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S. HRG. 108–1005 

PROTECTING CHILDREN FROM VIOLENT 

AND INDECENT PROGRAMMING 

HEARING 

BEFORE THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED EIGHTH CONGRESS 

SECOND SESSION 

FEBRUARY 11, 2004 

Printed for the use of the Committee on Commerce, Science, and Transportation 

( 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED EIGHTH CONGRESS 

SECOND SESSION 

JOHN MCCAIN, Arizona, Chairman 

TED STEVENS, Alaska 

CONRAD BURNS, Montana 

TRENT LOTT, Mississippi 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

SAM BROWNBACK, Kansas 

GORDON H. SMITH, Oregon 

PETER G. FITZGERALD, Illinois 

JOHN ENSIGN, Nevada 

GEORGE ALLEN, Virginia 

JOHN E. SUNUNU, New Hampshire 

ERNEST F. HOLLINGS, South Carolina, 

Ranking 

DANIEL K. INOUYE, Hawaii 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

JOHN B. BREAUX, Louisiana 

BYRON L. DORGAN, North Dakota 

RON WYDEN, Oregon 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK R. LAUTENBERG, New Jersey 

JEANNE BUMPUS, Republican Staff Director and General Counsel 

KEVIN D. KAYES, Democratic Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on February 11, 2004 ....................................................................... 1 

Statement of Senator Boxer .................................................................................... 2 

Excerpt from GAO, ‘‘Child Pornography Is Readily Accessible over Peerto-Peer Networks’’, June 2003 ..................................................................... 56 

Statement of Senator Breaux ................................................................................. 5 

Statement of Senator Brownback ........................................................................... 5 

Statement of Senator Burns ................................................................................... 3 

Statement of Senator Dorgan ................................................................................. 16 

Statement of Senator Hollings ............................................................................... 6 

Prepared statement .......................................................................................... 7 

List of TV and Copycat Behavior cases .......................................................... 53 

Statement of Senator Lautenberg .......................................................................... 10 

Prepared statement .......................................................................................... 11 

Article dated February 2, 2004 from the Washington Post by Tom Shales . 12 

Letter dated April 6, 2004 to all Senators from Gene Kimmelman, Consumer’s Union ............................................................................................... 13 

Statement of Senator Lott ...................................................................................... 66 

Statement of Senator McCain ................................................................................. 1 

Statement of Senator Nelson .................................................................................. 15 

Prepared statement .......................................................................................... 15 

Statement of Senator Snowe ................................................................................... 9 

Statement of Senator Wyden .................................................................................. 14 

WITNESSES

Abernathy, Hon. Kathleen Q., Commissioner, Federal Communications Commission .................................................................................................................. 23 

Prepared statement .......................................................................................... 25 

Adelstein, Hon. Jonathan S., Commissioner, Federal Communications Commission .................................................................................................................. 44 

Prepared statement .......................................................................................... 46 

Copps, Hon. Michael J., Commissioner, Federal Communications Commission 28 

Prepared statement .......................................................................................... 30 

Graham, Hon. Lindsey O., U.S. Senator from South Carolina ............................ 17 

Prepared statement .......................................................................................... 18 

Martin, Hon. Kevin J., Commissioner, Federal Communications Commission .. 33 

Prepared statement .......................................................................................... 36 

Powell, Hon. Michael K., Chairman, Federal Communications Commission ..... 19 

Prepared statement .......................................................................................... 21 

APPENDIX

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, prepared statement ........... 79 

(1) 

PROTECTING CHILDREN FROM VIOLENT 

AND INDECENT PROGRAMMING 

WEDNESDAY, FEBRUARY 11, 2004 

U.S. SENATE, COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, Washington, DC. 

The Committee met, pursuant to notice, at 9:30 a.m. in room SR– 

253, Russell Senate Office Building, Hon. John McCain, Chairman 

of the Committee, presiding. 

OPENING STATEMENT OF HON. JOHN MCCAIN, 

U.S. SENATOR FROM ARIZONA 

The CHAIRMAN. Good morning. I welcome the Federal Communications Commission and Chairman Powell, and I thank them for 

appearing before the Committee today to discuss the pervasiveness 

of violent and indecent programming on broadcast television. And 

I’d like to make it very clear this Committee had scheduled this 

hearing before the Super Bowl aired due to Members’ concerns 

about increasingly violent and indecent programming. 

By now, there isn’t a person in this room who’s unfamiliar with 

CBS and the NFL’s fumble during the Super Bowl halftime show 

last week, which was viewed by an estimated 140 million Americans, including millions of young children. And then, in an instant, 

this issue became the subject of national debate, and rightfully so. 

This discussion should remind us that broadcasters have been 

given spectrum for free. As Americans who own that spectrum, we 

have every right to expect something in return. We call it the ‘‘public interest.’’ We expect broadcasters to make the best use of that 

spectrum by providing news and information about our society and 

political campaigns, children’s programming, and even entertainment. But what constitutes entertainment clearly lies in the eye of 

the beholder. 

Forty years ago, Jack Paar famously walked off the Tonight 

Show because a network had censored a joke he told involving a, 

‘‘water closet.’’ From censoring a water closet joke to airing nudity, 

we’ve come a long, long way. However, that is exactly what makes 

it so difficult to draw a line between what is and what is not appropriate within the boundaries of the First Amendment. 

