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Mr. SOLOMON. I do know there is a broader proceeding going on that the Commission is addressing, and I am answering it from my perspective in enforcement cases.

Mr. BILIRAKIS. Yes, I realize your responsibility is enforcement. Yes, and I realize your responsibility is enforcement.

Before I go on, Mr. Bozell, yes?

Mr. BOZELL. There is an example, but there are others, and we have heard them anecdotally, but there is a written example I would be happy to give you.

Last year on Fox there was a program, Keen Eddie, which features a prostitute having sex with a horse.

Mr. BILIRAKIS. Oh, yes, sir.

Mr. BOZELL. And that was over the airwaves.

Or attempting to have sex, I should say. The Fox affiliate in Kansas city said he was forced to run that and that was not his responsibility.

Mr. BILIRAKIS. Yes, if you could share that with us, I would appreciate that.

With unanimous consent, I would ask it be made part of the record.

Mr. UPTON. Without objection.

[The information referred to follows:]

FOX 4

WDAF-TV, KANSAS CITY, MO

July 25, 2003

Mr. TIM MAUPIN

Chapter Director, Kansas City Metro Chapter

Parents Television Council

P.O. Box 22641

Kansas City, MO 64113

DEAR MR. MAUPIN,

We received your letter dated June 30, 2003 regarding the content of the Keen Eddie show that aired on June 10, 2003, at 8pm.

We forwarded your letter to the FOX Network. The Network, not WDAF TV4, decides what shows go on the air for the FOX Owned and Operated Television stations.

Sincerely,

Mr. BILIRAKIS. Yes, sir.

CHERYL MCDONALD
Vice President / General Manager
WDAF-TV FOX 4

Well, I guess I am the only one. It may not be a good idea, I do not know. Nobody has really followed up on what my emphasis has been here.

Are they not taking away or belittling what the chairman and Mr. Markey and what the most of the rest of us who have co-sponsored legislation want to do; but I think we are also coming to a consensus that there are going to continue to be problems, because that in itself is not going to cover everything that may come out of the woodwork.

Mr. BOZELL. Congressman, may I make a good point here?
Mr. BILIRAKIS. Yeah.

Mr. BOZELL. You do not want to come in with this with a rifle and do it so fine-tuned that you lose the spirit of what you are trying to do. According to the letter of the law, not a single thing we discussed today is obscene, when everyone in this room knows that

everything we have been discussing is having to do with obscenities. Yet the way the law is written none of it is obscene.

Mr. BILIRAKIS. If the local licensee were not forced, basically, in order to stay in business, to go along with the contracts by the networks, which would basically place them in the fear of maybe losing their, you know, affiliation, if they did not go along with it, could that take care of some of the problem?

Mr. BOZELL. I think, yes, because at that point you have got a community standard.

Mr. BILIRAKIS. Right.

Mr. BOZELL. You have got the community which would be able to voice itself with the station and the station could in turn react. I think it would be a positive influence.

Mr. BILIRAKIS. Mr. Corn-Revere.

Mr. CORN-REVERE. Certainly, anything that increases licensees' editorial discretion.

Mr. BILIRAKIS. Mr. Wertz, I think you have already indicated you would like to be able to have that type of freedom, if you will.

Mr. WERTZ. We actually had a case that addresses directly what you are talking about. We were affiliated with the network. A sports show was on an afternoon drive of one of our stations, and this was the Super Bowl in San Diego. The talent had a prostitute on, talked about all the different people that she had had at San Diego and not specific acts per se but pretty close, and we ended our relationship with the network over it because they refused to back down, and we wound up with what some people could consider and I among them—a lesser network at that moment, but we did it based on our principles, that that just did not play in Kalamazoo.

Mr. BILIRAKIS. Well, I certainly commend you for that.

All right, thank you very much.

Thanks, Mr. Chairman.

Mr. UPTON. Mr. Wertz, I want you to know that Mr. Bilirakis is also a Cubs fan.

Mr. WERTZ. Yes, they were very good for us this past fall.

Mr. UPTON. So is Mr. Engel when he does not have to root for the Mets or the Yankees, and I would just acknowledge for those members who were not able to be present today I would ask unanimous consent that all members of the subcommittee have an opportunity to submit an opening statement and in their absence, Mr. Engel, I address you.

Mr. ENGEL. I am not going to ask any questions, Mr. Chairman. I just want to ask unanimous consent to put in the record, but I want to say I admire Bono for the good work he has done to highlight poverty, hunger and AIDS in Africa, he is a very talented musician, he has shown himself to be bright and capable, but he should know better than to use curse words on national television, and I also just want to say that I am very encouraged to learn that the broadcast networks are adopting the 7-second delay or longer when showing a live program. I think that is a good step, and I understand members of the industry are calling for an industrywide effort to design and adopt indecency guidelines for all broadcasters, and I think that is good too.

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.

[blocks in formation]

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, 111 (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.

6

II. INDECENCY COARSENS SOCIETY AND TEACHES CHILDREN THAT MORALITY IS IRRELEVANT TO WHAT THEY SAY.

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 tele

vision.

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.

Memorandum Opinion and Order, In the Matter of a Petition for Clarification or Reconsideration of Pacifica Foundation, 36 RR 2d 1008 (1976).

6 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.

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