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Hearing of the Subcomm. on Telecommunications and the Internet of the House Comm. on Energy and Commerce-The Broadcast Decency Enforcement Act of 2004

Location: Washington, DC

Federal News Service February 11, 2004 Wednesday









REP. FRED UPTON (R-MI): Good morning, everyone.

I know on our side of the aisle we have a mandatory Republican conference and I think I saw everybody, at least so far here, check in. So, they didn't check us when we left, so that was a-other members I know that will be here. Today we're going to be examining a bill that I've introduced along with Mr. Markey, Mr. Tauzin and Mr. Dingell to greatly strengthen the FCC's enforcement of broadcast indecency laws.

Let met start by saying what, in my view, today's hearing is about and what it is not about. Mainly what today is, is about listening and responding to the American people's concern and understandable clamor for decency. Well before the Super Bowl episode, many Americans were fed up with all the too frequent flouting of common decency over our public airways. As a member representing a Midwestern district that typifies the heart and soul of this country, I have been swamped with thousands of letters and e-mails from folks downright desperate and frustrated that the government has not adequately used its authority to reign in broadcast indecency.

In one letter a frustrated mom wrote, "I'm a single mom trying to raise a daughter and I cannot believe that it is nearly impossible for us to watch TV, even sporting events, or listen to most radio stations either without being exposed to indecent material," end quote. As I said at our hearing two weeks ago, I believe that some TV broadcasters are engaged in a race to the bottom, pushing the decency envelope in order to distinguish themselves in an increasingly crowded entertainment field.

Today we'll consider H.R. 3717, a bill to increase the penalties which the FCC can impose by tenfold. It's a tough bill which if enacted would help clean up our airwaves. Even the mere introduction of this bill is already forcing broadcasters to be more responsible. The marketplace is reacting to the threat of increased fines and stepped up FCC enforcement.

In the February 5 edition of the Washington Post, Academy Awards executive director Bruce Davis stated, "Part of what they're worried about is that bill in Congress." He didn't say the Upton bill, but that bill in Congress, "that would increase the financial penalties tenfold. They're terrified of this I can imagine the kind of pressure the network is feeling. And it's all very well for us to take a noble First Amendment approach, but if this bill is passed and run through by February 29th, the date of the Oscars, we might be exposing them to some horrendous amounts of money. We have to recognize that," end quote.

In addition to the Academy Awards adopting a five second delay, the Grammy Awards this past weekend was broadcast with a five minute delay. We've seen similar changes in the behavior with other broadcasters. I believe increased fines will push the marketplace to impose live broadcast delays, and promote more exacting corporate discussions about what is inappropriate for TV and radio.

We'll likely see contracts between the broadcasters and on air talent, whereby the talent will be required to pay any fines which might be imposed on the broadcasters as a result of the talent's indecency. And I suspect that such contracts could make Janet Jackson and Justin Timberlake think twice before rolling the dice and taking the hit in their own wallet. The same goes for the shock jocks, who brought us such dubious hits as Sex in St Patrick's Cathedral and depictions of daughters performing oral sex on their dads.

And while I believe H.R. 3717 is a strong bill which is already having an effect, I'm interested in working with members on both sides of the aisle to improve the bill in a responsible way. We need to look at the level of the fines. We need to look at beefing up the license renewal procedures to ensure that indecency violations are factored in by the FCC. And as I've suggested before, perhaps we're at a point where we need to drop the hammer of three strikes and you're off, off the air.

Today's hearing is not about anything to do with TV or radio outside the scope of the public airwaves. Our bill applies to broadcast TV and radio. However, I would hope that all companies, cable or otherwise, satellite, would adhere to a voluntary code of conduct for programming during the hours that children are most likely to be watching. And as a parent, I would also add that we need to continue to actively monitor what our kids are exposed to on both TV and radio.

This hearing is not about making a government entity the nanny of America's kids. I know that the ultimate responsibility for instilling character, commonsense values in my kids rests within the four walls of our house. It's just that regrettably the current race to the bottom in the entertainment industry has made it an all but impossible task for parents. They 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.

