**WRITTEN STATEMENT**

**of**

**KATHLEEN Q. ABERNATHY**

**Commissioner,**

**Federal Communications Commission**

**on**

**"The Broadcast Decency Enforcement Act of 2004"**

**Before the\
United States House of Representatives**

**Committee on Energy and Commerce**

**Subcommittee on Telecommunications and the Internet**

**Wednesday, February 11, 2004\
**

**SUMMARY OF STATEMENT OF KATHLEEN Q. ABERNATHY**

The law holds that broadcasters, because they make licensed use of
publicly owned airwaves to provide programming to the general public,
have a statutory obligation to make sure that their programming serves
the needs and interests of the local audience. The courts have upheld
the existence of a compelling government interest in the well-being of
children, as well as the prerogative of parents to supervise their
children in furtherance of that well-being. These simple and
straightforward legal principles are the foundation of laws and
regulations that limit the broadcast of indecent programming, and make
available to parents means to help them control the programming
available to their children.

Notwithstanding these well-established legal principles and the steps
taken in furtherance of them, this hearing is a most timely response to
an increasingly urgent set of problems. We have seen a progressive
coarsening of our culture as reflected in broadcasting, cable and video
games. It is particularly surprising that some more recent incidents
have occurred *despite* this Commission's vigorous enforcement of the
indecency laws, *despite* our announcement that these efforts would be
further intensified by the prospect of levying higher fines and
subjecting each separate utterance to a separate fine, *despite* our
putting broadcasters on notice that we would not hesitate to designate
licenses for revocation if the circumstances warranted, *despite*
pending Congressional legislation to increase our forfeiture authority,
and *despite* the Administration's support for that legislation.

I strongly support the "Broadcast Decency Enforcement Act of 2004" and
your efforts to increase our forfeiture authority for violations of our
indecency rules. Monetary penalties alone, however, may not fully
prevent future misconduct, especially when it comes to the live
broadcast of radio or TV programming. Therefore, in addition to current
and even enhanced enforcement measures, it may also be appropriate to
consider improving and amplifying our complement of forward-looking
safeguards as well.

This means going beyond the V-chip and program ratings legislation that
Congress passed to help parents understand the content of broadcast
programs. To supplement that effort, I have personally undertaken
outreach efforts to further parental awareness of the V-chip and ratings
system. But any system based on giving advance notice to parents will
work only when accurate information is, in fact, made available. Because
many unwelcome surprises seem most apt to happen during live-broadcast
entertainment or awards shows, we could also evaluate the effectiveness
of a five- or ten-second audio and video delay on the broadcast of live
entertainment events. Furthermore, I believe we will need to enlist the
help of broadcasters if we are to ultimately address consumer concerns.
Broadcasters must accept responsibility for the profound effect their
programming has on our children and our culture.

**STATEMENT OF KATHLEEN Q. ABERNATHY**

Good morning Mr. Chairman and distinguished Members of the Committee. I
appreciate the opportunity to appear before you this morning to discuss
"The Broadcast Decency Enforcement Act of 2004" and the FCC's efforts to
protect children from indecent broadcast programming.

A recent study found that even the youngest of children -- those under
the age of six -- are immersed in today's media world, and a vast
majority of parents have seen their children imitate behavior they have
seen on television.[^1] This comes as no surprise: children are a part
of the broadcast audience for a substantial part of the broadcast day.
Moreover, media has a profound impact on our perception of the world and
gives us an impression of what is "normal" or acceptable in our society.

The law holds that broadcasters, because they make licensed use of
publicly owned airwaves to provide programming to the general public,
have a statutory obligation to make sure that their programming serves
the needs and interests of the local audience. These local audiences
inevitably include parents and children. The courts have upheld the
existence of a compelling government interest in the well-being of
children, as well as the prerogative of parents to supervise their
children in furtherance of that well-being. Those simple and
straightforward legal principles are the foundation of the laws and
regulations that limit the broadcast of indecent programming, and make
available to parents means to help them control the programming
available to their children.

