**WRITTEN STATEMENT**

**of**

**MICHAEL J. COPPS**

**Commissioner**

**Federal Communications Commission**

**on**

**H.R. 3717, the \"Broadcast Decency Enforcement Act of 2004"**

**Before the**

**Subcommittee on Telecommunications and the Internet**

**Committee on Energy and Commerce**

**United States House of Representatives**

**Washington, DC**

**Wednesday, February 11, 2004**

Mr. Chairman, Members of the Committee, I am honored to appear before
you today on the subject of indecency on the people's airwaves and at a
time when millions of those people are looking for action to halt what
appears to be media's race to the bottom -- if, indeed, there even is a
bottom to it. I appreciate the attention this Committee is devoting to
the issue and I am grateful to you for the opportunity to share some of
my perspectives, and more importantly, to hear yours.

Every time I boot up my FCC computer, every time I visit a town or city
across America, I hear the same refrain from people: we are fed up with
the patently offensive programming \-- the garbage \-- coming our way so
much of the time. I saw the people's anger all last year when
Commissioner Adelstein and I took to the road in our media ownership
forums, and I saw it again just two weeks ago when all the Commissioners
were in San Antonio \-- parents lined up to express their frustration
with programming's addiction to sex, violence and profanity. We even
heard from children who were fed up with what they're seeing and
hearing. People all across this land of ours are demanding action \--
action now \-- to stop the increasing sex and violence bombarding their
airwaves.

Indecency was the subject of my first statement when I arrived at the
FCC in 2001. For much of the past two and a half years, it has been an
uphill battle. I am pleased that the Commission now seems to be coming
around to the idea that we need to take action against indecency. I hope
we will now also get serious about our obligation to enforce the
profanity part of the statute. In any event, I will know the Commission
is serious about tackling indecency when we compile a record to match
our rhetoric. We are not there yet.

Certainly there have been a couple of high profile incidents that have
garnered widespread attention, none more so than last week's shameful
half-time display at the Super Bowl, as probably a quarter billion
people around the world watched us celebrate what should have been an
all-American evening of sports and artistic creativity for the entire
family. We got something far different. This latest episode has had a
galvanizing effect both within and outside the Commission. Sometimes one
incident can spark a revolution, but the seeds of this revolution have
been building -- and have been painfully obvious -- for a long, long
time.

The real test for the FCC is not how we address this particular
incident, although what we do and how quickly we do it will be
instructive. The real test is how the Commission addresses the thousands
of other complaints pertaining to hundreds of other programs. And we
have so far failed this test. Let's look at the facts. Under the FCC
numbers, which at that time significantly under-counted the number of
complaints we actually received, there were almost 14,000 complaints
about 389 different programs in 2002. Yet, of those hundreds of
programs, we issued a mere ***seven*** notices of apparent liability
(NALs) that year -- and only two of those have been fully resolved. In
2003, the number of complaints jumped to over 240,000 and concerned 375
different programs. Yet, this past year we issued only ***three*** NALs.
If I was a Big Media executive or an advertising consultant figuring out
how to attract all those 18-34 year old eyeballs to shows so I could
sell them products, I wouldn't exactly be quaking in my boots that the
big hammer of the FCC was about to cause me serious pain. I'd say:
"There aren't any torpedoes, full speed ahead." Too many indecency
complaints from consumers and an avalanche of truly indecent broadcasts
are falling through the cracks. Concerned parents are paying the price.
Worse, our kids are paying a price they shouldn't have to pay.

"Why don't those parents just turn the set off," I have been told as I
push to get some action on indecency. But are we supposed to just turn
off the all-American Super Bowl? The half-time show gives the lie to
that one. "Let the V-Chip handle it" is another refrain I hear. Don't
get me wrong, I like the V-Chip. But it was irrelevant that Sunday
night. How do you warn against half-time shows or slimy ads or
sensation-seeking previews of coming movie and television attractions?

Not enough has changed over the past few years in the FCC's enforcement
of the indecency laws. And at the same time, I believe that some of the
Commission's actions pretty much guarantee that things will get even
worse. Instead of enforcing indecency laws, the Commission recently
rewarded giant station owners by dismantling media concentration rules
that provided at least some protection against too few Big Media
companies owning too many broadcasting outlets. We open the door to
unprecedented levels of media consolidation and what do we get in
return? More garbage, less real news and progressively crasser
entertainment. Should we really be surprised that two of the very
biggest media conglomerates -- Viacom and Clear Channel -- alone
accounted for more than 80 per cent of those fines that were proposed
for indecency? We weakened our concentration rules without even
considering whether there is a link between increasing media
consolidation and increasing indecency on our airwaves. It makes
intuitive sense that there is. As media conglomerates grow ever bigger
and control moves further away from the local community, it stands to
reason that community standards go by the boards. Who is going to be
more attuned to community standards -- the national owner who is driven
by Wall Street and Madison Avenue, or a broadcaster closer to the local
scene and who, in some communities, you still see at church, at the
store, and around town? I begged for us to study what relationship
exists between the rising tide of media consolidation and the rising
tide of media indecency before we voted on June 2 to loosen the
ownership safeguards. I thought we owed that to our kids. Maybe now the
rising tide of public anger will force some action.

