I have read the testimony. I found it fascinating that Mr. Wertz pointed out that in the 1950's the cast of I love Lucy could never use the word "pregnant" but only words such as expectant. I am dating myself, that is my all time favorite program, but I commend you, Mr. Chairman, for holding this hearing and I know that we on this committee take this very, very seriously and are going to be doing everything we can to come out with an acceptable way of dealing with this problem, and again I ask unanimous consent for my testimony, and I yield back my time. [The prepared statement of Hon. Eliot Engel follows:] PREPARED STATEMENT OF HON. ELIOT ENGEL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK Thank you Mr. Chairman: When my staff told me about this hearing and the reasons behind it, I really started to think. I thought about the impact that popular figures can have on our children. I thought about the fact that what popular figures say and do can sometimes have an extraordinary impact on our children. Now, there are moments when I delude myself into believing that I am the biggest influence on my children. And, I know that in fact I certainly am an important influence. But, between the media and peer pressure, it isn't being a kid today. It's not easy being a parent either. I, for one, admire Bono for the good work he has done to highlight poverty, hunger and AIDS in Africa. He is also a very talented musician. He's shown himself to be a bright and capable man. So he should know better than to use curse words on national television. I am encouraged to learn that the broadcast networks are adopting a 7 second delay or longer when showing live programming. I also understand that members in the industry are calling for an industry wide effort to design and adopt indecency guidelines for all broadcasters-radio and television. These are two strong steps that industry should and can take. I also want to point out that I believe that the violence on television seems to get a greater "pass" than sexual content. We seem to tolerate violence more than we do sexual content. This really disturbs me. I am very aware that we must tread lightly. The First Amendment's guarantee of freedom of speech is vital to our democracy. People are going to have differing views on many issues. For example, as I said, I object to the violence on televison. And I know that Parents Television Council objects too. I appreciate that PTC has done research to show the rate of violence our children are exposed to. However, Mr. Bozell's other organization, the Media Research Center, has also consistently campaigned against what he says is the media's "attempt to legitimize homosexuality." I disagree 100 percent. I have gay friends. They visit my home and eat at my table with my children. I want my children to know that being gay is ok, if that is what you are. I want them to know that gay and lesbian people hold jobs, pay taxes, and have families too. So I am conscious that there will always be disagreements as to what is appropriate. As is pointed out in Mr. Wertz's testimony that in the 1950's, the cast of "I Love Lucy" could not use the word pregnant-but only words like expecting. I can't imagine there is a person in this room who finds the word pregnant offensive. This just goes to show that our standards our "contemporary community standards" are always changing and we should be loathe to try and set standards for 2040 in 2004. Who knows? In 2040-calling someone a Luddite could be considered very offensive! Mr. Chairman, the guarantee of freedom of speech is a powerful tool for us to use to insure that all views have an opportunity to be expressed. But, it can also mean that people will hear and see things they don't like or agree with or like. It isn't an easy balance. But, then again, Democracy should not be easy. I yield back. Mr. UPTON. Without objection, I recognize the gentleman from Texas for questions, Mr. Green. Mr. GREEN. Mr. Chairman, I understand that a lot of the questions I was going to ask concern about I think we do need to have some guidelines and I think most of us philosophically would like the industry to put it together if we could, and I think, as Congress, maybe to satisfy the Justice Department, we might need to be more active in it; ultimately some type of statute, but again I am glad that that is what the testimony has shown, and again, from what I understand, the questions from both my Republican and Democratic colleagues, so I look forward to moving along and seeing how we can deal with some of the issues not only on this legislation but also on the major issue of obscenity on the airwaves. Thank you. Mr. UPTON. Thank you. I want to reiterate my thanks to you as well for being a cosponsor of the legislation, so with that our time is concluded. I appreciate very much the testimony by all four of you. We look forward to your further input for sure as we look at this legislative process. God bless. [Whereupon, at 1:27 p.m., the subcommittee was adjourned.] [Additional material submitted for the record follows:] PREPARED STATEMENT OF FRANK WRIGHT, PRESIDENT, NATIONAL RELIGIOUS BROADCASTERS My name is Frank Wright and I serve as president of the National Religious Broadcasters, the largest