Notwithstanding these well-established legal principles and the steps
taken in furtherance of them, this hearing is a most timely response to
an increasingly urgent set of problems. The recent Super Bowl halftime
show was perhaps the most notorious, but only the most recent, example
of a progressive coarsening of our culture as reflected in broadcasting,
cable, and video games. And it is not simply an issue with regard to
excessive sexual content in many mainstream programs; it is also
reflected in the excessively violent content of material distributed to
children via broadcasting and the internet.

It finally appears that the level of public tolerance is waning for
artists who regard any live appearance on broadcast television as an
opportunity for indecent utterances or actions. And it is also waning
for broadcasters who, despite all the surprise and contriteness they
display *after* an indecent incident has occurred, seem bereft of the
common sense and control needed to prevent such action *before* it
happens.

It is particularly surprising that some more recent incidents have
occurred *despite* this Commission's vigorous enforcement of the
indecency laws as described by Chairman Powell, *despite* our
announcement that these efforts would be further intensified by the
prospect of levying higher fines and subjecting each separate utterance
to a separate fine, *despite* our putting broadcasters on notice that we
would not hesitate to designate licenses for revocation if the
circumstances warranted, *despite* pending congressional legislation to
increase our forfeiture authority, and *despite* the Administration's
support for that legislation.

Historically the FCC's indecency rules and enforcement efforts have
generally been effective at balancing broadcasters' First Amendment
rights with society's right to protect its children from material that
is unsuitable for them. Our rules and precedents have allowed us to
calibrate our evaluations to the specific circumstances of particular
broadcasts and to reach results that, hopefully, reflect the judgment an
average broadcast viewer or listener would make. But with the advent of
new technologies that deliver hundreds of channels into consumers' homes
and an increased desire to target marketing to those elusive viewers
aged 18 to 24, it appears that some radio and TV broadcasters have lost
their footing and must be reminded not only of their public interest
obligations but also of the critical role they play in forming and
shaping society.

In light of this environment, the FCC must be given the ability to
impose meaningful fines that will deter the future airing of indecent
programming. Therefore, I strongly support the "The Broadcast Decency
Enforcement Act of 2004" and your efforts to increase our forfeiture
authority. Our current statutory maximum of \$27,500 could be perceived
as a mere slap on the wrist. In contrast, for any violation of Title II
of the Act, we are authorized to fine up to \$120,000 for a single
violation, and \$1.2 million for continuing violations. The well-being
of our children is just as important as Title II violations and our
authority should be expanded to demonstrate this commitment.

The FCC also must do more to clarify the legal parameters regarding the
broadcast of indecent material and encourage best practices by the
industry. For example, relying on its understanding of past Commission
rulings, the Enforcement Bureau staff recently issued a decision
determining that Bono's use of the "f word" during a live telecast of
the Golden Globes was not indecent. The full Commission is reviewing
this staff decision. And while I would not want to comment on what
action the full Commission may ultimately take, I will say that it is
difficult to imagine very many contexts where the knowing broadcast of
this obscenity would not be patently offensive under contemporary
community standards.

Moreover, I am aware that concerns have been raised about the processes
currently used to handle indecency complaints, including how these are
enumerated and reported, the standard of documentation that must be met
even to file a complaint, and the length of time it has taken us to
resolve them. I support an expeditious reexamination of these matters.
If these or any other procedural rules are unintentionally discouraging
the public from filing otherwise credible complaints, they can and must
be changed.

Nevertheless, these enforcement-based measures, at their best, are
necessarily after the fact. And although I strongly support the pending
legislation to increase the amount the FCC may fine broadcasters for
violating the indecency rules, monetary penalties alone may not fully
prevent future misconduct, especially when it comes to the live
broadcast of radio or TV programming. Therefore, in addition to current
and even enhanced enforcement measures, it may also be appropriate to
consider improving and amplifying our complement of forward-looking
safeguards as well.

Currently, these forward-looking safeguards consist of laws and
regulations whose intent is to enable parents to limit their children's
television viewing to those programs consistent with whatever value
system the parents are striving to teach. Gone forever are the days when
a parent could simply sit a child down in front of the TV and leave that
child in the hands of the broadcast babysitter. Television viewing today
requires that responsible parents be proactive in selecting and in
monitoring the material their children are permitted to watch.

