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 aQcMET  FILE  COPY  Oi?  lGlfM. 
 MORAUTY  IN  MEDIA,  INC.  475  Riverside  Drive,  New  York,  NY  10115  l  (212)  870-  3222  l  Fax:  (212)  870-  2765 

 FOUNDER 
 REV.  MORTON  A.  HILL  S.  J. 
 (1917-  1985) 

 CNNUMAN  EMERITUS 
 RABBI  DR.  JULIUS  G.  NEUMANN 

 FOUNDING  MEMBER 
 REX.  ROBERT  E.  WILTENBURG 

 OFFlcERs 
 ROBERT  L  CAHILL,  JR. 
 Chairman  of&  e  Board 

 ROBERT  W.  PETERS,  ESQ. 
 President 

 EDWARD  A.  HYNES 
 vicepresident 

 PETER  KNICKERBOCKER 
 Vice  President 
 Treasurer 

 PAUL  J.  McGEADY,  ESQ. 
 General  counsel 

 DIRECTORS 
 KEVlN  M.  BEATTIE,  ESQ. 
 ROBERT  L  CAHILL,  JR. 
 SOPHIA  CASEY 
 THOMAS  J.  DONNELLY,  ESQ. 
 MONSIGNOR  PAUL  J.  HAYES 
 RICHARD  HUGHES 
 MONSIGNOR  JAMES  P.  L&  ANTE 
 NICHOLAS  D.  MASlRONARDI 
 ROBERT  H.  McCCOEY 
 PAUL  J.  McGEADY,  ESQ. 
 PAUL  M.  McGUNCHEY 
 ROBERT  W.  PETERS,  ESQ. 
 RABBI  DR.  MORTON  B.  POMERANlZ 
 EUNICE  RILES 
 FRANK  J.  RUSSO,  JR. 
 VICTOR  SAYEGH 
 JUUEN  N.  VACHON 
 JOHN  J.  WALSH,  ESQ. 

 NATioNuAwlsoRYMMRD 
 FRANCIS  J.  WNLEAVY 
 Ret.  Vlc&  hairman 
 International  Telephone  and 
 Telegaph  Caporation 

 THOMAS  J.  FIATLEY 
 CEO,  The  Flaky  Campany 

 WELLINGTON  T.  MARA 
 PreStillt 
 New  York  Football  Giants,  inc. 

 THOMAS  A  MURPHY 
 Ret.  Chairman 
 General  Mobs  Corporation 

 JOSEPH  J.  REILLY,  JR. 
 Past  President 
 Mwallty  In  Media,  inc. 

 HON.  WIU_  IAM  E.  SIMON 
 Chairman,  Simon  &  Sax 

 k 
 ,  I   
 1 

 x  March  14,200O 

 Magalie  Roman  Salas 
 Commission  Secretary 
 Offke  of  the  Secretary 
 Federal  Communications  Commission 
 445  Twelfth  Street,  S.  W.,  TW-  A325 
 Washington,  D.  C.  20554 

 Dear  Ms.  Salas: 
 Enclosed  please  an  original  and  nine  copies  of  the  Formal  Comments  of 
 Morality  in  Media,  In  the  Matter  of  P  t  Obligations  of  TV 
 Broadcast  Licensees,  MM  Docket  No  ese  comments  are  submitted 
 in  response  to  a  FCC  Notice  of  Inquiry,  FCC  99-  390.  Please  distribute  a  copy  to 
 each  of  the  Commissioners. 

 Please  note  that  copies  of  these  comments  have  also  been  sent  on 
 diskette  to  Wanda  Hardy,  Paralegal  Specialist,  Mass  Media  Bureau,  Policy  and 
 Rules  Division;  and  to  International  Transcription  Service,  Inc. 

 PJM/  lsh 
 General  Counsel 

 -  __---.-.  I.-__  l_...  - 
1
 DQCKET  FILE  COPYORIGINAL  i 
 Before  the  Federal  Communications  Commission 

 Washington,  D.  C.  20554  c 

 In  the  Matter  of  Public  Interest  Obligations  i  MM  Docket  No.  99-  360 
 of  TV  Broadcast  Licensees  1  - 

 COMMENTS  OF  MORALITY  IN  MEDIA 
 The  Notice  of  Inquiry  seeks  comment  (1)  On  how  broadcasters  can  best  serve  the  public  interest  during  and  after  the  transition  to 
 digital  technology  (2)  How  broadcasters  could  better  serve  their  communities  of  license  and  finally  (3)  Other  proposals  that  would 
 serve  the  public  interest.  Morality  In  Media,  in  these  comments,  suggests  that  the  present  Kingdom  of  T.  V.  Broadcasting  is  not 
 oriented  to  serving  the  public  interest  in  the  Realm  of  decent  programming  nor  does  the  Federal  Communications  Commission  (FCC) 
 serve  the  public  interest  by  its  present  regulatory  approach. 

 I.  The  Public  Interest  Requirement  of  Punishing  Indecent  Programming  on 
 Broadcast  TV  is  Mandated  By  Congress 
 As  the  NO1  notes,  currently,  broadcasters  must  comply  with  a  number  of  affirmative  public  interest  programming  and  service 
 obligations..  Among  these,  says  the  NOI,  "Broadcasters  are  prohibited  from  airing  programming  that  is  obscene,  and  restricted 
 from  programming  that  is  "indecent"  during  certain  times  of  the  day"  (quoting  18  U.  S.  C.  1464  and  47  CFR  Section  73.3999). 

 In  fact,  the  FCC  has  for  decades  recognized  that  compliance  with  18  U.  S.  C.  1464  is  integral  to  a  licensee's  obligation  to  serve 
 the  public  interest.  If  we  turn  to  Federal  Communications  Commission  v.  Pacifica  Foundation.  ,  438  U.  S.  726  (1978),  we  see  that 
 the  Commission  found  a  power  to  regulate  indecent  broadcasting  not  only  in  the  specific  prohibition  of  18  U.  S.  C.  1464  but  also  in  47 
 U.  S.  C.  303(  g)  which,  in  the  words  of  the  Pacifica  Court  (at  731): 
 "requires  the  Commission  to  'encourage  the  larger  and  more  effective  use  of  radio  in  the  public  interest.  '" 

 It  is  the  position  of  Morality  In  Media,  and  the  main  theme  of  these  Comments,  that  in  the  critical  matter  of  broadcast  indecency, 
 the  FCC  has  failed  in  meeting  its  obligation  to  regulate  television  licensees  in  the  public  interest  and  has  not  kept  faith  with  the 
 American  public  to  protect  them  from  this  evil. 
 We  say  this  for  the  following  two  reasons: 
2
 1.  Enforcement  of  the  broadcast  indecency  law  in  general  is  obviously  not  a  priority  with  the  current  Commission;  and 
 with  respect  to  television  licensees,  the  FCC  "policy"  for  the  past  two  decades  would  appear  to  be  "see  no  evil, 
 hear  no  evil  and  think  no  evil." 
 2.  The  FCC's  requirement  that  a  concerned  member  of  the  public  must  produce  a  tape  or  transcript  of  the  indecent 
 programming,  combined  with  the  FCC's  refusal: 
 *  to  request  a  tape  or  transcript  from  a  licensee; 
 *  to  use  its  subpoena  power  to  obtain  a  tape;  * 

 to  initiate  an  inquiry  on  its  own  motion;  *  to  monitor  programming  on  its  own  and  make  tapes  as 

 evidence  of  violations;  and  *  to  require  licensees  to  make  tapes  of  programs  and 
 provide  tapes  to  the  FCC  upon  request 
 virtually  ensures  that  18  U.  S.  C.  1464  and  47  CFR  73.3999  will  not  be  effectively  enforced  in  general  and,  in 
 particular,  against  television  licensees. 