association of Christian communicators in the world. My written testimony is supplied on behalf of our more than 1500 member organizations to encourage Congress to affirmatively address the rampant and growing problem of indecent speech on the airwaves. At the outset let me be clear that as the head of an association representing broadcasters, I am keenly aware of the concerns relating to censorship. Since the heart of our members' mission is to share the life-changing Gospel of Jesus Christ, we know that the censorship sword cuts both ways. When any one interest group can determine what is appropriate for the populace at large, the very essence of democracy and freedom in our nation is at risk. Having said that, it is important to note that our First Amendment rights to free speech have never been absolute. One cannot, for example, shout "Fire!" in a crowded theater because of the potential risk of injury or loss of life from an ensuing panic. One cannot commit treason by communicating important national security information to hostile nations and afterward claim First Amendment freedoms. Neither can one commit libel or slander and justify such damaging communications by claiming constitutional protection. Regarding matters of indecency, the United States Supreme Court has also carved out an exception to First Amendment concerns because of the very real threat to the welfare of our nation's children. For this reason, while we must tread very lightly on this subject, there are certain standards respecting what children should not have to hear that we as an entire people hold in common, and which the United States Supreme Court has affirmed as constitutional. It is in this light that I submit my testimony to the subcommittee. I. BACKGROUND: INDECENCY DEFINED. Congress gave the FCC the authority to police the airwaves and uphold community standards. According to Title 18, Section 1464, of the United States Code, "any obscene, indecent or profane language" is prohibited for mass communication via radio. Also, Title 47, Section 73.3999, of the Code of Federal Regulations states, "no licensee of a radio or television broadcast station shall broadcast on any day between 6 a.m. and 10 p.m. any material which is indecent." 2 In 1975, the FCC found that "obnoxious, gutter language... [has] no place on radio when children are in the audience."3 The Commission went on to define indecency as 118 U.S.C. § 1464. 247 C.F.R. § 73.3999. 3 In the Matter of a Citizen's Complaint against Pacifica Foundation, 32 RR 2d 1331, 1336, ¶11 (1975). "... intimately connected with the exposure of children to language that describes [or depicts], in terms patently offensive [sic] as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience." "4 Unfortunately, after establishing an important and helpful standard and making a commitment to protect the welfare of innocent children, the FCC almost immediately began to back away from its own standard. In 1976, one year later, the Commission began backpedaling from its own standard to cater to broadcasters, stating it would be "inequitable for us to hold a licensee responsible for indecent language" during live broadcasts.5 Since that time, the FCC has eroded its own standard by adding yet more criteria to test whether broadcasts cross the threshold of indecency: “(1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value." (emphasis in original) By making the definition of indecency sound more like obscenity, the Commission has set the indecency bar unnecessarily high, making infractions more difficult to prove and thus more difficult to punish. II. INDECENCY COARSENS SOCIETY AND TEACHES CHILDREN THAT MORALITY IS Indecency standards are worth enforcing because publicly broadcasting such words when there are children likely in the audience dramatically coarsens our society. Permitting indecent speech on the airwaves teaches children that there are no limits on improper speech. It desensitizes the culture to what is detrimental and unacceptable. As a result, we have confused children, told they cannot say certain words at school and other places, only to hear them repeated on the radio or television. When families cannot sit down to watch a program together during the so-called "Family Hour" without hearing indecencies, we know there is a problem with our broadcasting standards. If the FCC were serious about enforcing those standards, then we wouldn't have such a problem. Some have even suggested that the continual drone of profanity on our airwaves can also lead to a reduction of civility in society, leading to violence and the loss of moral values. As newspapers daily document our culture's violent crimes and lack of morality, we can see that there is at least a correlation between indecent speech and incivility. C.S. Lewis, the Christian philosopher, stated that profanity is degrading to us as people because it describes our actions in animalistic terms. Our culture's ideals should be encapsulated in our art (e.g., film, radio, TV, Internet, etc.); our art ought not reduce us to less than we are. Part of childrearing involves teaching children what is acceptable and what is not. If we cannot consistently teach them what they should or should not say, then how will we