We know this: there is a law against indecency. The courts have upheld
it. And each one of us at this table has an obligation to enforce that
law in a credible and effective way. Each of us has a mandate to protect
children from obscene, indecent and profane programming.

Some have argued that the Commission needs additional authority from
Congress so that it can make a serious effort to stop indecency. I am
all for more authority. But in the meantime, let us use the arrows we
already hold in our quiver. Accordingly, I am asking my colleagues to
take the following five steps, all of which can be done under our
current statutory authority and which would send a strong message that
the FCC is serious about eliminating indecency on our television sets
and radios.

1.  **Use Our Full Authority to Punish Transgressors -- License
    Revocation, License Non-Renewal and Higher Fines:** We need to send
    some of the more outrageous transgressions and repeat offenders to
    license revocation hearings. Taking some blatant offender's license
    away would let everyone know that the FCC had finally gotten serious
    about its responsibilities, and I think we would see an almost
    instantaneous slamming on of the brakes in the race to the bottom.
    The Commission has never used this authority.

> If the Commission can't bring itself to do this, we should at least be
> imposing meaningful fines. "Cost of doing business fines" will never
> stop Big Media's slide to the bottom. We should have long since been
> fining violators for each utterance on a program, rather than treating
> the whole program as just one instance of indecency. All of the fines
> we have imposed against Viacom could be paid for by adding one
> commercial to the Super Bowl \-- and the company would probably end up
> with a profit. Fining every utterance could lead to significantly
> higher fines. We have long had the authority to take this step. We
> should have been using this authority years ago.
>
> The Commission should also establish an effective license renewal
> process under which we would once again actually consider the manner
> in which a station has served the public interest when it comes time
> to renew its license. It is our responsibility not to renew the
> licenses of those who air excessive amounts of indecent and violent
> programming. We need to take our job seriously in the license renewal
> process. It all comes down to this: station owners aren't given
> licenses to use the public's airwaves to peddle smut. They are given
> licenses to serve the public interest. When they no longer serve the
> public interest, they should no longer hold a public license.

2.  **Reform the Complaint Process:** The process by which the FCC has
    enforced the indecency laws has for too long placed inordinate
    responsibility upon the complaining citizen. That's just wrong. It
    is the ***Commission's*** responsibility to investigate complaints
    that the law has been violated, not the citizen's responsibility to
    prove the violations.

> The Commission should commit to addressing all complaints within a
> specific timeframe such as 90 days. Today, when complaints often
> languish, the message is loud and clear that the FCC is not serious
> about enforcing our nation's laws. Recent cases such as Infinity's
> repulsive WKRK-FM case, Infinity's Opie and Anthony show and Clear
> Channel's "Bubba the Love Sponge" all took more than a year for an
> initial decision. Congress expected action from the FCC, but all too
> often our citizens' complaints seem buried in bureaucratic delay or
> worse. I would add here that some of this material goes beyond the
> indecent to the obscene. We ought to treat it as such and move against
> it or, if we're still timorous about it, send it over to the
> Department of Justice with a recommendation for criminal proceedings.
>
> Lack of complete information about what was said and when it was
> broadcast should not be allowed to derail our enforcement of the laws.
> The Commission appears to be coming around to the idea that a tape or
> transcript is not required. Yet, the Commission's website still seems
> to indicate that this information is needed or a complaint will be
> dismissed without an investigation. I have suggested that broadcasters
> ***voluntarily*** retain tapes of their broadcasts for a reasonable
> period of time. Many broadcasters already retain such recordings, but
> I believe that ***all*** broadcasters should do so. That way, when
> someone complains about what went out on the public airwaves we can
> have a record to see how those airwaves were used \-- or abused.
>
> And, in matters of such importance, I believe the Commissioners
> themselves, rather than the Bureau, should be making the decisions.
> Issues of indecency on the people\'s airwaves are important to
> millions of Americans. I believe they merit, indeed compel,
> Commissioner-level action.