 II.  The  Indecency  Law  is  Constantly  Being  Violated  by  Broadcast  TV  Stations 
 The  word  "Indecent",  as  used  in  18  U.  S.  C.  1464,  was  defined  by  the  United  States  Supreme  Court  in  the  Pacifica  case,  when  is  said: 
 "The  normal  definition  of  'indecent'  merely  refers  to  nonconformance  with  accepted  standards  of  morality". 
 [Underline  added] 
 The  FCC,  in  the  Pacifica  proceeding  (and  as  later  modified),  adopted  a  sub-  genus  of  the  indecency  definition  for  purposes  of  47 
 CFR  73.3999,  which  did  not  exhaust  the  perimeters  of  the  Supreme  Court  definition,  reading  as  follows: 

 "Language  or  material  that,  in  context,  depicts  or  describes,  in  terms  patently  offensive  as  measured  by 
 contemporary  community  standards  for  the  broadcast  medium,  sexual  or  excretory  organs  or  activities".  (See 
 Media  Bureau  Publication  8310-  100). 
 It  is  also  clear  that  the  1st  and  3rd  prongs  of  the  Miller  test,  viz.  prurient  appeal  and  serious  value,  are  not  part  of  either 
 the  Supreme  Court  definition  or  the  FCC  approach. 
 Material  that  is  indecent,  even  under  the  FCC  restrictive  use  of  that  term,  is  so  prevalent  on  broadcast  TV  that  the  FCC  can 
 candidly  take  administrative  notice  of  that  fact.  Nevertheless,  we 

 2 
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 will  quote  from  others  who  have  documented  its  existence. 
 On  August  31,  1999,  the  Parents  Television  Council  released  a  "Special  Report"  entitled,  "The  Family  Hour:  Worse  Than  Ever  and 
 Headed  for  New  Lows."  It  reads  in  part  as  follows: 
 "At  the  close  of  the  century  that  ushered  in  TV,  the  medium's  early  promise  has  been  erased  by  the  rapid 
 degeneration  of...  program  content.  Today,  even  shows  airing  in  the  earliest  prime  time  hour,  are  sexually 
 explicit,  vulgar  and  violent.  Further,  all  indications  are  that,  despite  the  growing  consensus  regarding  the 
 media's  influence  on  behavior-  especially  among  the  young-  this  trend-  is  not  only  continuing,  but  accelerating". 

 The  PTC  Report  continues: 
 "The  study  reviews  broadcast  network  programming  that  aired  between  8  and  9  p.  m.  eastern  time  during  a  two  week 
 period  in  May  1999  coinciding  with  the  'sweeps'  weeks..  -Among  statistical  highlights  of  the  study: 

 "In  just  a  year  and  a  half  since  the  PTC's  last  study  of  the  family  hour,  the  amount  of 
 objectionable  material  in  every  category--  foul  language,  references  to  sexual  activity,  and 
 depictions  of  violence--  has  risen  significantly. 
 "The  combined  per-  hour  average  of  objectionable  content  has  risen  75%,  to  a  rate  of  nearly  seven 
 incidences  per  hour  of  programming. 
 "Among  the  networks,  Fox  was  the  clear  leader  in  frequency  of  offensive  material,  with  a  average  of 
 11  instances  per  hour,  while  100%  of  its  shows  during  the  family  hour  contained  offensive  elements. 
 NBC  with  9.63  instances  per  hour,  was  the  second  most  offensive  network  overall,  while  CBS  (3.62  per 
 hour)  was  the  least  offensive... 
 "References  to  sex  acts  during  the  family  hour  have  increased  dramatically  --  by  77%--  in  the  past  year  and 
 a  half.  Fox  led  with  an  average  of  6.8  references  per  hour,  while  NBC  came  in  a  close  second  with  6.38 
 references  per  hour.  [Underline  added] 
 "More  than  two  thirds  of  shows  (68%)  in  the  family  hour  contained  sexual  material. 

 "Foul  language  reached  an  average  of  1.44  instances  each  hour,  a  jump  of  58%." 

 3 
4
 The  PTC  Report  further  states: 
 "The  PTC  maintained  its  traditionally  high  threshold  for  characterizing  material  as  sexual  for  terms  of  this 
 study.  Activities  or  dialogue  had  to  be  directly  and  manifestly  related  to  genital  sexual  activity  to  be 
 included.  In  other  words,  allusions  to  actual  sexual  activity  or  arousal,  past,  present  or  future  or  sex 
 organs  had  to  be  involved  to  be  clarified  as  'sexual.  '  Other  sex  related  activities  not  directly  referencing 
 actual  sexual  conduct,  such  as  kissing,  flirtation  and  ambiguous  suggestiveness,  are  not  included..  .Regarding 
 profanity...  words  like  'butt,  '  'damn'  and  'hell'  are  so  common  that  they  are  not  counted  in  the  PTC's  studies 
 calculating  foul  language  on  TV."  [Underline  added] 
 The  PTC  study  gives  us  examples  of  sexual  material  and  sexual  content.  These  examples  are  attached  as  Exhibit  No.  1. 

 III.  FCC  Policv  of  Recruirincr  Dismissal  of  Indecency  Complaints  as  'Defective' 
 Unless  Accompanied  by  a  Tape  or  Transcript  of  Proqranminq  Violates  Letter  and  Spirit 
 of  18  U.  S.  C.  1464  and  47  U.  S.  C.  303(  s). 
 There  is  nothing  in  these  statues  that  anticipates,  suggests  or  requires  that  the  onus  for  enforcing  the  Broadcast  Indecency  law 
 fall  on  the  ordinary  citizen  --  and  not  the  FCC.  But  this  is  the  net  effect-  of  the  FCC's  requirement  that  an  ordinary  citizen  produce 
 the  evidence  that  the  indecency  law  has  been  violated  before  the  FCC  will  investigate  a  well  founded,  articulate  complaint.  Contrary  to 
 its  indecency  enforcement  policy  in  the  1970's,  the  FCC  refuses  to  request  a-  tape  of  a  program  from  a  licensee,  to  initiate  inquiries 
 on  its  own  motion  and  to  monitor  persistent  violators. 
 This  is,  in  our  opinion,  a  clear  abdication  of  the  responsibility  placed  on  the  FCC  by  Congress  to  enforce  18  U.  S.  C. 
 1464  and  47  U.  S.  C.  303(  g);  and,  as  a  consequence  of  this  policy,  broadcast  TV  standards  continue  on  their  downward  spiral  -- 
 cheapening  the  quality  of  life  for  all  Americans;  causing  untold  grief  to  adults  unwillingly  subjected  to  indecency  in  the  privacy  of 
 their  homes;  and  adversely  affecting  our  nation's  youth. 
 Much  of  the  blame  for  this  downward  spiral  falls  on  the  TV 
 Networks  for  pursuing  high  ratings  with  little  sense  of  their  responsibility  to  serve  the  public  interest.  Much  of  the  blame  also 

 falls  on  the  FCC  for  what  can  be  clearly  labeled  as  a  "Net  Effect  Non-  Enforcement"  Policy. 

 AS  previously  indicated,  a  looming  obstacle  to  effective 

 4  .._  __..  -_^  _...  ..  .._  ..,-  ---.^  .~--_-  ---- 
5
 enforcement  of  the  broadcast  indecency  law  is  the  FCC  policy  of  requiring  viewers  to  provided  a  tape  or  transcript.  Very  few 
 viewers  who  make  complaints  are  in  a  position  to  submit  a  tape  or  transcript  of  the  program  --  because  most  viewers  are  surprised  by 
 the  assault  and  are  not  taping  the  program.  The  Pacifica  Court  itself  recognized  that  these  assaults  on  decency  occur  unexpectedly, 
 when  it  said  at  726  U.  S.  749: 
 "Because  the  broadcast  audience  is  constantly  tuning  in  and  tuning  out,  prior  warnings  cannot  completely  protect  the 
 listener  or  viewer  from  unexpected  program  content".  [Underline  added] 

 Notwithstanding  this  clear,  unambiguous  statement  by  the  Supreme  Court,  the  FCC  persists  in  requiring  viewers  to  set  up  a 
 tape  in  advance  of  any  knowledge  that  he  or  she  will  be  assaulted  by  the  program  content.  This  is  an  unreasonable  burden  mandated  by  the 
 FCC  Policy.  In  other  words  the  FCC  wants  the  public  to  do  much  of  the  job  that  Congress  assigned  to  the  FCC. 

