Hearing of the Telecommunications and the Internet Subcommittee - H.R. 3717:The Broadcast Decency Enforcement Act

Federal News Service February 26, 2004 Thursday

HEADLINE: HEARING OF THE TELECOMMUNICATIONS AND THE INTERNET SUBCOMMITTEE OF THE HOUSE ENERGY AND COMMERCE COMMITTEE

SUBJECT: H.R. 3717: THE BROADCAST DECENCY ENFORCEMENT ACT OF 2004

CHAIRED BY: REPRESENTATIVE FRED UPTON (R-MI)

LOCATION: 2123 RAYBURN HOUSE OFFICE BUILDING, WASHINGTON, D.C.

WITNESSES: ALEX WALLAU, PRESIDENT, ABC TELEVISION NETWORK;

GAIL BERMAN, PRESIDENT OF ENTERTAINMENT, FOX BROADCASTING COMPANY;

DR. ALAN WURTZEL, PH.D., PRESIDENT, RESEARCH AND MEDIA DEVELOPMENT, NATIONAL BROADCASTING COMPANY;

LOWELL "BUD" PAXSON, CHAIRMAN AND CEO, PAXSON COMMUNICATIONS CORPORATION;

JOHN HOGAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER, CLEAR CHANNEL RADIO;

HARRY J. PAPPAS, CHAIRMAN AND CHIEF EXECUTIVE OFFICER, PAPPAS TELECASTING COMPANIES

BODY:

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REP. UPTON: Mr. Walden.

REP. GREG WALDEN (R-OR): Thank you, Mr. Chairman. I want to thank you for your continued efforts to find a way to clean up the nation's airwaves. Parents need all the help they can get. Now it's clear from the testimony of our witnesses today that the nation's broadcasters and networks are hearing the concerns of our constituents.

I commend you, Mr. Hogan, for dumping Bubba the Love Sponge in the garbage disposal and for suspending Howard Stern's program on Clear Channel stations. Mr. Stern was quoted on the news this morning, as I was listening to a radio station, as saying our hearings are like McCarthyism and that he and his sidekick, quote, "woke up in a different world." Well, you can tell he is wrong on one point and right on another. As a licensee, you and he, on your talent, have already agreed to operate within the rules of the FCC and the laws of this nation. Reminding him of that obligation responsibility is hardly McCarthyism.

We represent a lot of people who are simply sick and tired of the vulgarity. However, many of us hope that indeed it is a different world today. Your testimony and that of others on this panel certainly would have us believe that it is and we welcome that. But it's also clear that, despite our witnesses' pledges to use audio or video delays hold their own employees accountable and provide various training requirements, all of which are laudatory, at least two important issues remain.

One is a lack of clear direction from the FCC. While most of us know what obscenity, indecency and profanity are, when the FCC hands down just a couple of notices of apparent liability a year, there is a lack of clarity for broadcasters and the result is a push to the limit to grab audience share and to compete for that audience against completely unregulated entertainment providers. This is a very competitive industry. While for some the size of the fine is what will get their attention, for most broadcasters, it's probably even more important to get consistent guidance from the commission.

And, Mr. Chairman, I would say our hearings are giving the commission and the broadcasters the guidance both have needed. Networks are digitally delaying higher risk programming. Bubba the Love Sponge is out. Howard Stern in on hold and news standards are in. I commend the networks and broadcasters for responding to our call for action. Second, I believe many viewers do not differentiate between the over-the-air broadcast programming and the programming they get through their cable and satellite systems. They've said before our legislation may clean up the first five or six channels on the family TV but what about the remaining 800.

I recognize these are paid subscriber services. But can anyone deny that these programs do not also have a uniquely pervasive presence in the lives of Americans because they are sent into the privacy of the home and are viewed as uniquely accessible to children even those too young to read. If we're not going to give the FCC the authority to clean up these channels, then the burden to do so is even greater on those providers themselves. Now perhaps technology provides parents with all the tools they need. But should they really have to pay for trash programs they have to block?

And finally, Mr. Chairman, despite our frustrations with broadcasters, we all recognize their important and unique commitment to providing public service to our communities. And we all know they do it quite well and quite often. Most broadcasters agree with the sentiments of this committee and our constituents and welcome the push to improve and clean up programming.

In this highly competitive business we must also keep in mind the broadcasters' only means of staying in business is to sell advertising, whose value is tied directly to audience share. As we affect their ability to program, we must remember they are competing against cable and satellite providers who both charge for their services and sell advertising, and both of whom are unregulated when it comes to content. They produce programming that sometimes is very successful, programs like The Sopranos and Sex In The City, but certainly those programs attract great audience share and are competitive. So while it's important for the nation's broadcasters to clean up the bad apples, it's our responsibility not to overreact to the point that we destroy the viability of free over-the-air broadcasting, which we all so much appreciate. Thank you, Mr. Chairman.

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REP. WALDEN: Thank you, Mr. Chairman. I want to go back to this issue of Howard Stern, and Mr. Hogan, maybe you can tell me. You've taken Howard Stern off of your stations, the Clear Channel stations, but he's still on other stations, correct?

