Separate Statement of Commissioner Susan Ness

**In Re: Industry Guidance on the Commission's Case Law Interpreting**

**18 U.S.C. 1464 and Enforcement Policies Regarding Broadcast
Indecency**

Our enforcement of the broadcast indecency statute compels the FCC to
reconcile two competing fundamental obligations: (1) to ensure that the
airwaves are free of indecent programming material during prescribed
hours when children are most likely to be in the audience; and (2) to
respect the First Amendment rights of broadcasters regarding program
content.

Understandably, the public is outraged by the increasingly coarse
content aired on radio and television at all hours of the day, including
times when children are likely to be listening or watching. The flood of
letters and e-mails we receive reflect a high degree of anger. As a
parent, I share the public's frustration. Many parents feel that they
cannot enjoy watching daytime or primetime television with their
children for fear that their youngsters will be exposed to indecent
material -- content that just a few years ago would have been
unimaginable on broadcast television.

Despite an onslaught of on-air smut, the Commission necessarily walks a
delicate line when addressing content issues, and must be careful not to
tread on the First Amendment \-- the constitutional bulwark of our free
society. Even words that might be construed as indecent are subject to
some constitutional protection against government regulation.[^1]

That said, the Supreme Court has seen fit, despite declining broadcast
audience shares, to reaffirm the FCC's broadcast indecency enforcement
role, given the "pervasive" and "invasive" characteristics of the free
over the air broadcast medium.[^2] Our Policy Statement on indecency
reconciles our statutory mandate and constitutional obligation by
providing helpful guidance to broadcasters and the public alike. The
guidance we offer -- a restatement of existing statutory, regulatory,
and judicial law -- establishes a measure of clarity in an inherently
subjective area.

**Recommended Procedural Improvements**

We should strive to make our complaint procedures as user-friendly as
possible.[^3] I believe that our complaint process could be improved if,
prior to acting on an indecency complaint, the Commission routinely
forwarded the complaint to the licensee in question. The Policy
Statement concedes that in "many \[indecency\] cases, the station may
not be aware that a complaint has been filed."[^4] Moreover, many
consumers feel that the Commission mechanically dismisses their
complaints. I do not believe that broadcasters' First Amendment rights
would be threatened if we were to send broadcasters a courtesy copy of
complaints filed with the FCC. Indeed, most broadcasters *want* to be
made aware of audience complaints. And consumers would be reassured that
their views were being treated seriously.

**Broadcasters Are Part of a National Community**

Release of this Policy Statement alone will not solve the festering
problem of indecency on the airwaves. However, it is entirely within the
power of broadcasters to address it \-- and to do so *without government
intrusion*. It is not a violation of the First Amendment for
broadcasters on their own to take responsibility for the programming
they air, and to exercise that power in a manner that celebrates rather
than debases humankind.

It is time for broadcasters to consider reinstating a voluntary code of
conduct. I encourage broadcasters, the Bush Administration, and Congress
swiftly to resolve any antitrust impediments to such action and move
ahead.

We all are part of a National Community. As stewards of the airwaves,
broadcasters play a vital leadership role in setting the cultural tone
of our society. They can choose to raise the standard or to lower it. I
hope that broadcasters will rise to the occasion by reaffirming the
unique role of broadcasting as a family friendly medium. The public
deserves no less.

[^1]:
    > *FCC v. Pacifica Foundation*, 438 U.S. 726, 746 (1978) (while
    > offensive words might "ordinarily lack literary, political, or
    > scientific value, they are not entirely outside the protection of
    > the First Amendment), *cf.* *id.* at 745 ("obscenity may be wholly
    > prohibited").

[^2]:
    > See, *Reno v. ACLU*, 521 U.S. 844, 868 (1997).

[^3]:
    > The Policy Statement is careful to point out that complaints need
    > not be letter perfect, *see, e.g.,* n. 20 (citing Bureau decision
    > that an inexact transcript may be sufficient to meet procedural
    > requirements).

[^4]:
    > Policy Statement at para. 24.