Before the Super Bowl, CBS sister company, MTV, hyped the 

halftime show as one that would provide a, ‘‘shocking moment,’’ 

and grab viewers’ attention. Well, they’ve succeeded. They now 

have the attention of the Chairman of the Federal Communications 

Commission and more than several Members of Congress. Chairman Powell has called for a thorough and swift investigation of the 

2 

incident. Senators Allen, Brownback, and Lindsey Graham have introduced a bill, S. 2056, that would increase fines for indecency violations. 

I remind my colleagues that last summer Senator Hollings and 

I introduced our FCC reauthorization bill, S. 1264, that would not 

only raise fines tenfold for broadcasters, but also direct the FCC to 

count each incident—utterance individually and encourage license 

revocation proceedings in certain circumstances. The bill was reported out of this Committee 7 months ago, and it’s unfortunate 

that the Senate leadership has not seen fit to bring the bill to the 

floor for consideration and passage. These fines have not been 

raised since 1989. Now is the time, so companies don’t continue to 

accept these fines as the cost of doing business. 

I note, finally, the scope of all these bills are limited to broadcast 

television. All these bills, the scope is limited to broadcast television. More than 85 percent of Americans now receive their television programming from cable and satellite television. In fact, for 

the first time ever, cable’s combined prime-time viewership recently 

surpassed that of broadcast. 

Gene Kimmelman, my old friend Gene Kimmelman, of Consumer’s Union, wrote to Senators this week urging Congress to address indecent content on cable and satellite television. Mr. 

Kimmelman calls for Congress to take a new approach to offensive 

content aired over pay television. Quote, ‘‘Instead of forcing customers to buy service from tiers of 40, 50, or 75 channels, which 

include networks they never watch or channels they find offensive, 

Congress should require cable and satellite operators to offer a` la 

carte programming, let people pick and pay for only those channels 

they want in order to save consumers money and empower those 

who are offended by some of today’s program offerings. Mr. 

Kimmelman’s a` la carte suggestion sounds familiar to me, and 

more persuasive than ever in providing parents control over their 

television sets. But I suspect we’ll hear more about these issues in 

the weeks to come. 

Again, I thank the Commissioners for being here with us this 

morning. I would ask my colleagues if they could make their opening comments brief, and then Senate Graham would like to make 

a brief opening comment, and we will move forward. 

Senator Breaux? 

I’m sorry, Senator Boxer was here before Senator Breaux. 

Senator Boxer? 

STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM CALIFORNIA 

Senator BOXER. Thank you, Mr. Chairman. 

Well, clearly, we were right, in this Committee, in June. I thank 

you and Senator Hollings for being ahead of the curve here when 

we voted to increase fines for obscenity ten times. And we were 

also right to follow Senator Hollings’ lead, in terms of looking at 

each offense as a separate one, and also to even look at license revocation. I’m glad that you called our attention to this issue of Mr. 

Kimmelman’s point that picking and paying, I think, is the way 

you phrased it, seems to make a lot of sense when you look at 

3 

these packages, because you’re sometimes getting channels that 

you really are stunned to find. 

I want to quickly just talk about the halftime deal, because I 

was, as most of Americans, or a lot of Americans, watching the entire Super Bowl and the halftime. Great family day. We were with 

our family and friends. There were nine kids in the house. They 

were very little kids, and they happened to be upstairs watching 

Shrek, which was fortunate for us. 

What I found, Mr. Chairman, the end of the halftime show was 

shocking, but the whole halftime show was shocking. And, for me— 

I guess because I don’t watch MTV, it was shocking. I guess for 

people who watch it, like the youngsters who were—the young people who were at this home watching with us, they said, ‘‘Well, this 

is what you get all the time on MTV.’’ Well, I think—let’s just say 

it opened a lot of eyes. 

I think, here, that maybe, as a result of this and the fact that 

hundreds of thousands of people contacted the FCC, it does spur 

us to really enforce the law. 

I want to make one last point, Mr. Chairman, because this was 

an issue that awakened us, but I want to take advantage of this 

moment to talk to the Commissioners here. I want to also thank 

you all for—a lot of you, for speaking out intelligently on this, and, 

also, one of the Commissioners actually went and met with the creative community—and I think it was you—and it was very important that that be done, because the onus is on them. I believe, in 

our society, they need to take responsibility. 

But the last point I want to make to the Commissioners is this. 

As outrageous as this was, it doesn’t come close to what happens 

on peer-to-peer networks, the child pornography that our kids are 

seeing when they click onto something that says Britney Spears or 

the Beatles. What is going on in the peer-to-peer is sickening. And 

I hope—and I’m going to continue to raise this with this Committee. And, as far as I’m concerned, I hope you will begin to take 

immediate action in that area, because it’s a frightening circumstance what is going on there, unsuspecting children getting 

images that are illegal and could scar them for life. 

So, Mr. Chairman, we do have a lot of work to do. Thank you 

for your leadership. 

The CHAIRMAN. Thank you. 

Senator Brownback? 

Oh, sorry. Senator Burns? That’s twice. 

Senator Burns? Sorry. 

Senator BURNS. Who cares? 

[Laughter.] 

The CHAIRMAN. Some do. 

[Laughter.] 

Senator BURNS. I know. 

[Laughter.] 