 In  most  cases  tapes  of  TV  programs  --  and,  in  particular,  tapes  of  entertainment  programs  (which  are  often  syndicated)  --  do  exist; 
 and  the  refusal  of  the  FCC  to  take  steps  that  are  within  its  powers,  to  obtain  a  tape,  even  when  it  possesses  information  indicating  a 
 probable  violation  of  law,  is  purely  arbitrary. 
 It  is  not  the  position  of  Morality  in  Media  that  the  FCC  should  investigate  every  complaint  about  profanity,  sex  or  excretion,  but 
 the  FCC's  refusal  to  investigate  complaints  of  obvious  merit,  simply  because  the-  complainant  was  unable  to  provide  a  tape  or  transcript, 
 does  not  fulfill  the  Congressional  mandate. 

 Iv.  When  'Should'  Really  Means  'Must' 
 The  official  FCC  indecency  enforcement  policy,  as  it  appears  on  the  FCC  website  (www.  fcc.  gov/  mmb/  enf/  indecl.  html),  reads: 

 "Complaints  should  be  directed  to  the  Federal  Communications  Commission...  and  should  include:  (1)  a  tape  or  transcript  of 
 the  program  or  of  significant  excerpts  (2)  the  date  and  time  of  the  broadcast,  and  (3)  the  call  siqn  of  the  station  involved. 
 [Underline  added] 
 On  its  face,  this  statement  appears  reasonable.  The  words  "should  include"  imply  that  the  complainant  should,  when  possible, 

 supply  the  requested  information.  But  in  most  cases,  viewers  aren't  taping  the  program;  and  licensees  seldom,  if  ever,  voluntarily 
 provide  tapes  to  irate  viewers. 
 As  far  as  we  know  (or  can  determine),  however,  few,  if  any, 
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 complaints  unaccompanied  by  a  tape  or  transcript  "of  the  program"  or  a  tape  or  transcript  "of  significant  excerpts"  will  be  entertained. 
 In  fact,  our  own  experience,  combined  with  examination  of  the  commentators,  indicates  that  a  tape  or  transcript  is  a  sine  qua  non 
 and  that  for  all  practical  purposes,  should  in  the  policy,  really  means  must. 

 On  October  26,  1989,  the  FCC  issued  a  its  action  on  95  indecency  complaints.  The 
 "Fourteen  complaints...  were  dismissed 
 News  release  announcing  release  said  in  part: 
 as  defective,  because  they  lacked  certain  elements  required  to  make  a  prima  facie 
 case  of  indecency  (i.  e.,  identification  of  station,  date  and  time  the  allegedly  indecent  material  was  broadcast,  or  a  tape, 
 transcript  of  significant  excerpt  of  the  material)."  [Underline  added] 

 Reporting  on  the  disposal  of  the  95  complaints,  Broadcasting  magazine  ("  How  Indecency  Process  Works  at  FCC,"  10/  30/  89)  wrote: 
 "The  Commission's  release  of  the  material  associated  with  the  enforcement  actions  demonstrates  the  determination  of 
 complainants  to  get  the  commission's  attention.  They  identify  the  station,  give  the  date  and  time  of  the  material  and  a 
 transcript  or  tape  of  the  offending  material.  The  staff  said  complaints  against  14  stations  were  dismissed  because  they 
 failed  to  provide  that  information."  [Underline  added] 
 In  the  March  2,  1992  issue  of  Broadcasting  magazine,  we  find  the  following  in  an  article  by  Harry  Jesse11  ("  FCC  Puts  Broadcasters 
 on  Notice  for  Indecency"): 
 "The  FCC  receives  thousands  of  complaints  each  year  from  viewers  and  listeners,  but  considers  only  the  relative  handful 
 each  month  that  are  substantiated  by  tapes  or  transcripts."  [Underline  added]. 

 In  the  August  31,  1992  issue  of  Broadcasting,  we  find  the  following  in  an  article,  "How  Indecency  Process  Works  at  FCC:" 
 "It  all  starts  in  the  [Mass  Media]  bureau  with  Tom  Winkler,  an  investigator  in  the  complaints  and  investigations  branch  of  the 
 enforcement  division.  Whether  any  one  of  the  hundreds  of  indecency  complaints  pour  into  the  FCC  each  year  results  in  an 
 investigation  or  fine  probably  has  more  to  do  with  the  way  Winkler  feels  about  it  than  anything  else.  Ensconced  in  a 

 crowded  eighth-  floor  office  in  the  FCC  annex  at  2025  M  Street  in  Washington,  Winkler  makes  the  first  cut,  sorting  through 
 'substantiated'  complaints  (those  supported  by  a  tape  or  some  sort  of  transcript)  and  deciding  which  should  be  dismissed  and 
 which  may  merit  action."  [Underline  added] 

 6 
 _  _  .-  ..  I  .__.  --._  .-_"  _  ___...  -.-.._  ^  x.---__--  I--._-  I.-  -.-  _  .-- 
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 In  a  study  reported  in  the  Fed.  Comm.  Law  Jrnl.  (Milagros  Rivera-  Sanchez,  "How  Far  is  Too  Far?  Line  Between  'Offensive'  and 
 'Indecent'  Speech,"  Vo1.49,  No.  2,  March  1997)  the  author  describes  the  FCC's  "Complaint  Investigation  Process'I  in  part  as  follows: 

 "The  FCC  requires  that  a  complaint  include  the  station's  call  letters,  the  date  and  time  of  the  broadcast,  and  either  a  copy 
 of  the  program  or  a  partial  transcript...  If  the  complaint  lacks  any  of  the  elements,  the  commission  usually  asks  the 
 complainant  to  SUPPlY  the  missing  information.  If  the  complainant  is  unable  to  do  so,  FCC  staff  dismisses  the 
 complaint  as  defective"  '.  {underlining  added} 
 Morality  In  Media  doubts  that  the  FCC  "usually  asks  the  complainant  to  supply  the  missing  information."  In  February  1996 
 MIM  made  a  detailed  indecency  complaint,  unaccompanied  by  a  tape  or  transcript,  and  in  return  received  a  copy  of  the  FCC  enforcement 
 policy  and  a  letter  suggesting  that  by  reading  it  we  would  understand  "why  a  commission  inquiry  would  not  be  warranted."  We 
 have,  in  our  file,  similar  rejection  letters  to  others. 
 The  upshot  of  the  FCC  policy  is  that  thousands  of  complaints  each  year  go  uninvestigated  to  the  detriment  of  the  public.  Such  a 
 policy  gives  a  green  light  to  those  in  the  industry  who  continue  to  "push  the  envelope".  This  policy  is  ineffective.  The  FCC  is  in 
 part  a  law  enforcement  agency  and  should  adopt  an  approach  that  will  effectively  and  vigorously  accomplish  that  purpose.  The  present 
 policy  fails  to  do.  It  is  just  not  working. 
 We  suggest  that  the  FCC  recognize  that  there  is  a  serious  problem  and  that  its  present  policy  is  outmoded.  Things  are  moving 
 fast  and  furious.  Old  approaches  are  no  longer  sufficient  in  this  rapidly  changing  telecommunications  age.  We  refer  the  Commission  to 
 the  Denver  Area  Consortium  case,  518  U.  S.  727  (1996)  where  at  page  742  the  Supreme  Court  (quoting  Pacifica)  says: 

 "The  problems  of  regulation  are  rendered  more  difficult  because  the  broadcast  industry  is  dynamic  in  terms  of  technological 
 change,  solutions  adequate  a  decade  ago  are  not  necessarily  SO  now..." 