teach them what they should or should not do? III. THE FCC ALREADY HAS A CONSTITUTIONAL STANDARD FOR DETERMINING INDECENT SPEECH. On October 30, 1973, a New York radio station owned by Pacifica Foundation broadcast comedian George Carlin's previously recorded monologue "Filthy Words" at approximately 2:00 p.m. A father and his young son heard the broadcast and filed a complaint. On February 21, 1975, the FCC ruled administrative sanctions could be imposed on Pacifica. On July 3, 1978, the United States Supreme Court upheld the FCC, in part, because of the nature of the medium involved. First, the Court found in FCC v. Pacifica Foundation that broadcasting has “a uniquely pervasive presence" in modern-day life. Since it found Americans have a right to privacy within their own homes, the content of the broadcast medium ought 4 In the Matter of Pacifica Foundation, 32 RR 2d at 1336, ¶ 11. 5 Memorandum Opinion and Order, In the Matter of a Petition for Clarification or Reconsideration of Pacifica Foundation, 36 RR 2d 1008 (1976). "See Policy Statement, In the Matter of Industry Guidance on the Commission's Case Law Interpreting §1465 and Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd 7999 (2001). 7 Parents Television Council, "The Blue Tube: Foul Language on Prime Time Network TV,” (September 15, 2003), http://www.parentstv.org/PTC/publications/reports/stateindustrylanguage/ main.asp. to be controlled, in spite of the potential for First Amendment concerns. If someone were to miss content warnings at the beginning of a program, he or she could unwittingly tune in and hear something they would ordinarily not have willingly brought into their home.8 Second, the Court determined that broadcast medium is “uniquely accessible to children, even those too young to read." Since children might easily hear indecency on the airwaves during the afternoon (and a young boy did in the instance of the Pacifica case), the Court took special notice.9 Since the FCC's 1975 policy was declared constitutional, the Commission ought to state emphatically in its rulings that Americans have a right to be free from indecency in their homes, when children may be in the audience. IV. THE FCC'S RETREAT FROM ITS OWN STANDARD TELLS BROADCASTERS THAT THEY CAN SAY ANYTHING ON THE AIR. Since the FCC has not consistently followed its own policy, broadcasters will continue to push the envelope to boost ratings. This has prompted FCC Commissioner Michael Copps to frequently describe broadcasters' actions as a "race to the bottom." 10 In just four years, from 1998 to 2002, profanity increased on nearly all television networks during essentially all of the prime time viewing hours. During the Family Hour, incidents of indecent and obscene speech rose by 94.8%, and in the 9:00 p.m. time slot by 109.1%. Interestingly, the 10:00 p.m. hour, when small children would be least likely to watch, reported the smallest increase in foul language,'' possibly because that timeslot's standards had already fallen so low. Within the past two years, the New York radio program "Opie & Anthony" broadcasted reports describing sexual acts performed in or near St. Patrick's Cathedral. In January 2003, NBC affiliates broadcast the f-word unbleeped during the Family Hour. Then just in December, the f-word aired again during a live prime time awards broadcast. Unless the FCC resolutely pursues indecency and levies punishments to discourage it, broadcasters will feel emboldened to slide even further into the gutter. The current fine structure, levied by the FCC, is treated simply as a cost of doing business. The fines are not viewed as punitive actions, but merely as indecency-licensing fees. FCC Commissioner Copps has frequently dissented from FCC disciplinary rulings involving monetary forfeitures by saying that they do not go far enough. He has recommended holding hearings on revoking licenses from broadcasters for consistent and egregious violations. 12 There is no standing still. The current level of indecency on the airwaves will not stay the same but will increase, absent consistent enforcement by the FCC. V. THE FCC MUST RETURN TO TOUGHER STANDARDS AND ASSERT ITS ROLE AS In order to prevent the downward slide in what is acceptable over the airwaves, the FCC must return to the standard it established-the Pacifica standard. By so doing, it can take its rightful place as the defender of the public interest. Commissioner Copps has repeatedly lamented that the agency has done little to counteract indecency on radio and television.13 I am encouraged that numerous Members of Congress over the past few months have condemned the FCC's ruling on last year's NBC Family Hour broadcast of the Golden Globe Awards program, 8 FCC v. Pacifica Foundation, 438 U.S. 726 (1978). 