Our laws try to help parents understand and control the programs their
children watch in several different ways, especially when it comes to
pre-recorded material. The rule restricting indecent broadcasts to the
hours of 10 p.m. to 6 a.m. puts parents on notice that they must
exercise particular care in supervising the material that children watch
or listen during those hours. But it is perhaps even more important to
understand what options are available to protect children from adult
programs that broadcast during the main part of the broadcast day --
programs that may not be indecent but include excessive violence or
sexual content or are simply inappropriate for young children. The
V-chip and program ratings legislation that Congress has passed is
intended to help parents understand the content of broadcast programs,
thereby assuring that the values they are attempting to instill in their
children won't be compromised by exposure to programming at odds with
those values.

Is this system working as well as one would wish? No, it is not. Most
parents do not understand how to use the V-chip and are unaware that a
TV ratings system exists.[^2] At the same time, broadcasters are trying
to retain audiences that have been deserting them in droves in favor of
cable programming that is not subject to any indecency restrictions. As
a consequence broadcast licensees are constantly pushing the programming
envelope in an attempt to be more like cable.

The Commission is reaching out to the public to help make parents aware
of the V--chip and the program ratings system, and how to use them. I
have tried to address this problem by working with the FCC's Consumer
and Governmental Affairs Bureau to create an FCC web site called
*Parents Place*. *Parents Place* explains the rating systems, including
what the ratings mean and when and where the ratings are displayed and
directs parents to web sites that identify age-appropriate programming.
It also explains the V-chip is and how it works. In addition, I
dedicated an issue of my consumer newsletter, Focus on Consumer
Concerns, to how parents can protect children from objectionable
programming on television. This newsletter also includes details on the
V-chip technology and ratings system, as well as other blocking tools,
including lockboxes.

Nevertheless, any system based on giving advance notice to parents,
however it is constituted, will work only when advance notice and
information are, in fact, made available. As last week's Super Bowl
debacle showed, these early warning systems simply won't work in the
face of surprise. Whatever we may be able to do about either improving
the existing system or informing more parents how to use it, both
efforts are meaningless unless we also consider ways to eliminate the
kind of surprise indecency that thwarts the best efforts of even the
most vigilant parent.

Because such unwelcome surprises seem most apt to happen during
live-broadcast entertainment or awards shows, we could begin by
evaluating the effectiveness of a five- or ten-second audio and video
delay on the broadcast of live entertainment events. This type of
safeguard has already been implemented by a number of broadcasters, and
it would seem to offer the best assurance against the recurrence of the
kind of unfortunate spur-of-the-moment displays that we are increasingly
being subjected to.

I also believe we will need to enlist the help of broadcasters if we are
to ultimately address consumer concerns because the issues encompass
more than simply what is or is not indecent programming. I am somewhat
heartened that broadcasters are finally getting the message. Just last
week I spoke at a conference organized by Fox Entertainment Group for
their creative executives. All of senior management were there, from
Rupert Murdoch on down, and the focus of the conference was how their
producers and programmers can balance creativity and responsibility. I
discussed not only what the law requires with respect to indecency on
the airwaves, but how they, as broadcasters, cable programmers, and
filmmakers, can and should go beyond the letter of the law to ensure
that their programming reflects the values of the communities they
serve. My remarks were followed up be a series of panels that included
parents and their children, producers, government officials, and members
of such groups as Kaiser Family Foundation and the Parents Television
Council. The goal was to have an open and frank discussion about media
content, the FCC's indecency rules and the networks responsibility to
its viewers.

Mr. Chairman, if there is anything at all positive to be said about what
has happened, it may be that all of us now appreciate the significant
challenges we face in ensuring that our children are protected from
indecent or inappropriate programming while continuing to tap into the
best of what broadcasting has to offer. In response to these challenges,
I fully support your efforts to increase our forfeiture authority and
the expanded enforcement efforts by the Commission, as well as the
possibility of improving the existing safeguards, and I welcome the
opportunity to discuss any additional matters the Members of this
Committee may wish.

[^1]: *Zero to Six, Electronic Media in the Lives of Infants, Toddlers
    and Preschoolers,* Fall 2003, The Henry J. Kaiser Family Foundation.

[^2]: *See*, *e.g., Parents and the V-Chip 2001,* July 2001, The Henry
    J. Kaiser Family Foundation.