STATEMENT OF HON. CONRAD BURNS, 

U.S. SENATOR FROM MONTANA 

Senator BURNS. I glean more from other people’s statements than 

I do from my own, anyway, so maybe I should be moved down to 

come up with an idea. 

4 

Mr. Chairman, thanks for holding this hearing. We were all 

shocked and dismayed at the—and disappointed by the inappropriate stunt that happened at the Super Bowl, and those responsible should be severely punished for such a—it was just a vulgar, 

tasteless act. 

That said, in my opinion this sort of high profile, well-publicized 

incident could prompt Congress to go too far in this situation on 

what we think—levy fines and this type thing. I think we have to 

approach it—kind of, be guided with some principles here, also. 

When I saw on the marquee that the halftime show was ‘‘compliments of MTV,’’ I didn’t even see it. I immediately flipped over 

and watched the poker tournament from Las Vegas. What would 

CBS or the NFL expect, if you’ve ever watched MTV? I said, way 

back in 1990 and 1991, that if there ought to be a pay channel, it 

should be MTV. And I still say that today. And it has gotten worse. 

And I didn’t think it could get any worse, but it has. I’m just being 

very outspoken about this. I just think it’s inappropriate, and does 

not portray the average community across America. 

You know, in my opinion, private industry should be held accountable for their programming standards, and I think they 

should reflect more about the values of American communities. 

This has been a widespread move to increase finds of indecency. 

And, of course, somebody define that, and I’ll put in with them. But 

I’m concerned at the potential unintended effects such moves could 

make if fines are increased. Individual affiliates should not be punished for simply broadcasting content of which they have no control. We have to look at that. But it would look like, if they would 

look into the community of arts, or whatever you want to call it, 

or imagination, or whatever, and would have a history, and just 

wouldn’t program such stuff—in the case of the Super Bowl incident, for example, many affiliates were furious that their 

viewership was exposed to such a spectacle. Ultimately, however, 

no matter what the penalties are or how strictly or regularly they 

are levied, the media is going to need to demonstrate some responsibility on its own. 

So I think, you know, as we look at this—and I think everybody 

was shocked—is fines the right direction? I don’t know. I think 

that—in the court of public opinion, that the image of those involved and the companies involved and the organization that was 

involved has been tarnished, and they may suffer greater fines 

there than we could levy from a governmental organization. And 

you can make a case—if you were an attorney, you could probably 

make a case both ways. So our approach on this—we should, you 

know, approach it responsibly. I’m not—I think what the Chairman 

of this Committee and the Ranking Member introduced and passed 

out of this Committee, I think, is probably a pretty good start in 

that direction. But I also fear overreaction, too. 

And so thank you, Mr. Chairman, for holding this hearing and 

at least giving some of us an opportunity to vent our disapproval 

of what happened at the Super Bowl this year. And thank you. 

The CHAIRMAN. Thank you, sir. And, again, I request my colleagues abbreviate their opening statements because Senator 

Graham has to leave and we have our five Commissioners waiting. 

Senator Breaux? 

5 

STATEMENT OF HON. JOHN B. BREAUX, 

U.S. SENATOR FROM LOUISIANA 

Senator BREAUX. Thank you, Mr. Chairman. And thank the Commissioners for being with us. 

I watched the Super Bowl, as most Americans did, and I thought 

that whoever—at least in my opinion, whoever booked the halftime 

show probably should be fired, if nothing else because of the marketing—target audience that was in the stadium, certainly people 

pretty much my age or maybe in that neighborhood, who could afford a $2,000 ticket. 

Senator BURNS. That old? 

Senator BREAUX. Most of those people had no idea who Kid Rock 

was or P. Diddy was or Justin Timberlake was, and could care less. 

So I really think that they really missed the audience completely. 

That show would have been something that you could expect at a 

rock concert, perhaps, but certainly not in the audience that was 

watching the Super Bowl. So, number one, I think they missed 

their audience, really, completely. 

The other issue of the content is something that I think deserves 

our attention in the overall perspective. Seeing Janet Jackson’s 

breast for 2 seconds pales in comparison to some of the things that 

we see on television on a regular basis. If you look at some of the 

reality shows where you dump people in a tub of worms and ask 

them to eat cockroaches, or you get people to jump off tall buildings 

in very dangerous physical situations, which young people tend to 

copy and injure themselves, when you look at other things that are 

on cable, whether it’s the programs—the new ‘‘L’’ word show 

times—lesbian-themed shows, Queer As Folk, MTV, Sex in the 

City—all of that is an explosion of things that we should be concerned about. 

It seems interesting that we say, well, if it’s on the broadcast 

network, we’re going to look at the most detailed of violations of 

the decency standards, but if it’s on just a higher channel number, 

which you can get just by clicking your channel-changer, well, 

we’re not—we’re going to ignore it and not pay any attention to it. 

Well, that’s because it’s on cable. Well, I think the distinction between cable and the broadcast—like I think the Chairman started 

to say and move in that direction, is something we look at—ought 

to look at the whole spectrum of what we get over our televisions. 

It’s very disturbing that we thought we had this problem somewhat solved with the V-chips. Less than 7 percent of families use 

V-chips. Parents should be the ultimate sensors of what their children watch; but, unfortunately, that is not being done. 

So I thank you for the opportunity for this hearing. 

The CHAIRMAN. Thank you. 

Senator Brownback? 

STATEMENT OF HON. SAM BROWNBACK, 

U.S. SENATOR FROM KANSAS 

Senator BROWNBACK. Thank you, Mr. Chairman, for holding this. 

