**Remarks of**

**FCC Chairman Michael Powell**

**At the**

**NAB Summit on Responsible Programming**

**The Renaissance Hotel**

**Washington D.C.**

**March 31, 2004**

Good Afternoon. Thank you Eddie for that kind introduction. I applaud
you and your members for holding this summit and candidly exploring
these issues which have lit up Washington - - - and indeed America - - -
as of late.

These are challenging times for the broadcast industry.

For one, we are coming off an explosive debate about media ownership.
The heated rhetoric often far exceeded the facts, but in any event, it
created a very hostile climate for the media industry that will likely
have lasting consequences. Of particular significance, and concern, is
that the debate re-energized the previously fading debate about the role
of government in content---whether it be restricting offensive content,
or promoting favored content and viewpoints. This increased comfort with
content intrusion is part of what is on display in the furious debate
about broadcast indecency and excessive violence.

In addition, the competitive pressures from other media sources continue
to dramatically fragment audiences. Competition continues to grow
stronger from cable and satellite, but we are also seeing the use of
advanced technology to create many other platforms that folks turn to
for entertainment, information and news. The rise of satellite radio,
the Internet, video gaming and, of course, TiVo with its ever-so-popular
30-second skip feature all have combined to present sharp threats to
traditional broadcasting.

Indeed, I am of the view that competitive pressures much more than
consolidation are what account for more programming that tests the
limits of indecency and violence. As audience continues to fragment and
the number of choices multiplies, it is harder and harder to grab and
hold a viewer or listener

The indecency laws are not new, though you would think so listening to
the furor of some in response to enforcing them. For 77 years, Congress
has had a statute that prohibits any obscene, indecent, or profane
utterance over the airwaves. People are more shocked to learn that this
statute today resides in the criminal code and that a violation could
lead to criminal prosecution.

The FCC has always enforced these laws with varying success. In some
periods, the FCC has been fairly light in its enforcement and in other
years comparably heavy. I have seen both. Some argue passionately that
we should have no such laws out of respect for the First Amendment, and
others argue with equal gumption that we should draw even more stringent
limits. Such forces have always buffeted the FCC's enforcement efforts
\-\-- or content intrusion generally for that matter.

These can be very difficult decisions. It is very hard to balance and
reconcile our moral and cultural values on one hand, and the enormous
value we place on speech free from government intrusion on the other. At
the margins this is quite difficult and the FCC has generally been
cautious.

Currently, however, we are not talking about speech or conduct on the
margin that has set off the current powder keg in the country. We see
increasing - - -I might even say escalating - - - complaints from the
public because increasingly it seems the media is not playing close to
the line, but is outright leaping past the line and in fact daring the
audience and daring the government to do anything about it. Some of the
transcripts I have been forced to read reveal content that is pure
trash, plain and simple, and few, other than staunch libertarians, could
possibly stand up and defend it publicly.

I think it is important, however, to understand what the American people
are actually upset about. The Superbowl incident and the debate it
unleashed is not really about a bare breast. It is not whether our
society can accept public displays of the human body. It can. What
really upset people was the shock and amazement that such material would
appear on [that]{.underline} program at [that]{.underline} time, without
warning, and without any reasonable expectation that they would see such
a thing.

In other words, the debate is not best understood as one about what you
can do or cannot do on radio or television. Rather, it is more about
whether consumers can rely on reasonable expectations about the range of
what they will see on a given program at a given time.

It is not Janet's nudity that is decried. It is the fact that "by god it
was the Superbowl!" the largest prime television event of the year. An
event for friends and family. People do not want to feel that they can
be struck by lightning, or hit by a truck at any moment. Similarly, they
do not like the sense they have no safe expectation of what they might
see or hear during a given program---precisely the formula some are
using to grab headlines. By the nature of your medium, consumers expect
more of you than most.

A station broadcasts a variety of fare during the day, and is limited by
day parts. Consumers expect to arrange their choices around programming
at certain times---the morning shows, afternoon soaps and talk shows,
primetime, and late night have special meaning in broadcasting, unlike
in other media.

Given the free over the air nature of the medium, consumers do not
express any prior consent to receive certain sounds and images---at
least not to the extent they do with cable or rented videos, for
example.

The First Amendment is cherished, but it bends only for you among media
services. The Supreme Court and countless legal decisions create a
special exception that allows government to demand more from
broadcasting, right or wrongly.

Additionally, free spectrum has always been premised on your industry
acting as a public trustee. People feel they have a right to demand
higher standards from the industry and have different expectations about
what they will see, as compared with the movie theater, a comedy club,
HBO, or the Internet.

And, last but not least, the law says so.

This industry has always had a proud tradition of serving the public
interest and has always relished that honor---wearing it right out on
your sleeve. This is a public spirited medium that prides itself on
delivering the news, weather, traffic, critical information in an
emergency, the Amber Alert and the countless contributions you make to
your local community.

It is your "publicness" that also invites strong governmental oversight
and interest. The ability to limit these intrusions and protect your
commercial viability depends heavily on policing yourselves. I think
this industry must set a higher standard commensurate with its privilege
as public trustees and with its own traditions. Setting your own
standards is your best defense.

In this vein, I want to strongly encourage you to develop and adopt a
new voluntary code to guide your actions in the same spirit you have in
years past. I believe you can create such best practices and guidelines,
consistent with the law. It would be in your interest to do so.

Finally, I have heard some of you call for an FCC rulemaking to create
more "clarity" as to what is prohibited. I want to warn you that this is
unwise. You do not want to ask the government to write a "Red Book" of
Dos and Don'ts. I understand the complaint about knowing where the line
is, but heavier government entanglement through a "Dirty Conduct Code"
will not only chill speech, it may deep freeze it. It might be an ice
age that would last a very long time.

I will conclude, as I once concluded a speech on the First Amendment
several years ago: "We should think twice before allowing the government
the discretion to filter information to us as they see fit, for the King
always takes his ransom."

Thank you.

\- FCC -