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“CAN YOU SAY THAT ON TV?”: AN EXAMINA

TION OF THE FCC'S ENFORCEMENT WITH RESPECT TO BROADCAST INDECENCY

WEDNESDAY, JANUARY 28, 2004

HOUSE OF REPRESENTATIVES,
COMMITTEE ON ENERGY AND COMMERCE,
SUBCOMMITTEE ON TELECOMMUNICATIONS

AND THE INTERNET,

Washington, DC. The subcommittee met, pursuant to notice, at 10:40 a.m., in room 2123, Rayburn House Office Building, Hon. Fred Upton (chairman) presiding.

Members present: Representatives Upton, Bilirakis, Barton, Gillmor, Deal, Whitfield, Shimkus, Wilson, Pickering, Bass, Walden, Terry, Tauzin (ex officio), Markey, Rush, McCarthy, Davis, Stupak, Engel, Wynn, Green, and Dingell (ex officio).

Also present: Representatives Pitts, Issa, Gonzalez, and Osborne.

Staff present: Kelly Zerzan, majority counsel; Will Nordwind, majority counsel and policy coordinator; Neil Fried, majority counsel; William Carty, legislative clerk; Gregg Rothschild, minority counsel; Peter Filon, minority counsel; and Ashley Groesbeck, staff assistant.

Mr. UPTON. Good morning, everyone.

To start, I would like to just say that we have three Members that are not on the subcommittee that would like to sit in. I am going to ask unanimous consent that they are allowed to sit at the dais and be able to ask questions at the end, following the members of the subcommittee. They would include Mr. Gonzalez, Mr. Pitts and Mr. Osborne.

Without objection, that will be ordered.

Good morning again. Today we will be examining the FCC's enforcement of broadcast indecency laws. This hearing is about protecting children from indecency over the public airwaves or, in other words, broadcast TV and radio.

This has nothing to do with the issue of censorship and the case of Lenny Bruce at the Cafe A-Go-Go, as some critics have highlighted. That case is simply irrelevant in today's debate. Nor does this have anything to do with things outside the scope of the public airwaves. In fact, the courts have upheld the constitutionality of our broadcast indecency laws, although they have limited the FCC's enforcement to only that content which is aired between the hours of 6 a.m. to 10 p.m., when children are most likely to be listening or viewing.

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As a parent of two young children, I believe that America's families should be able to rely on the fact that at times when their kids are likely to be tuning in broadcast TV and radio programming will be free of_indecency, obscenity and profanity; and Congress has given the FCC the responsibility to help protect American families in that regard.

I have received hundreds of constituent letters expressing astonishment and outrage over how the FCC's enforcement bureau could have found Bono's use of the “F-word” on TV not indecent in the Golden Globes case. I find the use of the “F-word" on TV to be highly objectionable, and I have called on the full Commission to reverse that decision, and reportedly Chairman Powell and the other commissioners are seeking to do just that.

However, I think that the outpouring of constituent mail regarding the Golden Globe case is symptomatic of a larger feeling amongst many Americans that some TV broadcasters are engaged in a race to the bottom, pushing the decency envelope in order to distinguish themselves in the increasingly crowded entertainment field. Why is it that there have been so few indecency actions against TV broadcasters? Is it a lack of FCC enforcement or is it something else?

My plea to broadcasters is that, regardless of how the law is settled in the Golden Globes case or the FCC's enforcement action, as stewards of the public airwaves you indeed have a responsibility to keep the “F-word" and other similar words off of our airwaves. Although it may be your right to say or do something on TV or radio, it does not make it the right thing to do.

I call on all of the networks and broadcasters to take to heart what we are discussing here today and to review their codes of conduct and, in the case of live broadcast, review their time-delay procedures and redouble their efforts to make sure that they work. The American people are paying attention, believe me, and they want action.

But this hearing is also about broadcast radio. Yesterday, as I flew back through the ice and snow from Michigan, I sat on the airplane and reviewed my briefing material for today's hearings. In that material there were notices of apparent liability issued by the FCC in but a few of its radio broadcast indecency cases.

Of course, each case had a transcript of the content that was at issue. Ladies and gentlemen, public decorum in this committee room precludes me from reading those transcripts out loud today. But what I will say is that what I read was disgusting, vile and has no place on our public airwaves. Simply put, it was awful.

These cases included descriptions of people having sex in St. Patrick's Cathedral, lewd scenes of a daughter having oral sex with her father, and the case in which a radio host interviewed high school girls about their sexual activities with crude sound effects to match. Sadly, I can go on and on.

I am not a lawyer. But I would hope that it would be beyond dispute, even to legal scholars, that such content is indecent under the law and does not belong on our public airwaves, particularly at times when kids are likely to be viewing or listening.

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