By my quick count, memorywise, I think this is about our twelfth 

hearing on this topic. You’ve been on it, faithful to point out and 

deal with these issues for a long period of time. I’ve been meeting 

with the creative community basically since I’ve been in the Senate 

6 

to urge them to address these issues of vulgarity, sexual material, 

violent material. By my count, we have over 2,000 studies and reports—over 2,000 studies and reports—on the effect of violent entertainment on children, virtually all of them bad. They’re saying 

that you watch a lot of violent material, your child’s going to be 

more violent. 

We’re now into these brain-mapping studies, where people do 

MRIs while children watch violent entertainment, and see that the 

brain, where it’s firing, shows that—early on, that the cognitive 

part, the thinking part of the brain is being depressed and slowed 

down the more of this material that they watch, so that they just 

react. 

Mr. Chairman, I think the—this is a good hearing. I’m delighted 

we’re having it. It’s time to act on this. It’s not as if this is something new to any of us, or that this is something that just suddenly 

has come on the TV screen because of Janet Jackson. This has 

been out there for a long period of time. And I have two suggestions. I’m on Senator Graham’s bill, that we increase, by tenfold, 

the fines, because I think maybe that’ll send a signal. It’s time to 

act and it’s time to move this. 

The other thing that we did get the creative community’s attention on was the FTC study that we did on their target marketing 

of violent material to children. And we showed there that they 

were actually doing sample groups of studying 9 to 12-year-old children, taking violent R-rated material and saying, ‘‘What will attract them,’’ and they were doing focus groups. And we started to 

get them to turn a little bit, saying if you’re going to rate it as violent material, then don’t target-market it to the very group that 

you’ve rated and say it’s not appropriate for. 

Well, I think we need to do the same thing with the FTC with 

sexual material, then. If they’re going to say it’s not appropriate 

material for an under age 18 audience, then why are you targetmarketing it to that under age 18 audience? 

We had MTV go on halftime in the Super Bowl. Everybody up 

here is saying, well, this is what’s been on MTV. Well, who watches 

MTV? Who is this target-marketed to? Well, I think we need to 

have the FTC do something, again, similarly, and find out, are 

these organizations target-marketing this to kids of inappropriate 

material? And if so, let’s get a stop to it. 

But we have this toxic entertainment media environment now in 

this country where you just can’t afford to let your child freely 

watch the television, for violent or sexual material. And this is 

hurting us, and it’s—I’m glad we’re holding the hearing, but it is 

time to act. We’ve got to move this on forward. 

I congratulate the Chairman for looking into this, but it’s time 

to move, and we need to do it now. 

Thank you. 

The CHAIRMAN. Thank you, sir. 

Senator Hollings? 

STATEMENT OF HON. ERNEST F. HOLLINGS, 

U.S. SENATOR FROM SOUTH CAROLINA 

Senator HOLLINGS. Well, I thank you, Mr. Chairman, very much 

for the hearing. 

7 

Let me, in the first instance, commend our colleague from Kansas. I finally found someone else on the other side of the aisle now 

that’s just as exercised about violence as I am. This thing has been 

going on for years. 

First, let me ask that the distinguished Senator from West Virginia, Senator Rockefeller’s, statement be included—— 

The CHAIRMAN. Without objection. 

Senator HOLLINGS.—and mine, in its entirety. 

The CHAIRMAN. Without objection. 

Senator HOLLINGS. And let me try to shorten, or cut it short as 

much as I possibly can. 

[The prepared statement of Senator Hollings follow:] 

PREPARED STATEMENT OF HON. ERNEST F. HOLLINGS, U.S. SENATOR FROM SOUTH CAROLINA

Thank You, Mr. Chairman. I want to thank Senator McCain for his leadership 

in calling this hearing to consider the harmful effects that a barrage of indecent and 

violent programming is having on our Nation’s youth. Despite the explosion of attention in recent days occasioned by the now infamous ‘‘wardrobe malfunction’’ during 

this year’s Super Bowl halftime show, this committee has, for some time, expressed 

growing concern regarding the rapid decline in standards for radio and television 

programming. Already in the 108th Congress, this committee has reviewed recent 

research documenting the harmful effects of media violence on child-viewers. In addition, we have reported out legislation as part of S. 1264, the FCC Reauthorization 

Bill, that would increase maximum fines for indecent broadcasts by a factor of 10 

and would provide the FCC with additional enforcement tools to stop indecent 

broadcasts. 

Today’s hearing, however, is fundamentally about accountability and responsibility. In the first instance, the accountability and responsibility we require from 

those licensees entrusted with public resources—through grants of government spectrum and public right of ways—to deliver radio and television programming to 

America’s children. In the second instance, the accountability and responsibility we 

demand of regulators to vigorously enforce our laws prohibiting the utterance of 

‘‘any obscene, indecent, or profane language by means of radio communication.’’ Unfortunately, in this Senator’s opinion, we are falling short of the mark in both cases. 

Despite over 50 years of inquiries and an overwhelming amount of evidence demonstrating the link between media violence and aggressive behavior in children, 

Congress continues to battle an industry, at best, in denial, and at worst indifferent. 

