The penalties in the bill that we have sponsored, you under your leadership, Mr. Chairman, are good. They will be helpful. But they will again, I think, be regarded as little more than the cost of doing business. So I think that, while this is a useful hearing, it is both imperfect and incomplete.

We all know why we are here today. During the last year, 2 of the 4 major networks, NBC and Fox, during live programming broadcast a word beginning with the letter F into millions of American homes. The Federal Communications Commission determined that NBC's broadcast did not violate the agency's rule against broadcasting indecent speech, and the agency has not yet ruled on the Fox broadcast.

The fact that the FCC did not penalize the NBC network is curious at best, and I will discuss that in a minute. But the more pressing issue is how the networks permitted such speech to be aired into American homes. They have adequate mechanisms to address how matters escape into the airwaves and who have appropriate mechanisms for delay and other controls. Apparently, none was used here, and I see no signs of repentance on the part of the network that this was done. Nor do I see any signs of proper custody on the part of the Federal Communications Commission in looking to see that the outrage that is expressed by thousands of Americans is properly addressed.

The primary responsibility to ensure that network television does not contain profanity rests not with the FCC, although they are the ultimate arbiter, but with the networks themselves. The four major networks not only create the programming that a large segment of American viewers, including our children, watch every day, but they are the largest owners of broadcast television stations that profit handsomely from this, and it is good that they should. But this gives them a special responsibility to the citizens who have entrusted them with the public airwaves. They have a public trust which they are permitted to use for private profit. That is the system which has gone on for a long time, and it is perhaps a good one, but it doesn't seem to be working on matters of appropriate and important public concern.

It is certainly upsetting to me when this trust is as blatantly and repeatedly violated as it has been. I am sorry this panel, I note, does not include witnesses from the NBC and Fox, because I think the committee would have liked to have asked them about these broadcasts to again see how this comported with the policy of the broadcasters and to see how and what it is they propose to do to address their responsibilities to see that these networks use the assets which are given them by the taxpayers in a proper way.

I would like to have inquired what procedures or mechanisms were in place to prevent the airing of objectionable language. I would like to have asked what the network has changed in the way of its practices to ensure that families watching live network TV need not worry as to what language will suddenly be thrust into the living rooms for the children of this Nation.

I think the subcommittee would benefit to the answers to these questions. As yet, no network has chosen to appear.

I will note I have written the presidents of the four major networks to ask these and other questions. I have asked them to re

spond in a timely manner. I have asked also, Mr. Chairman, to you at this moment, that the letters be entered into the hearing record and that the record remain open to include the answers to these questions that are posed by these letters.

As the head of the FCC Enforcement Bureau, I note, Mr. Solomon, that your decisions are constrained, as they should be, by legal boundaries, amongst them the Constitution and case law. I am not here to debate your decision in the FCC case as being either right or wrong. You have a solid reputation. I am sure that you can defend your legal reasoning.

The problem, however, is that the decision defies common sense. When an agency acts in this way, it loses credibility. I do not think that the American people will accept that we are powerless either to ensure that the FCC acts or has authority to act in a proper way or that those who hold licenses to use public resource are permitted to snap their fingers under the nose of those who make the networks able to use the airwaves, which are in fact a public trust for private benefit.

Like many members of the committee, I am concerned also about the amount of indecent content of broadcast over radio airwaves. Recent penalties leveled against radio broadcasters have simply been passed off as the cost of doing business and have proven inadequate to deter violators. I am, however, encouraged by yesterday's FCC decision to impose significantly increased penalties on indecent radio broadcasting.

I would like to know whether or not the FCC needs additional authority, however, to indeed increase significantly the levels of the penalties or whether their policies will include the lifting of licenses of licensees who use the airwaves in this fashion without regard to anything other than a modest penalty.

Whether the FCC's decision was motivated by recent public outcry or whether it was in anticipation of today's hearing does not matter, although I do find myself curious about this.