 We  would  also  refer  the  Commission  to  its  own  Second  Report  and  Order,  Deregulation  of  Radio,  96  FCC2d  930  (1984)],  in  which  the 
 Commission  attempted  to  eliminate  the  requirement  that  broadcast  licensees  maintain  program  logs  --  reasoning  in  part  that 
 petitioners  to  deny  in  license  renewal  proceedings.  .  .  : 
 "Could  provide  their  own  documentation  by  monitoring  the  service  of  the  station.  Any  need  for  such  monitoring  would 
 impose  some  burden  on  petitioners...  However,  if  experience  in  the  future  indicates  that  the  public  interest  would  be  served 
 by  easing  the  documentation  burdens  of  petitioners...,  we  can 
8
 revisit  this  issue"  (at  940-  941,  par.  26).  [Underline  added] 
 Morality  in  Media  asserts  that  the  time  is  long  overdue  for  the  Commission  to  ease  the  "documentation"  burden  that  it  has 
 unilaterally  imposed  on  ordinary  citizens  to  monitor  TV  programming  and  to  provide  the  FCC  with  tapes  or  transcripts.  The  time-  for 
 FCC  to  "revisit"  its  present  ineffective  policy  on  enforcement  the  broadcast  indecency  law  is  long,  long  overdue.  the  of 

 V.  The  FCC's  requirement  that  a  concerned  member  of  the 
 public  must  produce  a  tape  or  transcript  of  the  indecent  proqramming,  combined  with  the  FCC's  refusal  to 

 * 
 * 
 * 
 * 

 * 

 Request  a  tape  or  transcript  from  a  licensee;  Use  its  subpoena  power  to  obtain  a  tape; 
 Initiate  an  incruirv  on  its  own  motion:  Monitor  programming  on  its  own  and  make  tapes 
 evidence  of  violations;  and  Refusal  to  require  licensees  to  make,  maintain 
 provide  tapes  to  the  FCC  upon  request 

 as 
 and 

 virtually  ensures  that  18  U.  S.  C.  1464  and  47  CFR  73.3999  will  not  be  effectively  enforced  in  general  and,  in 
 particular,  aqainst  television  licensees. 
 As  previously  indicated,  Morality  In  Media  believes  that  the  refusal  to  entertain  complaints  which  are  of  obvious  merit,  unless 
 accompanied  by  a  tape  or  transcript,  does  not  comply  with  the  Congressional  mandate  to  enforce  the  broadcast  indecency  law  and  to 
 regulate  broadcast  TV  in  the  public  interest. 
 Combined  with  other  self-  imposed  impediments  to  enforcement  of  the  indecency  law,  the  current  FCC  enforcement  policy  virtually 
 ensures  that  few  if  any  TV  industry  violators  will  be  held  liable. 

 Refusal  to  request  tapes  from  licensees 
 Morality  in  Media  knows  of  no  statute  or  decided  case  that  prevents  the  FCC  from  requesting  a  tape  or  transcript  from  the 
 station.  Nor  is  it  aware  of  any  written  policy  that  the  FCC  will  not  request  a  tape  or  transcript  from  a  licensee.  But  Morality  in 
 Media  is  also  unaware  of  any  case  in  the  last  two  decades  in  which  the  FCC  has  requested  a  tape  or  transcript  in  order  to  investigate 
 an  indecency  complaint.  It  was  not  always  thus. 

 In  Pacifica,  the  FCC  received  a  complaint  from  a  citizen  who  was  riding  in  his  car.  The  written  complaint  was  not  accompanied  by 
 a  tape  or  transcript.  The  FCC  nevertheless  requested  that  the  licensee  "forward  a  recording  or  complete  transcript  of  the  program 

 8 
 -___--~  .  ..-  -- 
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 in  question."  (op  inion  and  Order,  Citizen  Complaint  Against  Pacifica  Foundation  Station  WBAI,  56  FCC2d  94  (1975)]. 
 Morality  in  Media  is  not  requesting  the  FCC  to  do  something  it  hasn't  done  before.  We  ask  the  FCC  to  return  to  its  prior  laudable 
 policy  of  requesting,  when  necessary,  tapes  or  transcripts. 
 We  note  that  in  the  United  Kingdom,  persons  who  feel  they  have  been  unfairly  treated  by  a  broadcast  may  make  complaints  to  the 
 Broadcasting  Complaints  Commission,  which  has  the  right  to  demand  a  recording  or  video  of  the  program  in  question. 

 We  also  note  that  according  to  the  FCC's  own  Mass  Media  Bureau  Publication  8310-  100,  FCC  and  Broadcasting  [Part  III,  5(  c)]:  "In 
 general,  licensees  are  not  required  to...  provide  to  the  general  public,  scripts,  tapes  or  summaries  of  material  broadcast."  When  a 
 licensee  possesses  the  only  tape  of  a  program,  only  the  FCC  will  normally  be  in  a  position  to  obtain  it. 

 Refusal  to  use  subpoena  power 
 Morality  in  Media  knows  of  no  statute  or  decided  case  that  prevents  the  FCC  from  using  its  subpoena  power  to  obtain  a  tape  or 
 transcript  in  an  indecency  inquiry.  Moreover,  we  believe  that  a  subpoena  can  be  directed  either  to  the  licensee  or  to  others. 

 The  Commission  has  broad  subpoena  power  which  is  codified  in  title  47  of  the  U.  S.  Code  at  section  409(  e).  It  is  axiomatic  that 
 the  Commission  can  subpoena  a  licensee  [see,  e.  g.,  Order,  Inquiry  into  Alleged  Broadcasts...  of  Obscene,  Indecent  or  Profane  Material 
 by  Licensees,  40  FCC2d  105  (1973)]  and  has  been  upheld  even  against  a  non-  licensee  third  party.  In  FCC  v.  Ralph  M.  Cohn,  Vice  President 
 and  General  Manager,  Screen  Gems,  Inc.,  et.  al.,  154  F.  Supp.  899,  at  906  (SDNY  1957)  we  find: 

 "This  power  is,  of  course,  not  confined  to  those  over  whom  it  may  exercise  regulatory  jurisdiction,  but  to  any  persons  from 
 whom  it  can  obtain  information  and  documents  which  are  relevant  and  material  to  its  inquiry". 

 It  is  worthy  of  note  that  if  a  licensee  or  other  "person"  is  a  corporation,  the  privilege  afforded  by  the  Fifth  Amendment  to  refuse 
 to  respond  and  testify  is  not  available. 
 In  an  Order  released  October  27,  1999  [In  the  Matter  of  Establishment  of  the  Enforcement  Bureau  and  Consumer  Information 

 Bureau,  FCC  99-  172,  at  p.  71,  the  Commission  specified  that  one  function  of  the  Enforcement  Bureau  is  to: 

 Identify  and  analyze  complaint  information,  conduct  investigations...  and  collect  information,  including  pursuant  to 

 9 
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 sections...  409(  e)-(  k)  of  the  Communications  Act,  in  connection  with  complaints,  on  its  own  initiative  or  upon  request  of 
 another  Bureau  or  Office.  [Underline  added] 

 Refusal  to  monitor  programminq 
 The  FCC's  current  indecency  enforcement  policy  sheet,  available  on  the  FCC's  web  site,  states  that  the  FCC  does  not  "independently 
 monitor  broadcasts  for  indecent  material." 
 Morality  in  Media  does  not  expect  the  FCC  to  monitor  every  broadcast  TV  program,  but  Morality  in  Media  is  unaware  of  any 
 constitutional  or  other  valid  reason  for  the  FCC  to  refuse  to  monitor  any  TV  program  --  no  matter  how  much  evidence  it  has  either 
 from  viewer  complaints  or  from  news  reports  or  studies  describing  the  sexual  content  or  vulgarity  in  a  particular  program  or  genre  of 
 program  (e.  g.,  daytime  soaps,  daytime  talk  shows,  professional  wrestling,  sitcoms  during  the  family  hour,  etc.). 