9 Ibid. 10 See Separate Statement of Michael J. Copps, Dissenting, In the Matter of Infinity Broadcasting Operations Inc., Licensee of Station WKRK-FM, Detroit, Michigan, Notice of Apparent Liability for Forfeiture, File No. EB-02-IH-0109, (December 8, 2003), http://hraunfoss.fcc.gov/ edocs_public/attachmatch/FCC-03-302A5.html. See Separate Statement of Michael J. Copps, Dissenting, In the Matter of Infinity Broadcasting Operations, Inc.; Infinity Radio Operations, Inc.; Infinity Radio Subsidiary Operations, Inc.; Infinity Broadcasting Corporation of Dallas; Infinity Broadcasting Corporation of Washington, D.C.; Infinity Holdings Corporation of Orlando; Hemisphere Broadcasting Corporation, Notice of Apparent Violation for Forfeiture, EB-02-IH0685, (October 2, 2003), http://www.fcc.gov/eb/Orders/2003/FCC-03-234Á1.html. 11 Parents Television Council, "The Blue Tube." 12 See Copps Dissenting Statement, Re: Infinity Broadcasting Operations, Inc., Notice of Apparent Liability for Forfeiture, File No. EB-02-IH-0109, (December 8, 2003), http://hraunfoss.fcc.gov/ edocs public/attachmatch/FCC-03-302A5.html. 13 Ibid. in which musician Bono used the f-word twice on national television. 14 Last December, NRB worked with the other chamber to write language for S. Res. 283, which was adopted by the full Senate on December 9th. That Sense of the Senate Resolution called on the FCC to "return to vigorously and expeditiously enforcing its own United States Supreme Court-approved standard for indecency in broadcast media.” Last week, it appears that FCC Chairman Michael Powell bowed to congressional pressure, and public outcry, when he abruptly changed course and recommended that the FCC commissioners reverse the agency's Enforcement Bureau's Golden Globe decision. 15 He also called on Congress to increase fines tenfold for future indecency violations. 16 In quick response, the Chairman of this subcommittee, Representative Fred Upton, introduced H.R. 3717, the Broadcast Decency Enforcement Act of 2004, to codify that increase. Increasing fines is a critical first step. Yet we also submit that the airwaves will not ultimately be transformed until the FCC changes the way it thinks about enforcement. The Commission should increase fines and return to the Pacifica standard if the airwaves are to meet a higher content standard and protect our children. In 1975 when the Commission took the stand, it didn't know for certain that the Court would uphold Pacifica. When it did, the high court gave the FCC a firm place to stand. Since then, by the FCC's own admission, "The federal courts consistently have upheld Congress' authority to regulate the broadcast of indecent speech, as well as the Commission's interpretation and implementation of the governing statute." 17 So let us do both. The FCC appears reluctant to assert their authority, not wanting to take any action until prompted by Congress. If that is what it takes, then so be it. In the words of Commissioner Copps, "[t]he time has come for us to send a message that we are serious about enforcing the indecency laws of our country and that we will be especially vigilant about the actions of repeat offenders." 18 What is needed here more than any other single thing is bold leadership. That is why we applaud Representative Upton for the important first-step of introducing legislation to increase fines, and for holding this hearing to draw attention to this critical issue. We also applaud the actions of other subcommittee members, like Representative Pickering, who has introduced a House resolution that is very similar to the one passed by the Senate. Overall, there is a sense of agreement in both houses on this issue: indecency on the airwaves is unacceptable. The time is right to hold the FCC to a higher standard of enforcement. The over 1500 organizations represented by the National Religious Broadcasters thank Representative Upton for holding this hearing, and we encourage the subcommittee to look into this matter further and exert the kind of bold leadership needed at this critical juncture. If the FCC will not willingly enforce their own constitutionally-approved indecency standard, then perhaps Congress needs to statutorily require them to do so. Mr. ALEX WALLAU President ABC Television Network 47 West 66th Street U.S. HOUSE OF REPRESENTATIVES COMMITTEE ON ENERGY AND COMMERCE January 27, 2004 New York, New York 10023 DEAR MR. WALLAU: As you may be aware, during recent live broadcasts on the NBC and FOX television networks, use of language that most Americans would consider indecent, profane, or both was broadcast unedited to millions of American 14 Larry Wheeler, "Congressman joins attack on agency's f-word ruling," Gannett News Service, November 27, 2003; Associated Press, "Bill would ban some swear words from radio, TV,” December 16, 2003. 15 Jonathan D. Salant, "FCC Chairman wants to overturn decision on expletive aired in NBC broadcast," Associated Press, January 14, 2004. 16 Jonathan D. Salant, "FCC head wants bigger fines for profanity," Associated Press, January 15, 2004. 17 In the Matter of Complaints Against Various Licensees Regarding Their Airing of the "Golden Globe Awards" Program, EB-03-IH-0110, (October 3, 2003), http://www.fcc.gov/eb/Orders/ 2003/DA-03-3045A1.html. 18 See Copps Dissenting Statement Re: Infinity Broadcasting Operations, Inc.; Infinity Radio Operations, Inc; Infinity Radio Subsidiary Operations, Inc.; Infinity Broadcasting Corporation of Dallas; Infinity Broadcasting Corporation of Washington, D.C.; Infinity Holdings Corporation of Orlando; Hemisphere Broadcasting Corporation, Notice of Apparent Violation for Forfeiture, EB02-IH-0685 (October 2, 2003), http://www.fcc.gov/eb/Orders/2003/FCC-03-234A1.html. |