Fear is a useful motivator, and I am pleased with the decision, even though it appears to be less virtue than concern for the possibility of an appearance today. I look forward, by the way, Mr. Chairman, to having them before us so that we can check out this reasoning.

I hope that it signals a heightened seriousness on the part of the agency. I will be watching closely to see that the FCC does not backtrack on its new-found virtue on this issue.

I look forward to your testimony, gentlemen of the witness panel, and particularly I would like to learn more about what the Congress might do, consistent with the first amendment, to curtail the increasing amount of filth that permeates the public airwaves. I thank you, Mr. Chairman.

Mr. UPTON. Thank you, Mr. Dingell.

The gentleman's letters to the broadcasters will be included as part of the record.

I recognize Mr. Bilirakis for an opening statement.

I would remind members that if they waive their opening statements they will get an extra 3 minutes on questions.

Mr. BILIRAKIS. Well, thank you, Mr. Chairman.

There is no question, Mr. Chairman, that indecency is on the rise in network programming; and I commend you and Mr. Markey for the legislation. Certainly it is timely.

I have cosponsored that legislation. But really I ask the question myself, to myself, and that is: Is it enough?

We also know that local broadcast licensees are placed in the position of having potential legal liability for airing network programming that is obscene or indecent; and so, you know, I think we should ask ourselves the questions.

Mr. Dingell has set out a number of questions that we should be asking ourselves: Can we restore the authority? Isn't that really maybe the foundational thing that we should be thinking about here, restoring the authority of the broadcast licensee to keep indecent material off of the airwaves?

If we are going to let the FCC fine a local licensee for airing indecent content, shouldn't we make sure that he has the ability to refrain from airing it?

Now I want to go to the Communications Act of 1934 as amended, which was intended to control the content that is disseminated to our viewers. That right which Congress delegated to local broadcasters in order to ensure their ability to program in a manner reflective of the tastes and mores of diverse local, underlined, local communities has eroded.

We don't have the networks here today to answer questions but I understand that there will be additional hearings. But the rightto-reject rule has eroded over time as networks, as I understand it, have deployed their vast bargaining power with their affiliates to require them to relinquish by contract-to relinquish by contract the very rights that Congress established by that 1934 statute and any amendments thereto.

So, you know, our network oligopolies today routinely are holding these rights hostage through the use of contractual provisions that explicitly threaten termination of the affiliation as a consequence of unauthorized preemption. I mean, we should have broadcasters here who are faced with that. We should have networks here who are faced with that. I think that is really foundational.

Because no matter what we maybe do here regarding particular language or particular pieces of particular words, if you will, there is always going to be something coming up, and we feel very strongly that we should go back to that concept originated in the 1930's to basically give the broadcasters, the local broadcasters the right to determine what should be the content insofar as their local communities are concerned.

What may fly in one particular area of the country is certainly not something that is going to fly equally in another part of the country. And should we basically feel that executives, network executives in New York and in Hollywood, et cetera, et cetera, have the right to determine what should be broadcast in Clearwater, Florida, my community, or your community in Michigan, or whatever the case may be? I honestly feel that that is foundational, and I would feel that we are not addressing this adequately if we don't also address that particular foundational-in my opinion-problem. Thank you very much.

Mr. UPTON. Thank you, Mr. Bilirakis.

Recognize the gentleman from the great State of Michigan, Mr. Stupak.

Mr. STUPAK. Thank you, Mr. Chairman; and thanks for holding this hearing. I want to thank the witnesses for being here today. This issue has struck a cord in my district since last year's Golden Globe awards. I have received more than 600 letters and e-mails from constituents demanding that something be done to control the graphic language used on television and radio programming. And I agree. How we do that and protect first amendment rights is the tricky part. Do we simply increase the fines on broadcasters? Do we try to better define what indecency is? Do we actually outright ban certain words from being broadcast at certain hours?

I am not sure, and I don't know if there is a perfect fix to this issue. I do know one thing, broadcasters and programmers can make this a lot easier on themselves. They have the privilege to use public airwaves; and with that privilege comes responsibility, including the obligation to air appropriate programming, especially when young people are likely to be in the audience.