 The  FCC  did  not  always  refuse  to  monitor  any  programs.  In  fact,  Morality  in  Media  is  aware  of  two  cases  in  the  1970s  in  which 
 the  FCC  either  monitored  a  single  radio  station  or  several  radio  stations  for  possible  violations  of  the  broadcast  indecency  law: 

 Notice  of  Apparent  Liability,  Eastern  Education  Radio,  24  FCC2d  408,  at  n.  2  (1970)  ("  While  the  licensee  states  that  it  received 
 no  complaints...,  the  Commission  had  received  several...;  it  therefore  did  monitor  the  broadcast,  and  specifically  that  of 
 Januar-  y  4th.");  and 
 Opinion  and  Order,  Sonderling  Broadcasts  Corp,  41  FCC2d  777,  at  779  (1973)("  In  recent  months,  however,  the  Commission  has 
 received  increasing  numbers  of  complaints  alleging  that  broadcast  licensees...  have  presented  offensive  program 
 material.  A  frequent  subject  of  complaints  has  been  the  radio  format  known  in  the  trade  press  as  'topless  radio,  '...  In 
 reaction  to  these  complaints,  the  Chief  of  the  Complaints  and  Compliance  Division...  first  asked  the  Field  Engineering  Bureau 
 to  tape  several  programs  in  a  number  of  cities  in  which  the  incidence  of  complaints  was  high...  These  tapes  along  with 
 several  others  which  had  been  volunteered  to  the  Commission  by  the  complainants  provided  the  staff  with  approximately  61  hours 
 of  recorded  programs  from  eight  stations  around  the  country.  Attorneys  for  the  Complaints  and  Compliance  Division  reduced 
 the  61  hours  into  a  tape  of  about  22  minutes  playing  time.  The  staff..  -played  the  tape  for  the  Commission...  After  hearing  the 
 tapes,  the  Commission  instructed  the  staff  to  prepare  a  Notice  of  Apparent  Liability  for  violation  of  Section  1464  against 
 Sonderling  Broadcast  Corp."). 
 According  to  a  news  item  in  Broadcasting  &  Cable  ("  Kids  TV 

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 crackdown,"  5/  25/  98),  the  FCC's  Mass  Media  Bureau  announced  that: 
 [I]  t  is  going  to  start  watching  some  TV  to  ensure  that  stations  comply  with  FCC  limits  on  commercials  aired  during  children's 
 programming.  Regulators  say  a  review  of  current  license  renewal  applications  shows  that  26%  of  the  station's  have 
 exceeded  the  limit.  "This  level  of  noncompliance  is  unacceptable  and  must  be  remedied,"  the  Bureau  said  in  a  public 
 notice  [Released  5/  20/  981.  Plans  call  for  an  audit  program  of  unannounced,  off-  air  monitoring  of  commercial  stations  and 
 tabulations  of  commercials  aired  during  children's  programming. 
 If  the  FCC  can  now  monitor  programs  to  protect  children  against  too  many  ads,  it  can  now  monitor  to  protect  children  [and 
 unconsenting  adults]  from  programs  known  to  be  grossly  vulgar  or  to  include  explicit  sex  talk,  sexual  activity  or  nudity. 

 Refusal  to  initiate  inquiry  on  own  motion 
 The  official  FCC  indecency  enforcement  policy,  as  it  appears  on  the  FCC  website,  states  that  the  FCC's  "enforcement  actions  are 
 "based  on  documented  complaints  of  indecent  or  obscene  broadcasting  received  from  the  public."  [Underline  added] 

 The  Commission,  however,  is  not  required  to  wait  to  receive  the  perfect  complaint  from  an  ordinary  citizen  --  before  it  acts  to 
 investigate  for  possible  violations  of  the  indecency  law.  If  the  Commission  has  in  its  hands  a  meritorious  complaint  or  complaints  or 
 other  information  of  possible  violations  of  the  law,  it  can  begin  an  investigatibn  on  its  own  motion.  Section  403  of  the  Communications 
 Act  of  1934,  As  Amended,  states: 
 "The  Commission  shall  have  full  authority  and  power  at  any  time  to  institute  an  inquiry,  on  its  own  motion,  in  any  case  and  as 
 to  any  matter  or  thing  concerning  which  complaint  is  authorized  to  be  made...  or  relating  to  the  enforcement  of  any  provisions 
 of  this  Act...  [and]  shall  have  the  same  powers  and  authority  to  proceed  with  any  inquiry  instituted  on  its  own  motion  as  though 
 it  had  been  appealed  to  by  a  complaint." 
 In  the  1970's,  the  FCC,  in  response  to  "information  and  complaints  from  the  public  that  certain  broadcast  licensees...  may 

 have  broadcast  obscene,  indecent  or  profane  material"  instituted  an  inquiry,  on  its  "own  motion,"  to  determine  "whether  any  licensee, 
 permittee...  or  any  principal...  has  engaged  in  the  above-  described  practice"  [Order,  Inquiry  into  Alleged  Broadcasts...  of  Obscene, 
 Indecent  or  Profane  Material  by  Licensees,  40  FCC2d  105  (1973)]. 

 Refusal  to  require  licensees 

 11 
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 to  make,  maintain  and  provide  tapes  to  the  FCC  upon  request 
 We  direct  the  FCC  to  its  own  Mass  Media  Bureau  Publication  8310-  100,  "The  FCC  and  Broadcasting"  (Part  III,  5(  c)): 
 "When  a  station  broadcasts  a  personal  attack  or  a  political  editorial  endorsing  or  opposing  a  candidate  or  public  office  it 
 must  provide  a  script  or  tape  of  the  attack  or  editorial." 

 that  If  such  a  requirement  is  not  unconstitutional,  it  would  appear  a  similar  requirement  that  licensees  make,  maintain  and  provide  to  the  FCC,  upon  request,  scripts  or  tapes  of  broadcast  programming 
 containing  depictions  or  descriptions  of  sexual  or  excretory  activities  or  organs  would  also  not  be  unconstitutional. 

 The  justification  for  such  a  regulatory  requirement  can  be  found  in  the  obligation  of  the  FCC  to  efficiently  enforce  the 
 indecency  statute  and  regulation  and  in  its  public  interest  role.  It  is  obvious  that  such  a  regulatory  provision  need  not  and  should  not 
 encompass  every  TV  broadcast,  but  only  those  that  depict  or  describe  "sexual  or  excretory  organs  or  activities."  Tapes  would  only  have 
 to  be  maintained  by  the  licensee  for  a  reasonable  period  of  time  to  permit  the  FCC  to  act  on  an  indecency  complaint. 

 There  is  no  "censorship"  or  prior  restraint  because  the  FCC  would  not  request  the  material  until  after  publication  (See  e.  q., 
 Pacifica,  438  U.  S.  at  735-  738).  In  fact,  -in  Pacifica,  the  FCC  requested  a  copy  of  the  offending  programming  after  it  aired. 

 We  also  refer  the  Commission  to  its  Second  Report  and  Order,  Deregulation  of  Radio,  96  FCC2d  930  (1984),  vacated  and  remanded, 
 Office  of  Communications  of  United  Church  of  Christ,  779  F.  2d  702,  (D.  C.  Cir.  1985),  in  which  the  Commission  attempted  to  eliminate  the 
 requirement  that  licensees  maintain  program  logs  --  reasoning  in  part  that  citizen  groups  "could  provide  their  own  documentation  by 
 monitoring  the  service  of  the  station"  (96  FCC2d  at  940-  941).  The  D.  C.  Circuit  rejected  this  attempt  to  shift  the  burden  from 
 licensees  to  citizens  groups,  reasoning  that  the  Court  had  already  addressed  the  "burdensome  character"  of  requiring  citizens  to 
 monitor  programming  (779  F.  2d  at  710,  n-  10). 

 VI.  Requiring  Ordinary  Citizens  to  Make  a  Prima  Facie 
 Case  of  Indecency  Does  Not  Find  Favor  in  the  Law 

 On  October  26,  1989,  the  FCC  issued  a  News  release  announcing  its  action  on  95  indecency  complaints.  The  release  said  in  part: 

 "Fourteen  complaints...  were  dismissed  as  defective,  because  they  lacked  certain  elements  required  to  make  a  prima  facie 

 12  ,_..^  __  .____  ..__  _  -----___.  ,.  __"_  ll__.  I  ."--.-^-_  1--  p-  m. 
13
 case  of  indecency  (i.  e.,  identification  of  station,  date  and  time  the  allegedly  indecent  material  was  broadcast,  or  a  tape, 
 transcript  of  significant  excerpt  of  the  material)."  [Underline  added] 