We're here today to help ensure that the Congress take responsible and constitutionally sound steps in doing our part to help the FCC make sure that the public airwaves are cleaned up through the strengthening enforcement of indecency laws which have been on the books for decades. I would also like to announce that we are going to be polling members on both sides of the aisle to see as to whether or not we'll have the right-appropriate number of members here to have a subcommittee markup tomorrow morning. I think we have an agreement with the minority to only offer and withdraw amendments and at the request of Ranking Member Dingell, I have agreed to hold an additional hearing before we get to full committee markup, after the President's Day recess. We will be inviting a number of witnesses to appear again.

I appreciate the bipartisan cooperation of my colleagues and I recognize my good friend, the ranking member of the subcommittee, the gentleman from Massachusetts, Mr. Markey.

REP. EDWARD J. MARKEY (D-MA): Thank you, Mr. Chairman, very much, and I thank you for holding this hearing today.

The legislation which you and I introduced has now drawn obviously considerable attention across the country and the co- sponsorship of so many of the members on this committee obviously is having a real impact in terms of the discussion which is taking place in the country. This hearing is going to make it possible for us to gain the testimony on the legislation which we have introduced. And it will also allow us to make some early determinations as to just where the level of fines should be, for violations of the law.

The public's airwaves are licensed to a relatively precious few who have the honor, the opportunity and the obligation to use them as trustees of the public interest. There are those licensees, however, who are not treating these licenses as a public trust, but as a mere corporate commodity and they air content replete with raunchy language, graphic violence and indecent fare. The Federal Communications Commission is charged with ensuring that licensees serve the public interest, and its stations do not air obscene, indecent or profane content in violation of the law and the commission rules.

The enforcement record of the Federal Communications Commission is not encouraging. In 2002 there were 14,000 complaints about some 389 different programs, yet the Federal Communications Commission issued only seven notices of apparent liability that year. Last year complaints skyrocketed to 240,000 for allegations about 375 different programs, yet last year the commission issued only three notices of apparent liability. And we heard testimony at our first hearing that thousands of complaints are never addressed, are languished to the point where essentially the Statute of Limitations has run out.

The Federal Communications Commission has many numerous tools to enforce these important policy requirements, including the ability to revoke a station license. Yet it is increasingly clear that the paltry fines the FCC assesses have become nothing more than a joke. They have become simply a cost of doing business for far too many licensees, particularly in the radio marketplace. Many stations regard the prospect of a fine as merely a potential slap on the wrist. Washing their mouths out with soap would have a greater deterrent effect than the few and the paltry fines that the Federal Communications Commission currently levies. ] The FCC's utter unwillingness to revoke licenses or to raise these issues during license renewal essentially means there's no real deterrent effect left. This is especially true of the multi-billion dollar media conglomerates who control a multitude of stations. What possible deterrent effects can $27,000 have on a company which reaps in $27 billion in annual revenues? We need to have a public discussion about the FCC's failure to use its enforcement and deterrent tools effectively, even in the most egregious cases, and what the FCC plans to do about this issue. Clearly, Congress will have to address these shortcomings at the FCC.

Second, we need to do a better job in educating parents about the tools they already may possess, can utilize to address the myriad concerns they raise with us about what is on TV and radio, and need the assistance of the industry in this area. Parents can use the TV rating system and the V-Chip which stems from legislation that I authored seven years ago. Today, the several million families that use the V-Chip like it, yet the vast majority of parents will only use it if they fully understand the rating system and how it works in conjunction with the chip and only if parents have bought a recent TV that has the chip in it.

The industry did a good job with much fanfare after the TV ratings system was finalized in doing public service announcements and other educational messages regarding the ratings. Yet those efforts have waned significantly in recent years. I believe that the industry should renew such efforts and also consider a number of other ideas. For instance, I believe that the icon that appears at the beginning of a show, such as TV 13, with a V and S or an L for violence, sex or language, should appear after each commercial break, that way channel surfers who land on that show during commercials will get a warning as the show resumes.