MR. HOGAN: Yes, sir.

REP. WALDEN: Who actually controls Howard Stern's contract? Who does he work for?

MR. HOGAN: Ultimately he works for Viacom. I don't know the-what levels --

REP. WALDEN: Their specific contracts?

MR. HOGAN: -- that get there, but --

REP. WALDEN: So he's a Viacom talent. Would that be a --

MR. HOGAN: Correct.

REP. WALDEN: So we get back to Mel Karmazin, could take the same steps. Do you know, is Howard Stern on CBS stations?

MR. HOGAN: Yes, he is on CBS stations, sir.

REP. WALDEN: Okay, that's something to flag. I want to ask too about affiliate agreements as they affect radio, because I always try and disclose the fact I'm a licensee too, and in the broadcast business. What about affiliate agreements that your company has through the Premier Network? How do you treat affiliates when it comes to some of these issues about previewing programming, and then I want to get to the TV side with the others. Can you speak to that?

MR. HOGAN: We try and treat our affiliates the same way we treat our own radio stations, and that is going to be in keeping with our new initiative. I had communication earlier this morning with the head of Premier to ensure that all of our syndicated hosts are being held to the same level of expectation and responsibility.

REP. WALDEN: I hope others that have affiliate agreements are listening to that, because I think it's an issue that Mr. Green, who has stepped out at the moment, has raised and some of us feel pretty strongly and you hear it here today I think on this committee is, you know, who's really controlling the programming and do you have a-you may have a legal contract that says, you know, I've got the authority to edit. But in practical terms it's nearly impossible in some cases to, you know, see or hear this programming far enough in advance to take an action.

Now, I want to go to the TV networks now. What are your standards in terms of allowing affiliates such as Mr. Pappas to preview network programming? Do you have a written plan that says, we will give all affiliates 24 hours, 36 hours, whatever it is, in advance to-if they request to review a program? Do any of you have those-I don't know if you do.

MR. WURTZEL: We don't have written standards. What we do-I mean, a lot of this is very common sense. I mean, first of all I should say that we encourage feedback from affiliates because, as everybody has mentioned, we live in a very, very diverse country with many, many communities of varying standards so we'd like to hear from them. We do send as a matter of course episodes of programs that we feel may have a concern on the part of some of our affiliates. The fact is we don't pre-feed the entire schedule because it would be just impossible to do that and the affiliates would be overwhelmed.

REP. WALDEN: Okay. Ms. Berman?

MS. BERMAN: We have a similar procedure, Congressman. But I would like to also add that our interaction with our affiliates is daily. It's not just occasionally it occurs to us that we have to interact with our affiliates. Our affiliates make up the body of our network. I am on the phone with the affiliates, I am on the phone with the board of governors on a monthly basis. Our staff is on the phone with our affiliates daily. We provide our affiliates the tools that they need in order to sell the programming that we're offering them.

REP. WALDEN: I understand that, but --

MS. BERMAN: So I want to say all these things because even in the event that they don't see a particular program-because, as Dr. Wurtzel said, the unwieldy nature of that with 182 affiliates and sometimes in fact there is late delivery on a particular program and certainly with realty shows those-that programming arrives later than --

REP. WALDEN: Okay.

MS. BERMAN: -- we even normally had. So I want to make it clear that our interaction is daily.

REP. WALDEN: I appreciate that. I just have less than a minute to go, so --

MR. WALLAU: We have the same situation as Alan and Gail described. It would be a waste of both of our time to feed all of our shows, because the vast majority of our shows do not have an issue. We've pre-fed NYPD Blue for seven years. Affiliates didn't seem to think it was necessary any more, except when there was an episode that was further-more adult than normal. We pre-fed those. We have been pre-feeding for the last year. We started again to pre-feed it. I would just go to the point that was made by Mr. Pappas, as he cited NYPD Blue, and reiterate what I said. We have an affiliate who has not cleared that show for 11 years and it still an affiliate of ours. They did not lose their --

REP. WALDEN: Yeah, okay. I've read your testimony, I've heard that a couple of times, I understand. I'm just-what I'm hearing from this particular affiliate is perhaps if there were some standards network had that said, you know, I call up 24 hours in advance or 36 or whatever it is and have the right to be able to preview a show-I'm not talking about pre-feeding every show --

MR. WALLAU: We have that process.

REP. WALDEN: But what I --

MR. WALLAU: They can --

REP. WALDEN: -- heard --

MR. WALLAU: -- (cross talk) -- the show and preview it.

REP. WALDEN: But what I'm-I guess I'm trying to bridge some communication here. Maybe I'll just give up because I'm out of time. But what I'm hearing is that that right may be so nebulous as to be ineffective. And that it would seem to me that if you had a standard that said any affiliate has the right 24 hours in advance to preview any show, or 36 or whatever is practical, in their agreements, you might solve that. But I'll leave that up to you all to find out. I understand what you're saying, Mr. Wallau. I'm just suggesting that.

Thank you, Mr. Chairman.

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