 In  Monroe  Communications  v.  FCC,  900  F.  2d  351  (D.  C.  Cir.,  4/  10/  90),  the  Court  of  Appeals  ruled  that  the  FCC's  refusal  to 
 consider,  in  a  license  renewal  proceeding,  an  "ordinary"  citizen's  obscenity  complaint  because  it  did  not  set  forth  a  "prima  facie" 
 case  of  obscenity  was  "arbitrary."  Said  the  Court  (at  p.  359): 
 "[  Tlhe  Commission  acknowledged  that  it  had  received  some  contemporaneous  complaints...,  but  it  found  those  complaints 
 insufficiently  specific  to  warrant  further  investigation.  The  Commission  explained  that...  it  would  only  investigate 
 allegations  of  obscenity  that  alleged  sufficient  facts  about  a  specifically  identified  program  to  allow  the  Commission  to 
 determine  that  a  violation  may  have  occurred...  We  agree  that  the  Commission  should  not  be  required  to  investigate  every 
 generalized  complaint  alleging...  obscene  programming.  However,  to  require  ordinary  citizens  to...  set  forth  allegations 
 constituting  arbitrary...  [A]  zong  P  ~~~  acompf?~  i!~  ts  of  obscenity..  is  tchaeseCommission  declined-  to 
 consider...  was  a  timely  letter  from  a  resident  who  reported  being  shocked  to  see  a  broadcast  .  .  .  clearly  depicting  adults 
 engaged  in  sexual  acts.  The  letter  specified  the  date  and  time  of  the  broadcast...  To  ignore  this  complaint...,  without  at 
 least  learning  more  about  the  broadcast,  because  the  complaint  did  not  make  out  a  legally  sufficient  claim  of  obscenity  was 
 arbitrary.  [Underline  added] 
 In  an  FCC  proceeding  [Video  44  II,  3  FCC  Red  757,  at  760  n.  5  &  n.  6  (1988)]  leading  up  to  the  Monroe  case,  the  Commission  noted: 

 "In  order  to  initiate  an  investigation  into  a  possible  obscenity  violation,  Commission  practice  has  required  a  prima 
 facie  showing  by  a  complaining  party..  .We  follow  this  approach  in  our  enforcement  of  indecency...  violations." 

 VII.  The  Rating  System  Proposed  by  the  TV  Industry  and  Adopted  by  FCC  Should  be  Amended  to  Require 
 Clarification  of  the  Symbols  and  Disclosure  of  the  Meaning  of  the  Symbols  on  the  TV  Screen 

 Here  again  Morality  in  Media  is  concerned  with  the  cultural  decline  caused  by  the  Industry  practice  of  "Pushing  the  Envelope". 
 We  must  remember  that  the  rating  given  to  a  particular  program  is  not  determined  by  an  impartial  body.  It  is  determined  by  the 
 producer  and  not  even,  as  in  the  MPAA,  by  a  group  of  industry-  picked  parents.  This  is  unsatisfactory  because  the  temptation  exists  to 

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 give  a  rating  that  the  producer  thinks  will  either  attract  the  largest  audience  or  not  scare  off  sponsors.  The  FCC  should  reopen 
 its  original  inquiry  in  order  to  label  such  a  "be  your  own  judge  of  the  harm  to  children"  approach  unsatisfactory. 

 In  addition,  the  FCC  should  also  require  the  full  explanation  of  the  symbolism  to  appear  on  the  TV  screen  both  before  the  program 
 begins  and  after  breaks  for  sponsor  advertising.  We  say  this  because  a  parent  or  other  adult  cannot  judge  from  the  symbol  (e.  g., 
 PG-  14)  or  a  letter  following  (e.  g.,  PG-  14-  V)  what  can  be  shown  as  within  the  broad  perimeters  of  such  a  designation. 

 In  addition,  the  FCC  should  require  the  Industry  to  define  some  of  the  terms  used  to  describe  the  various  symbols/  letters.  In 
 elaboration  of  our  objections,  Morality  in  Media  examines  the  categories  as  submitted  by  the  TV  industry  to  the  FCC: 

 TV-  Y  ("  all  children"):  The  industry  tells  us,  "whether  animated  or  live-  action,  the  themes  and  elements  in  this 
 program  are  specifically  designed  for  a  very  young  audience,  including  children  from  ages  2-  6.  This  program  is  not  expected 
 to  frighten  younger  children."  The  difficulty  with  this  classification  is  that  it  is  not  further  explained  and 
 interpretation  will  vary  from  producer  to  producer.  Will  violence  be  depicted?  And  if  so,  is  it  animated  or  live?  What 
 are  the  criteria  by  which  "the  themes  and  elements"  are  selected?  Can  there  be  sexual  themes  in  the  TV-  Y  programming? 
 Can  there  be  vulgar  language?  This  should  not  be  left  to  speculation.  There  is  no  central  authority  making  a 
 determination  of  suitability  for  this  classification.  Without  parents  having  in  front  of  them  a  detailed  description  of  what 
 TV-  Y  programs  may  actually  portray,  they  are  at  the  mercy  of  an  interested  party's  purely  subjective  determination  that  it's 
 "Okay  for  Kids".  A  brief  description  of  any  potentially  inappropriate  or  disturbing  scenes  or  a  warranty  by  the 
 programmer  that  "this  program  contains  no  violence  [specify  type  t.  9  I,  no  sexual  situations  or  activity  and  no  vulgar  or 
 profane  language"  would  help  solve  the  parental  dilemma  of  wondering  what  really  does  this  program  contain?? 

 TV-~  7  ("  older  children"),  Tv-  y7-  Fv  ("  fantasy  violence"):  This  rating  suffers  from  the  same  difficulties  as  above.  It  is  even 
 more  subjective  since  it  talks  about  "mild  fantasy  or  comedic  violence,"  which  is  not  defined.  We  need  more  detail.  The 
 same  is  true  of  the  phrase  "may  frighten  children  under  the  age  of  7."  Why  will  it  frighten  children  under  the  age  of  7?  What 
 objective  standards  are  they  going  to  use  to  make  that  determination?  The  criteria  are  vague  and  not  sufficiently 
 informative.  The  purpose  of  the  rating  system  is  to  give  parents  the  ability  to  choose  or  block.  The  Industry  should 
 also  be  required,  if  such  is  the  case,  to  put  up  on  the  TV  screen,  the  words  "no  sexual  situations  or  activity  and  no 

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 vulgar  or  profane  language." 
 TV-  G  ("  general  audience  --  Most  parents  would  find  the  program  suitable  for  all  ages"): 
 Who  in  the  Industry  is  competent  to  determine  what  llmost  parents"  would  find??  Give  parents 

 objective  standards  so  they  can  make  that  determination.  The  further  description  of  thiscategory  as  "little  or  no  violence, 
 no  strong  language  and  little  or  no  sexual  dialogue  or  situations"  leaves  a  hole  in  the  ratings  big  enough  to  drive  a 
 truck  through.  The  words  "little"  and  "strong"  give  those  in  the  industry  who  want  to  "push  the  envelope"  the  ability  to 
 present  explosive  imitative  violence,  raw  language  and  explicit  sex  talk  or  behavior  and  still  have  the  benefit  of  the  enhanced 
 Nielson  ratings  that  this  category  brings  and  the  sponsorship  of  companies  that  might  avoid  the  program  if  they  knew  the 
 facts.  This  category  should  be  modified  to  require  specific  descriptions  of  the  types  of  violence,  language  and  sex  talk 
 and  situations  that  may  be  included  on  a  screen  legend  at  least  at  the  beginning  of  the  program. 

 TV-  PG  ("  parental  guidance  suggested  --  .  ..  contains  material  that  parents  may  find 
 unsuitable  for  younger  children"  [underline  added]):  Given  the  fact  that  the  words  "older 

 children,"  as  used  in  the  TV-~  7  category,  mean  children  7  and  above,  do  the  words  "younger  children,"  as  used  here,  mean 
 children  under  7.  If  so,  how  did  the  Industry  determine  that  all  or  most  parents  would  find  programming  suitable  for 
 children  7  and  above  that  contains  "one  or  more  of  the  following:  moderate  violence  (VI,  some  sexual  scenes(  S), 
 infrequent  coarse  language  (L)  or  some  suggestive  dialogue  (D)."  And  what  do  the  undefined  words  "moderate,"  "some," 
 "infrequent,"  "sexual  scenes,"  "course  language"  and  "suggestive  dialogue"  mean?  Aside  from  the  fact  that  many 
 parents  would  find  such  programming  unsuitable  for  children  7  and  above,  the  FCC  should  require  that  the  nature  of  what  is  to 
 be  shown  be  described  with  greater  specificity.  This  category  assumes  that  parents  know  that  TV-  PG  means  that  the  program  may 
 contain  sexual  scenes,  coarse  language  and/  or  suggestive  dialogue.  Producers  who  wish  to  push  the  envelope  will  find 
 adequate  room  to  hide  behind  the  TV-  X  symbol. 
 TV-  14  ("  This  program  contains  some  material  that  many  parents  would  find  unsuitable  for  children  under  14  years  of  age"): 