I also believe the industry should consider adding a voiceover when the ratings appear. If dad or mom is in the kitchen, out of the room or distracted reading a newspaper, they may not see the icon when it appears. A voiceover would help parents hear the rating as the show begins and prompt them to change the channel and protect their children from inappropriate programming. With respect to cable programming, we need to explore ways in which we can educate parents and make more useful the provisions of the Cable Act of 1992, that permit any cable subscriber to request a blocking mechanism to block out any cable channel parents find objectionable.

If a family buys the expanded tier of basic cable service, but does not want MTV in their house, they can request equipment from their cable operator that effectively blocks out MTV. This is an option that many subscribers do not know they have and we have to ensure that all avenues are explored to improve the effectiveness of this provision so that the millions of parents who may want cable in their house, but not some of these offensive channels, can, in fact, just disconnect those offensive channels. Clearly many broadcasters need to clean up their act. Parents are increasingly frustrated and have every right to be angry at both certain licensees with a history of repeated violations as well as with the Federal Communications Commission itself.

I thank you, Mr. Chairman, for this timely hearing, I think it really is an important discussion the American people want us to have.


REP. MARY BONO (R-CA): Thank you, Mr. Chairman. I'd like to thank our panelists for being here this long. I look forward to your testimony. I was not going to make an opening statement because I believe we're all in unison here in speaking with the outrage. I believe we are outraged and I believe my constituents are entirely outraged. But as I sit here I have so many questions and I definitely have to identify myself with the comments that were made by Congressman Dingell, and that is that the penalties have to be a deterrent to what we are seeing and what has happened.

Hollywood has long been about-and the success of Hollywood has long been about us pushing ourselves and pushing the envelope or pushing the limit. I was married to an entertainer and I have a family, an extended family, that is still in this business and we know that this is about pushing the envelope. The American people have finally said, enough. You've pushed it too far. And the truth is the bottom line, corporate profit, is what this is about at the end of the day. Janet Jackson, as I understand, came out with a new album. Well, surprise, surprise. And here we are in Congress talking about this stupid stunt that she pulled, which appalls me even further because it plays right in to what she was doing.

But it goes down to the great song by-and Mr. Markey can sing it for me, but by the group Traffic: "The man in the suit has just bought a new car off the profit he's made off of your dreams." And that's what this is about. There are thousands of talented, qualified artists who could have been out there and you all knew, as I understand, MTV was promoting something spectacular would happen at halftime and I look forward to delving into this a little bit further during the question and answer period.

But that's the truth and the truth is that there is outrage and Congress is going to stand up. We've been here in unison today and said enough is enough. Mr. Chairman, I applaud you for your timely legislation and the way in which you're moving it, and I look forward to working with you and I yield back the balance of my time. Thank you.


REP. BONO: Thank you, Mr. Chairman.

And thank you, both gentlemen for staying so long. I don't believe it's as simple as my colleague just stated. I think at the end of the day you also report to a whole bunch of people, shareholders or whomever, and so I don't believe it's that simple. And I want to complement you for what you did do with the Grammy's. It worked. Is it that simple? It was beautiful. Even what you did with Christina Aguilera, where you raised the camera, it was obvious you did that and I thank you for doing that. I was watching it with my daughter and I thank you. Isn't it that simple five second delay, for these sorts of circumstances, didn't that kind of solve our problem also?

MR. KARMAZIN: I thought it did, I just want to hopefully make sure that someone's not trying to work out the next thing out there and that we have the flexibility. We used to think that having an audio delay, for someone who's going to say the "F" word, or somebody was going to do that, was the only thing we had to worry about. Now, we found out that we were wrong, you know, very wrong at the Super Bowl, you know. So we've now taken a step. Hopefully we can be confident that, you know, that neither audio nor video inappropriate programming gets on the air, I hope that's the case.