So, again, this issue needs to be addressed. Television and radio has crossed the line too many times to ignore.

However, I believe there are other first amendment issues we also need to look into. Last year, Congress made its will known that a recently issued FCC ruling on media ownership went too far, and we pushed it back. I was disappointed to see in the final omnibus appropriation bill behind closed doors the will of Congress was defied as the administration pushed to loosen the media ownership rules. More limited ownership means less differing of opinions, a limitation on our first amendment rights.

I also believe we need to take a look at selective censorship by our television networks. For example, I saw today in the New York Times that CBS is refusing to run an ad during the Super Bowl by moveon.org. The ad merely talks about the $1 trillion deficit that America faces, who is going to pay for it. It is not mean. It is not indecent. This network refused to allow an opinion to be aired.

This is the same network that refused to air the drama documentary on President Reagan. Mr. Chairman, this all ties back to media ownership and our first amendment rights. When you have got just a few corporate executives controlling the majority of mainstream media, then you have got suppression of ideas and eventual censorship.

I ask that this committee hold a hearing on all first amendment rights and issues and censorship in this country.

With that, Mr. Chairman, thank you for the time. I yield back the balance of my time.

Mr. UPTON. Thank you.

The gentleman from Texas, Mr. Barton.

Mr. BARTON. Thank you, Mr. Chairman.

You can't play high school football as badly as I did in the 1960's and not have heard some of the words that we are trying to restrict the use of today. I might add that when they were used based on my performance, they were appropriately used.

But that is not why we are here. As a society, we have an obligation to the broader community to prevent the use of language over the public airwaves that is obscene, indecent or profane.

Now if you want to go to a movie that is rated R because of the language, you know, there is some discretion there. It is protected by the first amendment. If you want to watch a cable network that is airing material that is clearly labeled before the program is aired that this is adult material, there is discretion there.

But if you inadvertently go out of the room to pop some popcorn, your children are watching an award ceremony live, there is no discretion there. So this bill that Mr. Upton and Mr. Markey have propounded is long overdue, and I am proud to be an original cosponsor.

I am not a prude and I hope I am not hypocritical or sanctimonious, but there are times and places where you can express oneself very vigorously in a way that we would not want to in a public way, but there are also times and places where we have to conduct ourselves according to societal norms, and that is what this bill is all about.

I could not support it more strongly. I am very worried about our entertainment industry and our entertainment figures. They appear, more and more, to want to say and do things simply for the shock value. That demeans society. That demeans us. So I am very, very glad that Mr. Markey and Mr. Upton are sponsoring this bill; and I am very pleased by the comments on it, both by Mr. Tauzin, full committee chairman, and Mr. Dingell, the full committee ranking member.

I hope we can move this bill expeditiously, and I hope this is the start of regaining normalcy over the public airwaves.

With that, I would yield back my time.

Mr. UPTON. Thank you.

Mr. Green.

Mr. GREEN. Thank you, Mr. Chairman; and I appreciate you calling the hearing today.

As my colleagues have said, this is an issue that a number of us have been hearing about, and I am glad that our chairman and our ranking member have increased legislation for increasing penalties for indecent broadcast, of which I am an original cosponsor. But that does no good without aggressive enforcement, and many Americans believe that radio and television programming is crossing the line.

The FCC is trying to respond to public pressure for action in response to recent controversial uses of profanity during the live award show broadcast, but the testimony of our panelists today reveals we do not really know what the answer is to the title: Can that be said on TV.

In addition to vague and arbitrary definition of broadcast indecency, we often do not know how far decency regulations can go without running into the first amendment. The choice is to fight extensive cases in court against powerful companies that the government may lose and set a serious precedent, and it is likely that FCC seeks to reverse its Golden Globes decision. We would see this whole thing back in court, but somebody has to set a standard, and if the FCC cannot do it, it is up to Congress to do it.