Because money talks and violence sells, violent acts in prime time have become 

more frequent and more graphic. According to a recent report by the Parent Television Council entitled TV Bloodbath: Violence on Prime Time Broadcast TV, depictions of violence in prime time increased on the six major broadcast networks by 

41 percent during the 8 p.m. hour and by 134.4 percent during the 9 p.m. hour between 1998 and 2002. 

Additionally, our continuing efforts to assist parents by requiring blocking technologies like the V-Chip have largely been ineffective. According to a 2001 Kaiser 

Foundation Survey, while 40 percent of parents had TVs equipped with this technology, only 7 percent used the V-Chip to block programs. In light of this failure, 

it is time that the Committee get serious about protecting children from violent programming by adopting safe harbor legislation (S. 161). This legislation that I have 

again introduced with Senators Inouye, Dorgan, and Hutchinson has widespread 

support and has been reported out of Committee multiple times—most recently by 

a vote of 17 to 1. 

But in addition to legislating new protections, we must ensure that our rules prohibiting the broadcast of indecent material on radio and television are vigorously 

enforced to deter wrongful conduct. As consolidated media companies grow ever 

larger, the ability of the FCC promote responsible conduct may be diminishing. In 

other words, when radio behemoths like Clear Channel and Infinity Broadcasting 

have annual revenues of $3.4 and $2.1 billion, respectively, or when CBS sells 

Super Bowl commercials for $2.3 million for each 30 second spot, how much deterrence will the statutory maximum fine of $27,500 buy? 

In light of this fact, I support the efforts of the Committee to increase maximum 

fines and to add other tools to the FCC’s arsenal in combating indecent programming. It is my hope that these provisions will soon be enacted into law. But even 

8 

a bigger hammer will have little effect, if the Commission is reluctant to swing it. 

As a result, it is my hope that the FCC’s new-found fervor in getting serious about 

cleaning up the public airwaves will maintain its intensity and put radio and television stations on notice that the days of ‘‘anything goes’’ are over. 

I thank the Chair, and look forward to the testimony of the witnesses. 

Senator HOLLINGS. Right to the point, last night, Mr. Chairman, 

this Committee got a correspondence, a copy of a letter from the 

Chairman of the Federal Communications Commission, the Honorable Michael Powell to Leslie Moonves of the CBS, and in that letter, what he asked for, and I read, ‘‘To that end, I challenge the 

broadcast community to reinstate a voluntary code of conduct.’’ 

There’s nothing about the responsibility of the broadcast media to 

get to be voluntary. Indecency is not a voluntary proposition. 

It started in the original, Mr. Chairman, Act of 1927; restated 

again in the 1934 Federal Communications Act; then codified in 

the Criminal Code in 1948, in Section 1464; and, finally, in the decision of Pacifica versus FCC—or FCC, rather, versus Pacifica, in 

1978, the Supreme Court of the United States found the responsibility constitutional in the FCC. And now here we’re going to all 

of a sudden start off with this ‘‘voluntary code.’’ 

I have toyed with that ‘‘voluntary code’’ on the most extreme of 

all indecency, namely violence, Senator. And after 10 years of 

that—we’ve been on this thing for 20 years—this Committee has 

reported out three bills, almost unanimously. The last one was 17 

to 1. And after that, they then got the cable boys, in addition to 

trying to get all that voluntary—my friend, Jack Valenti used to always come up and—‘‘We’re going to be voluntary. We’re going to 

be voluntary.’’ I hope we can get his act one more time, because it’s 

worthwhile. 

[Laughter.] 

The CHAIRMAN. We will. 

Senator HOLLINGS. Yes, thank you very much, Mr. Chairman. 

But then the national TV spent—cable industry, rather—spent 

three and a half million, and they put their National Parent Teacher Association head and the head of the National Education Association on the Council, but then they packed the court with the 

American Federation of Television and Radio Artists, the Producers 

Guild of America, the Writers Guild of America, the Caucus for 

Producers, Writers, and Directors, and Gene Reynolds of the Directors Guild of America. And to the surprise, Senator, of everyone— 

and I won’t read them all, but just three—they made a finding. It 

threw them in shock, because they had spent the money to really 

dissemble and begin again, or put off for this particular Committee. 

They found, one, nearly two out of three TV programs contain 

some violence, averaging about six violent acts per hour. Two, violence was found to be more prevalent in children’s programming, 

69 percent, than in any other types of programming, 57 percent. 

And the average child, who watches 2 hours of cartoons a day, may 

see nearly 10,000 violent incidents each year. And on and on. 

I just ask, Mr. Chairman—we’ve got a record. It starts with 

1949, in Man Against Crime. I’m reading from ‘‘The History of 

Broadcasting,’’ and this is what, in 1949, the writers directed the— 

instructions went out to the writers, and I quote, ‘‘It has been 

found that we retain audience interest best when our story is conVerDate Nov 24 2008 10:35 Jul 13, 2016 Jkt 075679 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\20693.TXT JACKIE
9 

cerned with murder. Therefore, although other crimes may be introduced, somebody must be murdered; preferably early, with the 

threat of more violence to come’’—— 

[Laughter.] 

Senator HOLLINGS.—end quote. Now, that’s not Hollings, that’s 

‘‘The History of Broadcasting,’’ and everybody knows it pays. We in 

the Committee know it’s paid. And every time we get the bill out 

on the floor—and that’s why I’m so happy to see the leadership of 

Senator Brownback; otherwise, they put me off. I put it on another—‘‘Oh, I’m with you, but I had to vote against it because it 

wasn’t germane or it just hurt the passage of the other bill and everything else of that kind.’’ 