 Here  again  the  Industry  (not  parents)  has  made  a  decision  to  draw  a  line  at  age  14  (really  age  13).  This  is  unacceptable. 
 They  suggest  in  this  rating  that  children  over  13  can  suitably  watch  (unattended)  programs  containing  "intense  violence", 
 llintense  sexual  situations,"  "strong  coarse  language"  or  "intensely  suggestive  dialogue".  This  is  an  affront  to 
 American  parents.  Much  of  this  material  is  unsuitable  for  children  ages  14-  17.  It  seems  to  describe  what  in  some  cases 
 could  be  "indecent"  under  18  USC  1464.  We  propose  that  the  FCC 

 . 
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 reopen  the  inquiry  and  reject  this  category,  as  currently  defined,  as  against  public  policy.  In  addition,  this  category 
 is  wide  open  and  will  in  effect  become  the  "R"  rated  category  (i.  e.,  TV-  Adult)  that  is  often  obscene  for  minors. 
 Furthermore,  the  words  "intense",  "strong,"  "coarse"  and  "suggestive"  are  not  objectively  defined  and  leave  room  for 
 irresponsible  programmers  to  show  whatever  they  want. 
 TV-  MA  ("  specifically  designed  to  be  viewed  by  adults  and  therefore  may  be  unsuitable  for  children  under  17"):  We 
 suggest  that  the  Commission  reopen  the  inquiry  and  flatly  reject  this  category.  You  will  recall  that  the  word  "indecent" 
 does  not  require  the  Commission  to  evaluate  the  program  as  a  whole  or  to  find  that  it  lacks  serious  literary,  artistic, 
 political  or  scientific  value.  What  the  Industry  appears  to  be  proposing  is  that  they  be  permitted  to  show  "indecent" 
 material,  provided  they  label  it  "TV-  MA".  We  analogize  this  category  to  "X"  or  "NC-  17"  rated  and  the  Commission  should 
 recognize  it  as  such.  Again  the  Industry  has  not  defined  the  words  "graphic,"  "explicit"  or  "crude"  and  practically  admits 
 in  the  word  "indecent"  that  they  intend  to  test  the  limit  of  the  statute  and  the  patience  of  the  FCC. 

 VIII.  'V-  Chip'  Is  Not  a  Substitute  for  Indecency  Law 
 In  response  to  a  February  1998  Wirthlin  survey  question,  "DO 
 YOU  think  the  1~  1  industry  rating  system  is  an  effective  alternative  to  enforcing  the  broadcast  indecency  laws  or  do  you 

 think  that  the  FCC  needs  to  work  harder  to  enforce  the  existing  indecency  laws?",  59%  of  adult  Americans  replied:  FCC  WORK  m. 

 We  think  that's  good  advice,  because  while  the  "V-  chip"  may  help  some  parents,  others  will  not  use  it  at  all  or  will  not  use  it 
 wisely.  As  former  FCC  Commissioner  Andrew  Barrett  said:  "The...  V-  chip  is  great  for  responsible  parents,  but  it  will  [not]  have  any 
 significant  influence  with  kids  whose  parents  are  not  responsible"  ("  Parents'  Responsibility,"  Broadcasting  &  Cable,  8/  26/  96,  at  24). 

 As  the  Pacifica  Court  indicated  (438  U.  S.  at  749);  the  government  has  an  independent  interest  in  the  "well  being  of  its 
 youth,"  apart  from  its  valid  interest  in  assisting  responsible 
 parents  claim  to  authority  in  their  own  household.  The  V-  chip  clearly  furthers  the  latter  interest  --  but  not  always  the  former. 

 Furthermore,  very  few  TVs  now  in  U.  S.  homes  are  equipped  with  a  V-  chip;  and,  according  to  Broadcasting  &  Cable  magazine  ("  The  V-  chip 
 gets  a  ho-  hum  reception  from  consumers,"  Z/  7/  2000),  "few  customers  have  shown  any  interest"  in  the  V-  chip. 

 And,  according  to  the  TV  Ownership  Survey,  conducted  in  1996  by 

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 Statistical  Research,  71%  of  U.  S.  homes  also  have  two  or  more  TV  sets.  Does  the  FCC  really  expect  most  parents  to  rush  out  in  the 
 near  future  and  buy  two  or  more  TV  sets  with  V-  chips?? 
 But  even  if  every  parent  soon  replaces  every  TV  in  the  home,  uses  the  V-  chip  and  uses  it  wisely,  and  ensures  that  children  never 
 watch  TV  outside  the  home  --  there  is  still  a  problem  for  parents. 
 As  noted  above,  it  is  TV  producers  who  apply  the  vague  "age-  based"  ratings  to  determine  whether  a  program  is  appropriate  for  a 
 particular  age  group.  Since  broadcast  TV  programs  seldom  get  a  TV-  MA  rating,  these  producers  apparently  think  that  almost  every 
 program  is  suitable  for  children  ages  14  and  above.  Since  most  prime  time  broadcast  programs  are  rated  PG,  they  apparently  also 
 think  that  most  prime  time  programs  are  suitable  for  all  children  ages  7  and  above.  We  don't  think  most  parents  would  agree. 

 There  is  yet  another  problem  with  the  TV  rating  system,  for  those  who  argue  that  it  is  an  adequate  substitute  for  enforcement  of 
 the  broadcast  indecency  law.  The  rating  system  is  designed  for  children,  but  in  Pacifica  (438  U.  S.  at  749-  750),  the  Supreme  Court 
 pointed  out  that  the  indecency  law  has  another  purpose: 
 Patently  offensive,  indecent  material  presented  over  the  airwaves  confronts  the  citizen,  not  only  in  public,  but  also  in 
 the  home,  where  the  individual's  right  to  be  left  alone  plainly  outweighs  the  First  Amendment  rights  of  an  intruder.  Because 
 the  broadcast  audience  is  constantly  tuning  in  and  out  prior  warnings  cannot  completely  protect  the  listener  or  viewer  from 
 unexpected  program  content.  To  say  that  one  may  avoid  further  offense  by  turning  off  the  radio  when  he  hears  indecent 
 language  is  like  saying  that  the  remedy  for  an  assault  is  to  run  away  after  the  first  blow. 

 The  TV  rating  system  is  not  intended  to  protect  adults,  and  it  is  not  based  on  the  "indecency"  standard.  Even  if  a  rating  was 
 based  on  the  indecency  standard,  the  FCC  has  no  authority  to  delegate  enforcement  of  the  indecency  law  to  a  nongovernmental 
 agency  (i.  e.,  the  TV  industry)  accountable  to  no  one  but  itself. 

 IX.  CONCLUSIONS 
 The  precipitous  decline  of  standards  of  decency  on  broadcast  TV 
 has  cheapened  the  quality  of  life  for  all  Americans;  caused  untold  grief  to  adults  unwillingly  subjected  to  indecency  in  the  privacy  of 

 their  homes;  and  adversely  affected  our  nation's  youth. 
 Much  of  the  blame  for  the  downward  spiral  falls  on  the  TV  networks,  for  pursuing  high  ratings  with  little  sense  of  their 
 responsibility  to  serve  the  public  interest.  Much  of  the  blame  also 

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 falls  on  the  FCC,  for  failing  to  enforce  the  broadcast  indecency  law  [18  USC  14641  against  TV  stations. 
 A  big  part  of  the  FCC's  problem  is  its  policy  of  requiring  viewers  who  complain  about  indecent  programming  to  provide  a  tape  or 
 transcript  of  the  program.  Very  few  complaints  about  TV  indecency  include  tapes,  because  most  viewers  who  make  complaints  were 
 surprised  by  the  assault  and  weren't  taping  the  program. 
 In  most  cases,  however,  tapes  of  TV  programs  exist;  and  the  FCC's  refusal  to  take  the  steps  that  are  within  its  power  to  obtain 
 a  tape,  even  when  it  possesses  information  indicating  that  the  law  has  or  is  being  violated,  is  arbitrary.  The  FCC  can  also: 

 *  Initiate  an  inquiry  on  its  own  motion; 
 *  Monitor  programming  on  its  own;  and  * 

 Require  licensees  to  make,  maintain  and  provide  tapes. 

