country are at an all time low and I believe something needs to be done now as I don't want my grandchildren viewing and hearing the trash that TV currently broadcasts. Thanks for giving me a chance to express my opinion." (Gary Niemeck) "I am writing regarding something I heard on the WKZO afternoon show yesterday, 1/21/2004. Dave Jaconette asked listeners for comments to be given to the FCC regarding profanity on the radio. I have two young daughters (ages 9 & 7) - we rarely allow them to watch TV, and my husband and I watch very little ourselves. We do not have cable, and we feel that most shows on "regular free" TV are trash - violent and/or filled with sex and sexual innuendos. The same holds true for radio. I don't let my children listen to very much radio except for the Children's Sunshine Network. I usually listen to WKZO and some radio talk shows in the evening (besides Christian stations) - but I will not listen to a station that is willing to broadcast offensive programming. I will not frequent businesses that support immoral, offensive TV or radio programs. I might be only one person, but I don't think I'm the only person who feels this way or responds as I do. For the love of our children, we should not rob them of their innocence by perverting their minds and exposing them to the vile hatred that we are witnessing in the world today. Let kids be kids while they are kids. We try to protect them from being hurt in automobiles by requiring them to be buckled in to their seats; we buy them helmets, knee pads, elbow pads, etc to protect them while they are bicycling and skating; we try to protect them from being hurt in fires by installing smoke detectors and sprinkler systems and teaching them escape routes; we try to protect them from the elements, such as damaging sun rays, by bundling them in the winter and covering their skin with sun block in the summer, there are laws in regards to noise pollution to protect their hearing, etc; there are warning labels on items with small pieces or plastic bags to protect children; our cleaning chemicals and medicines come in child resistant packaging to keep our children from swallowing something harmful; and the list could go on and on. How about their minds? When are we as a nation going to protect our children's minds from the damaging media presentations? If we allow their minds to be corrupted when they are young, they will grow up thinking that what they see and hear is the norm - no wonder so many teens are troubled. In my opinion, if adults want to see and hear trash, they should pay for it. But sponsored, free programming should be kept clean." (Robyn Lilek) "I do not know how to respond to your request on Broadcast indecency other than to say some of the language I hear on both radio and TV bothers me. On radio I don't even like to hear a hell or damn. Since TV gives me the ability to see the situation and contexts of the situation the language is used in I do not find that offensive. Any other language beyond the fore mentioned is not appropriate on either radio or TV. Maybe I am old fashion!!!" (Dan Nulty). "You may be surprised that I would say this, but you cannot legislate morality. People have to change. If there was not a market for all of the indecency, immorality, vulgarity and violence we have on the airways today, advertisers would not buy the airtime and the junk would never make it to the first show. At the same time though, someone has to draw a line in the sand and say "we will go this far, but no further". Now I understand that where I would draw the line is different from where you would and much different than where the Hollywood producers would. What has to be decided is what Middle America wants. My opinion is that most Americans do not want to see a lot of skin or suggestive bedroom scenes. Nor do they want to hear a lot of four letter words. These kinds of pictures and language are degrading to the viewers/listeners and to society as a whole. If a writer/producer has to use "little left to the imagination" dress or bedrooms scenes and/or vulgar language to make the show appealing, something is wrong with the show to begin with. Many of today's programs, radio and television, present behavior and language that is unusual (at least for most of America) as the norm. Fifty years ago, if you had called someone a SOB or said "screw you" to someone, you would have at least received a scowl, if not a "watch you tongue". Today's young people do not even know what those words mean! They just know to use them when they are upset with someone. The broadcast industry should think about what is good for society as a whole, because, without the society, they will not have listeners and viewers. It is not good to suggest that cheating on your partner is normal and acceptable. Nor is good to suggest that it is normal and acceptable for two people of the same sex to be partners. The idea that the only way to solve a problem is to shot someone, may not be portrayed on all shows, but often times it is. Some of these behaviors may be normal on the east coast and the left coast. But, even if they are normal, this kind of behavior is not good. Sometimes laws |