So this has been going on for 20 years, and I hope we can bring 

it to a head this year and pass it, Mr. Chairman, under your leadership, and Senator Brownback. 

And let me welcome my colleague from South Carolina, Senator 

Graham. We’re glad to have him. 

The CHAIRMAN. Thank you, sir. 

Senator Snowe? 

STATEMENT OF HON. OLYMPIA J. SNOWE, 

U.S. SENATOR FROM MAINE 

Senator SNOWE. Thank you, Mr. Chairman. And very briefly. 

First of all, I want to thank you for holding this hearing and your 

persistent leadership on this issue throughout the years as Chairman of this Committee, and Senator Hollings, as well, and the Senator from Kansas and Senator Graham, for all their efforts on this 

issue. 

I think it’s undeniable that television is a major force in our 

daily lives. And with the influence of television, wields obviously 

certain responsibilities, particularly when it comes to certain members of our society, and that’s obviously children. And that’s what 

brings us to this point here today, is what children are exposed to 

on television. 

Now, obviously, the picture coming across on television is one 

that’s saturated with violence and indecent programming. According to a recent study—and it buttresses what Senator Hollings just 

mentioned—by the Parents Television Council, the average child 

spends 25 hours per week watching television. This is more time 

devoted than attending school, playing sports, and virtually any 

other activity other than sleeping. 

And what have these children been watching? The study estimated that the average child, upon reaching 18, has witnessed 

40,000 murders and 200,000 other acts of violence on TV. More disturbingly, TV programming has become more violent, and these are 

obviously disturbing and troubling trends. 

Over the past 5 years, violent broadcasts have increased at every 

single time slot, and has increased by upwards of 41 percent during 

the traditional family between 8 o’clock and 9 o’clock. Commenting 

on that report from a paper in Maine, they noted that during the 

two week sweeps period in November 1998, there were 292 violent 

incidents on primetime TV. During that same sweeps period in 

2002, the number of violent scenes on television between 8 and 11 

o’clock had increased to 534. I think that that is a broad illustraVerDate Nov 24 2008 10:35 Jul 13, 2016 Jkt 075679 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\20693.TXT JACKIE
10 

tion of the types of trends that continue to evolve over time that 

are moving in the wrong direction. 

Finally, on indecent broadcasting, as everybody has indicated 

here, it was certainly well in evidence by the infamous halftime 

show at the Super Bowl. But I think, as the Commissioners know 

well, that millions and millions of Americans were watching that 

program at that point in time are calling for action as a result of 

these events. The FCC alone has received more than 240,000 complaints in 2003 regarding indecent and violent TV programs. And 

just because the CBS Super Bowl broadcast—that alone has generated more than 200,000 in complaints already. 

So obviously people are demanding the type of action that is 

being called for by Members of this Committee and by the Commission and the leadership of the Commission. I know that, under 

Chairman Powell, record fines have been given. In the past 14 

months, they’ve handed down fines of more than a million dollars. 

But perhaps we have to do more. It’s a very delicate situation in 

navigating between the interests of the First Amendment and, obviously, protecting children from harmful programming. That’s the 

balance that we obviously have to strike, and I’m looking forward 

to the testimony from the Commission in terms of what are the 

regulatory procedures, whether or not enhancing penalties will be 

sufficient to deter this type of programming, and, in particular, at 

a time in which the children are watching television. 

And, finally, one other issue. One local affiliate wrote to me recently stating the pressures on local affiliates to preempt programming that violates their community standards. And he said to me, 

the right to reject or preempt unsuitable programming has eroded 

over time. It has eroded because networks have deployed their 

greater bargaining power with their affiliates to require affiliates 

to relinquish these rights by contract. 

Again, in light of the media consolidation and the prevalence of 

direct ownership affiliates by their parent networks, how are local 

broadcast stations supposed to enforce their local community standards? Again, this is another dimension of the problem that, again, 

I think has an impact on the type of programming that young people are witnessing and watching today. 

Thank you, Mr. Chairman. 

The CHAIRMAN. I’ll tell my colleagues we’ve been in session now 

for a half an hour. We have four more Senators. I do not want to 

cutoff any Senator, but I will exercise the prerogatives of the Chair, 

because we have Senator Graham and we have the Commissioners 

here. Please abbreviate your opening statements. 

Senator Lautenberg. 

STATEMENT OF HON. FRANK R. LAUTENBERG, 

U.S. SENATOR FROM NEW JERSEY 

Senator LAUTENBERG. Thank you, Mr. Chairman. I’ll be brief, 

and would ask that my full statement be included in the record. 

The CHAIRMAN. Without objection. I thank you, Senator Lautenberg. 

[The prepared statement of Senator Lautenberg follows:] 

11 

PREPARED STATEMENT OF HON. FRANK R. LAUTENBERG, 

U.S. SENATOR FROM NEW JERSEY

Mr. Chairman: 

Let me start by apologizing for my appearance—I had a ‘‘wardrobe malfunction’’ 

this morning. 

In all seriousness, I understand that today’s hearing was scheduled before Super 

Bowl 38 but that putrid broadcast certainly highlighted the need for this investigation of television and radio programming and its effects on children. 