3.  **Tackle Graphic Violence:** It's time for us to step up to the
    plate and tackle the wanton violence our kids are served up every
    day. Compelling arguments have been made that excessive violence is
    every bit as indecent as anything else that's broadcast. Those
    arguments are strong enough to demand our attention. We don't need
    more studies. Over the years, dozens of studies have documented that
    excessive violence has hugely detrimental effects, particularly on
    young people. I don't say this is a simple problem to resolve,
    because it is not. But that's no excuse to run away from it. Wanton
    violence on the people's airwaves has gone unaddressed too long.
    Here too, we pay a high price, especially the kids.

4.  **Convene an Industry Summit that includes Cable and DBS:** I have
    long suggested, without much success, that broadcasters voluntarily
    tackle the issues of indecent and violent programming. I'll bet
    there is not one industry executive sitting in this room today who
    hasn't heard my plea on this over the past two-and-a-half years.
    Many of you will remember the Voluntary Code of Broadcaster Conduct
    that for decades saw the industry practicing some self-discipline in
    the presentation of sex, alcohol, drug abuse and much else. It
    didn't always work perfectly, but at least it was a serious and
    credible effort premised on the idea that we can be well-entertained
    without sinking further into the bottomless depths of indecency. The
    issue here is not forcing industry to do this; it's a question of
    why doesn't industry step up to the plate and have a conversation
    with itself that tens of millions of Americans want it to have.

> This summit must include cable and satellite providers. Eighty-five
> percent of homes get their television signals from cable or satellite.
> Most people don't recognize the difference as they flip channels
> between a broadcast station and a cable channel. Because cable and
> satellite are so pervasive, there is a compelling government interest
> in addressing indecency when children are watching. The courts have
> already applied this to cable.
>
> It would be infinitely preferable, and far quicker, to have industry
> step up to the plate rather than have to go the route of legislation
> and regulation that can take a long time and is likely to be contested
> every step of the way. Perhaps cable could explore such options as
> offering a family tier so that families don't need to receive channels
> like MTV in order to get the Disney Channel. My colleague Commissioner
> Martin has made positive suggestions about this. Cable could also make
> sure that family channels offer all family-friendly programming. And
> broadcasters could commit to family hours during prime time.
>
> I believe that with encouragement from Congress and from the
> Commission, and to the applause of most Americans, our radio,
> television, cable and satellite chieftains could come together to
> craft a new code of conduct that would serve the needs of their
> businesses as well as those of concerned families. And I'll bet they
> could get it done this very year. Where is the industry leader who
> will do this?

5.  **Affirm the Rights of Local Broadcasters to Control Their
    Programming:** I was struck at our recent Charlotte localism hearing
    when I asked both a local broadcaster and a representative from one
    of the stations owned by a national network how often they had
    preempted a show based on community standards. The national station
    representative admitted he had never done so. The local owner stated
    that he frequently took the initiative -- and this isn't easy -- and
    he refused to run shows like *Married by America, Cupid*, and
    others.

> In 2001, local broadcasters filed a petition asking the Commission to
> affirm a local broadcaster's autonomy in making programming decisions
> for its station. I think we should be concerned about allegations that
> networks are hindering affiliates' ability to refuse to broadcast
> network programming that is not suitable for their communities. Yet,
> this petition has sat unaddressed for over two years. The Commission
> should issue its decision promptly.

Mr. Chairman, distinguished Members of this Committee, these are a few
concrete steps that I advocate our taking to demonstrate that this
Commission is finally dead serious about taking a firm stand against
indecency as the level of discourse on the public's airwaves
deteriorates and stations continue to push the envelope of outrageous
programming and promotions ever further. I don't know what the precise
mix of legislative initiative, regulatory enforcement and voluntary
industry action should be here, but millions of Americans are asking us
to get on with the job. Today we have the best of television and we
have, undeniably, the worst of television. When it is good, it is very,
very good; and when it is bad, it is horrid. It is also shameful. I
don't believe this is what the great pioneers of the broadcast industry
had in mind when they brought radio and television to us.

This is about the public interest, responsible broadcasting, and
providing programming that appeals to something other than the lowest
common denominator. There needs to be inviolable space out there that
appeals to the better angels of our nature and that carves out a safe
harbor for our kids. That may become harder and harder to do as
technology evolves, but our public interest responsibility does not
evolve. It is a constant. And if we are true to it here, we will find a
way to translate all the concern and anger over this issue into policies
and procedures that can yet vindicate what the public airwaves can do
for us all. We need to do this ***now***.

This hearing is a public service and I appreciate the opportunity to
testify. I am pleased that this Committee is on the job and
demonstrating its commitment on a matter that so many Americans want to
see tackled and resolved. I look forward to hearing your comments and
further thoughts on all this.