REP. BONO: And I also recognize the fact of what you said, that happened with the streaker, that we did not see that, and I thank you. That is an important example to point out and understand the difficulties here that you're faced with. I think this is a little bit too late and that's why we're here in Congress, visiting this issue. But I have-you know, these are not really congressional issues, or questions or legislative answers, but how much in the ballpark, I had read that the Super Bowl, the acts were paid seven figures. Is that true? This particular Super Bowl, were they paid acts?

MR. KARMAZIN: I don't think so. I have nothing to do with that part of it. I know that MTV which produced it, did not make any money. It was done by the way for MTV --

REP. BONO: No, the question was simply were the artists paid? And-because I don't quite buy your argument you presented a long, long time ago that these go contracts go unsigned. I find that so impossible to believe that you could present that in the circumstance that there would be perhaps over $1 million contract that's not signed.

MR. KARMAZIN: The classic-and, again, I'm not involved in the production. You know, it was really done by-I think AOL contributes to the NFL for the payment of the halftime show, and I think that money-it's used to produce the halftime show. I don't believe anybody gets paid. I believe that they get expenses to cover stuff, but I don't believe anybody made money. But I don't really --

REP. BONO: So the real-the compensation, or compensations, is in the exposure, pun intended I guess, and the fact that Monday mornings you can wake up and be-I think she's-meaning Janet Jackson, was on the front page, not the quarterback of the winning team, and I sympathize with the NFL and I sympathize with the team owner because I think that was very outrageous. But nonetheless she got what she wanted and we're talking about her, like I say. So when you said-you gave a nice apology, both of you did, but I think people are apologizing all the way to the bank.

MR. KARMAZIN: Beyond-if there were so many-if you go through our-you know, so many performers at the pre-game show, at the halftime show that contributed there. I don't believe, you know-and over the years, by the way. So this is, you know, the first time that this has occurred at the Super Bowl. I don't believe people are booking themselves or trying to get onto the Super Bowl because they want to be on the papers on Monday.

REP. BONO: Really? I'm sorry, I don't believe that these acts-well, maybe Justin Timberlake. But I don't know that she was in the Top 5 certainly that week. I don't believe she was-and to tell you the truth, and this is just a comment as a parent, I was watching this thinking, this is so wonderful-and this is going to be an off the wall comment. It was so wonderful that here's Ms. Jackson proving all of the talent she has and she's a true artist and true performer, and that none of her brother's negative publicity is affecting her. And that argument certainly was shot. I don't know. It was proven wrong. And that's the truth of the matter here as well.

So I thank you for your apology. I thank you for the five second delay with the Grammies, and I actually would like to hear briefly if you have specific comments about the specific legislation that is in front of us and if you've read it and if you are supportive. I know you have said the FCC ought to be more involved and do the rulemaking?

MR. KARMAZIN: I thought that the language on increasing the fines could be a deterrent. I think it is possible. I think it needs to have some flexibility, and again maybe somebody who was a victim of something, you know-again, you can leave it to the FCC to decide-should be treated differently than someone who does something blatant. So the point that I would make would be that I would give the people who are enforcing these increased fines flexibility to decide whether or not 275 is right or maybe 150 is right or maybe a lower fine is right, based on their compliance.

You know, I mean one of the worse things that somebody could ever do is to lie to the FCC, you know? I mean, that is the death penalty and, you know, the idea is that when the FCC is investigating these things, you know, that the sense is that you want broadcasters to come forward, admit what they've done wrong, and I just think that if there could be some flexibility on the commission's part-not the licensee's part, not the party-to decide what the-you know, there's a sentencing guideline. You know, judges have a sentencing guideline and you might want to have a sentencing guideline that gives the commission some flexibility. But I think the fine could be a deterrent.

REP. BONO: Mr. Chairman, I know I'm over my time. I just want to-I believe that we've had some great testimony that will be very helpful as we go forward, and I hope the gentlemen appreciate their comments themselves as we move forward in the future. Thank you.


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