During the Super Bowl, we were bombarded with ads featuring flatulent horses, 

crotch-biting dogs, and a monkey making sexual advances to a woman. 

During halftime, saw Justin Timberlake ripping off Janet Jackson’s clothes while 

he sang lyrics such as: ‘‘I’ll have you naked by the end of this song.’’ 

I’m not a prude, but I am a grandfather of ten. And what I saw was deeply offensive. 

CBS officials ‘‘apologized’’ for Janet Jackson’s bared breast, saying ‘‘the moment 

did not conform to CBS broadcast standards.’’ What a joke! 

Isn’t it interesting that CBS and MTV Networks, which produced the halftime debacle, are both owned by Viacom? 

And isn’t it interesting that Viacom is one of two media giants that benefited from 

the provision slipped into the Fiscal Year 2004 Omnibus appropriations bill at the 

insistence of the White House to lift media ownership limits? 

And isn’t it interesting that CBS refused to air MoveOn.org’s ad, ‘‘Child’s Pay’’? 

That ad has one line suggesting that our children and grandchildren will have to 

pay off the enormous public debt that President Bush’s economic and fiscal policies 

have created—which happens to be true. The ad wasn’t pornographic. It wasn’t vulgar. It wasn’t tasteless. I guess that’s why it ‘‘didn’t conform to CBS broadcast 

standards.’’ 

How does all of this relate to TV and radio programming and children? I’ll tell 

you how. Lifting the ownership limits for companies like Viacom and Fox and Clear 

Channel and lnfiniti will make them less accountable to the public and to the FCC. 

Any fines the FCC might impose on these giants will be like pin pricks on an elephant’s hide. 

We need to remember that the airwaves constitute a public asset to be managed 

in the public interest. That’s not happening anymore, and it’s not just our children 

who are suffering. It’s our entire society. 

Mr. Chairman, I ask unanimous consent that a column about the Super Bowl in 

the February 2 Washington Post by TV critic Tom Shales and a February 4 letter 

to all Senators from Gene Kimmelman and the Consumers Union appear in the 

hearing record following my remarks. 

Thank you, Mr. Chairman. 

Senator LAUTENBERG. It’s my understanding, Mr. Chairman, that 

today’s hearing was scheduled before Super Bowl 38, but that putrid broadcast certainly highlighted the need for this investigation 

of television and radio programming and its effects on kids. 

During this supermarket: that’s what it is, supermarket of filth— 

during the Super Bowl, we were bombarded with ads featuring 

flatulent horses, crotch-biting dogs, a monkey making sexual advances to a woman, and, during halftime, we saw Justin 

Timberland rip off Janet Jackson’s clothes while he sang lyrics that 

said, ‘‘I’ll have you naked by the end of this song.’’ This was no 

freak accident. And the lame excuse that they used, that something 

was wrong with their wardrobe, just doesn’t go. 

I’m a grandfather of ten children, the oldest of whom is ten, and 

I don’t want those children to think that this is standard behavior 

or acceptable conduct. CBS apologized for Janet Jackson’s bare 

breast, saying that ‘‘the moment did not conform to CBS broadcast 

standards.’’ And that’s a joke, because I fear that their standards 

are something even worse than that which we saw. 

It’s interesting that CBS and MTV networks, which produced the 

halftime debacle, are owned by Viacom. And isn’t it interesting that 

12 

Viacom is one of the two media giants that benefited from the provisions slipped into the Fiscal Year 2004 omnibus appropriations 

bill, at the insistence of the White House, to lift media-ownership 

limits? And it’s interesting, further, that CBS refused to air 

MoveOn.org’s ad, ‘‘Child’s Pay.’’ Now, that ad had one line suggesting that our children and grandchildren will have to pay off the 

enormous public debt that’s accumulating and challenged the current economic and fiscal policies that have created this debt, which 

happens to be true. The ad wasn’t pornographic, it wasn’t vulgar, 

it wasn’t tasteless, and I guess that’s why it didn’t conform to CBS 

broadcast standards. 

How does all of this relate to TV and programming and the children? And, Mr. Chairman, I think rather than just express our indignation here, we have to connect it to something that we’re doing 

here or something that we want to do. Well, it relates to TV and 

programming and children by lifting the ownership limits for companies like Viacom and FOX and Clear Channel and Infinity, it’ll 

make them less accountable to the public and to the FCC, and any 

fines that the FCC might impose on these giants will be like 

pinpricks on an elephant’s hide. 

We’ve got to remember that the airwaves constitute a public 

asset, to be managed in the public interest. And that’s not happening anymore. It’s not just our children who are suffering. It’s 

our entire society. 

So, Mr. Chairman, I ask unanimous consent that a column about 

the Super Bowl in the February 2 Washington Post, by TV critic, 

Tom Shales, and a February 4 letter to all Senators from Gene 

Kimmelman and the Consumer’s Union appear in the hearing as 

if read. 

The CHAIRMAN. Without objection. 

[The newspaper article and letter referred to follow:] 

The Washington Post—February 2, 2004 Monday 

INCOMPLETE! 

BYLINE: Tom Shales 

Viewers who tuned in expecting a big-time football game saw the Super Bowl of 

Sleaze instead. Sexy and violent commercials that included jokes about flatulence 

and bestiality mercilessly interrupted the CBS telecast of Super Bowl XXXVIII from 

Houston last night, making it a dubious choice for family viewing. 

