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 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 
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 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  Commissions  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 
 Administrations  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. 
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 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  FCCs  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  todays  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. 


 1  Zero  to  Six,  Electronic  Media  in  the  Lives  of  Infants,  Toddlers  and  Preschoolers,  Fall  2003,  The  Henry  J. 
 Kaiser  Family  Foundation. 
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 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  Commissions  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 
 Administrations  support  for  that  legislation. 
 Historically  the  FCCs  indecency  rules  and  enforcement  efforts  have  generally 
 been  effective  at  balancing  broadcasters  First  Amendment  rights  with  societys  right  to 
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 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  Bonos  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 
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 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  childrens  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. 
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 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  wont  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  FCCs  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 
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 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  weeks  Super  Bowl  debacle  showed,  these  early  warning  systems 
 simply  wont  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 


 2  See,  e.  g.,  Parents  and  the  V-  Chip  2001,  July  2001,  The  Henry  J.  Kaiser  Family  Foundation. 
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 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  FCCs  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. 
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