 It  is  not  Morality  in  Media's  contention  that  every  profanity  or  mention  of  sex  on  TV  is  indecent,  but  it  stretches  the 
 imagination  to  believe  that  little  if  any  of  the  vulgarity,  adult  sex  talk,  and  promiscuous  sexuality  on  TV  is  indecent. 

 To  refuse  to  investigate  all  (or  virtually  all)  complaints  unaccompanied  by  a  tape  or  transcript  does  not  fulfill  the 
 Commission's  responsibility  to  "execute  and  enforce"  the  provisions  of  the  Communications  Act  of  1934,  as  amended. 

 The  refusal  to  investigate  complaints  unaccompanied  by  a  tape  or  transcript  hamstrings  enforcement  of  the  indecency  law  in  two 
 ways.  First,  it  guarantees  that  the  vast  majority  of  complaints  are  not  investigated  by  the  FCC.  Second,  it  discourages  many  viewers 
 from  making  indecency  complaints,  because  they  know  that  complaints  unaccompanied  by  a  tape  will  be  ignored  by  the  FCC. 

 Government  has  a  compelling  interest  in  protecting  adults  in  the  privacy  of  their  homes  and  children  from  indecent  broadcast  TV 
 programming.  It  is  the  FCC's  job,  not  that  of  viewers  or  parents,  to  enforce  the  indecency  law.  For  the  FCC  to  say,  "We  will  consider 
 protecting  the  home  and  children  from  unwanted  TV  indecency  --  but  only  if  a  viewer  is  able  to  do  all  the  necessary  preliminary  work 
 for  us"  --  is  at  best  arbitrary. 

 SUMMARY  OF  COMMENTS 
 To  recapitulate,  Morality  in  Media's  Public  Interest  suggestions  are  summarized  as  follows: 

 1.  The  FCC  should  face  up  to  the  fact  that  the  problem  of 

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 _  ^_.__  _^  _.  "--.---  l.  l.."_. 
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 indecent  programming  on  TV  is  serious  and  getting  worse  and  that  it's  present  "enforcement"  policy  is  not 
 working.  The  situation  continues  to  deteriorate. 
 2.  The  Commission  must  recognize  that  the  primary  burden  for  investigating  violations  of  the  indecency  law  (18  U.  S.  C. 
 1464)  is  on  the  FCC,  not  on  the  general  public. 
 3.  This  burden  is  effectively  being  avoided  by  the  FCC  policy  of  insisting  that  complainants  provide  a  tape  or 
 transcript  of  the  program  or  of  significant  excerpts  (i.  e.,  a  prima  facie  case)  before  the  FCC  investigates. 
 Requiring  ordinary  citizens  to  make  a  prima  facie  case  of  indecency  does  not  find  favor  in  the  law. 

 4.  This  non-  investigative  policy  is  further  exacerbated  by  the  Commission's  refusal  to  (1)  request  or  subpoena  a 
 tape  of  the  program  (2)  monitor  programming  on  its  own;  and  (3)  initiate  inquiries  on  its  own  motion;  and  (4) 
 require  licensees  to  make,  maintain  and  provide  tapes  or  transcripts  to  the  FCC  upon  request. 

 5.  These  failed  policies  must  be  abandoned  in  the  Public  Interest  in  order  that  the  FCC  meet  the  mandate  Of 
 Congress  to  enforce  the  Law  in  this  rapidly  evolving  Telecommunications  Age. 

 6.  The  FCC  must  revisit  the  Rating  System  by  opening  up  another  Notice  of  Inquiry,  based  on  the  fact  that  the 
 present  symbols  are  inadequate  to  warn  parents  as  to  what  .is  or  can  be  shown  under  the  various  symbols  and  that  a 
 legend  on  the  screen  of  what  is  really  in  the  program  should  precede  the  broadcasting  of  the  same. 

 7.  The  V-  chip  is  not  a  substitute  for  enforcement  of  the  broadcast  indecency  law.. 

 Respectfully  Submitted, 

 Morality  in  Media  475  Riverside  Drive 
 New  York,  NY  10115  (212)  870-  3222 

 Robert  W.  Peters  President 
 Morality  in  Media 

 March  10,  2000 
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 Examples  of  Sexual  Material  from  Parents  Television  Council,  Special  Report 
 Fox  l 
 Ryan:  "Is  sex  all  that  matters  to  you,  Lexi?"  Lexi:  No,  there's  always  love,  and  I  love  having  sex  with  you. 

 Now  take  off  your  clothes."  -Ryan"  "No.  You  take  off  my  clothes." 
 Lexi:  "Alright  honey,  that's  more  like  it.  How  do  you  want  it,  slow  or  fast?" 
 Ryan:  "Fast."  She  rips  open  his  shirt,  and  they  begin  kissing  passionately,  he 
 sits  her  up  on  the  counter  with  her  legs  straddling  his  waist.  After  Megan  walks  in  on  them  having  sex  in  the  restroom,  she 
 explains  what  she  saw  to  Michael,  who  thinks  his  wife,  Jane,  is  Cheating  on  him. 
 Megan:  "Well,  did  you  see  their  flesh  flapping,  their  bodies  slapping,  'cause  I  did." 
 Michael:  "Wait  a  second.  You  saw  Jane  and  Alex  having  sex?  Megan,  how  is  that  possible?" 
 Megan:  No,  Ryan  and  Lexi,  here,  in  the  lounge  .  .  .  Oh,  Michael.  That  is  stone  cold  proof,  half  naked  bodies.  You  don't 
 have  stone  cold  proof  like  that."  Michael:  "Oh  why,  because  I  didn't  catch  her  in  the  act  .  .  . 
 well  I  saw  it  in  her  eye.  .  ."  Megan:  "It's  not  the  same  thing,  Michael.  Writhing  bodies,  oh  if 
 you'd  seen  what  I  saw,  groaning,  moaning,  the  mirror  shaking.  .  ."  (Melrose  Place) 

 NBC 
 l  Paul  takes  Viagra  and  walks  around  Manhattan  with  an  obvious 
 erection.  His  cousin  Ira  suggests  he  "relieve  [himlself."  Paul  responds,  "I  ain't  wasting  this  [erection]  on  a  picture  of 

 Steffi  Graf."  (Mad  About  You) 
 ABC  l 
 Dharma:  "Well,  you  are  going  to  teach  him  about  sex,  right?"  Greg:  "Yeah,  When  the  time  is  right,  I'll  leave  a  book  on  his 

 dresser."  Dharma:  "No,  not  that  slot  'a',  tab  b'  stuff.  I'm  talking  about 

 the  whole  sexual  experience,  About  how  to  please  your  partner.  Like  you  could  teach  him  about  that  whistle  thing  you  do." 
 Fete:  "When  do  you  do  that?"  Jane:  "It's  not  when,  you  moron.  It's  where." 
 Greg:  "How  does  she  know."  Dharma:  I  was  bragging."  (Dharma  &  Greg) 

 l  Discussing  a  couple  who  are  having  sex  for  the  first  time: 

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 Amber:  "How  long  have  they  been  up  there?"  Cher:  "About  an  hour" 
 Amber:  "Wow.  .  .  That's  about  59  minutes  longer  than  I  would  have  expected." 
 (Clueless) 

 l  Jen  gets  really  drunk,  and  goes  upstairs  with  two  guys.  Dawson 
 finds  her  partially  undressed  and  making  out  with  the  guys  at  -once.  (Dawson's  Creek) 

 l  Faith:  "I'm  about  ready  to  pop.  Are  you  up?" 
 Xander:  "I'm  suddenly  very  up."  Faith:  "Just  relax  and  take  your  pants  off." 

 Faith  rips  Xander's  shirt  off  and  they  begin  to  kiss.  They  get  into  bed  and  have  sex.  Faith's  body  is  seen  on  top  of  Xander  in 
 the  reflection  on  the  TV.  (Buffy  the  Vampire  Slayer) 
 CBS 
 l  Royal:  "Connie,  how  about  you,  does  Whispering  Penis'  sound 
 like  a  hotel  to  you?"  Connie:  "No  Royal,  to  me  it  sounds  like  a  difficult  and  rare 

 party  trick."  (Payne) 

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