But it was the unexpected climax of the MTV-produced halftime show that 

shocked viewers and set the CBS switchboard ablaze. As a musical number ended, 

out popped one of Janet Jackson’s breasts. Fellow performer Justin Timberlake 

clearly exposed it to the crowd in Reliant Stadium and to the audience of millions 

watching at home by reaching over and yanking off part of her costume. 

Jackson, her nipple covered by a piece of costume jewelry, has not been shy about 

revealing herself in public appearances and magazine photographs, but bare breasts 

are not commonly considered acceptable fare on broadcast network television, especially early in the evening during what used to be called the ‘‘family hour.’’ CBS 

rushed out an apology, but there were reports that MTV had hinted during its afternoon programming that Jackson’s appearance would be one for the record books. 

MTV and CBS are both owned by media conglomerate Viacom. 

‘‘CBS deeply regrets the incident that occurred during the Super Bowl halftime 

show,’’ the statement said. ‘‘We attended all rehearsals throughout the week and 

there was no indication that any such thing would happen. The moment did not conform to CBS broadcast standards, and we would like to apologize to anyone who was 

offended.’’ 

A trio of witless commentators failed to make reference to the Jackson incident, 

but when the second half of the game was delayed by someone dancing around nearVerDate Nov 24 2008 10:35 Jul 13, 2016 Jkt 075679 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\20693.TXT JACKIE
13 

ly naked on the field, the announcers joked in the booth about the ‘‘raw, naked football’’ certain to be just ahead. CBS cameras that had earlier shown Jackson’s exposed breast avoided the streaker, and the director clung instead to a static shot 

of a man at the game. The incident wasn’t fully explained to viewers, but finally 

an announcer said, ‘‘Well, the midfield disturbance has been dispensed with,’’ apparently by a squad of security personnel. 

An exciting game—by Super Bowl standards—between the New England Patriots 

and the Carolina Panthers was upstaged not only by its halftime show but also by 

the ‘‘edgy’’ and often crude humor of the commercials. Over the years—partly because of the huge expense involved—Super Bowl commercials have become widely 

ballyhooed events in themselves, and this year some sponsors, paying up to $2.9 

million for a 30-second spot, went the smut route in order to stand out in the crowd. 

Early in the evening, a supposedly hilarious beer commercial featured a dog that 

was trained to bite men in the crotch and hold on. The man being bitten moaned 

and grimaced in pain and finally surrendered his can of Bud Light. 

As it happened, Bud Light set the standards for tastelessness and self-congratulatory humor. A later commercial, stealing a joke from a classic episode of the sitcom 

‘‘Seinfeld,’’ involved a flatulent horse. The animal, tied to a carriage, emitted an outburst from beneath its tail that caused a candle to burst into flame and burn the 

hair of the woman holding it. A loud sound effect made it clear that the horse was 

suffering digestive distress. 

Many of the other Super Bowl commercials seemed conspicuously inappropriate 

for an event that is a national rite and the kind of rare TV attraction that brings 

families together in front of the set. CBS chose to air a spot advertising the upcoming horror movie ‘‘Van Helsing’’ even though it contained extremely disturbing and 

graphic images of brutality and gore and despite the fact that it has yet to be rated 

by the Motion Picture Association of America. If the film were eventually to be rated 

NC–17, it would be contrary to network policy to carry any commercials for it. 

Based on excerpts shown, ‘‘Van Helsing’’ will earn an R, or Restricted, rating, 

meaning the film is considered suitable for those under 17 only if they are accompanied by a parent or other adult. The ad was wall-to-wall with monsters baring 

fangs and implied horrific violence. 

The negative vibes given off by so many off-color or violent commercials put a 

soggy cloud over what was supposed to be an evening of wholesome fun. Some of 

the spots were funny; Jessica Simpson and the Muppets had a high time in their 

commercial for Pizza Hut, and Homer Simpson starred in a funny spot. 

But the ghastly output from Bud Light included a commercial in which a chimpanzee talked to a beautiful girl as they sat together on a couch while she waited 

for her date to return from the kitchen. The monkey made a pass at the girl and 

asked, ‘‘So, how do you feel about back hair?’’ There was also an excess of commercials for drugs designed to help men suffering from erectile dysfunction. 

Maybe the Super Bowl will have to move from the broadcast networks to the Playboy Channel if its commercials are going to be so dirty that they embarrass parents 

watching with their kids. 

CONSUMERS UNION

Washington, DC, April 6, 2004 

Dear Senator: 

As the Senate prepares to take up S. 2056, the Broadcast Decency Enforcement 

Act, we urge you to preserve the important media ownership and TV violence provisions in the bill as part of an overall solution to stemming the increase of indecency, 

obscenity and violence in broadcast programming. In addition, we ask you to consider a new approach to addressing inappropriate content on cable television—the 

cable a la carte option. By allowing consumers to pick and pay only for the cable 

channels they want in their homes through this option, you will ensure that the 

market is more responsive to families’ concerns about indecency and violence on television. 

While the increased fines in S. 2056 for violations of the Federal Communication 

Commission’s indecency rules are an important step in addressing inappropriate 

broadcast programming, they do not solve the larger problem. Higher fines may periodically deter programming excesses, but it is difficult to see how they will be 

truly effective when the media giants are capable of hiring an army of lawyers to 

fend off whatever enforcement actions the FCC can afford to pursue. As such, families likely will continue to be inundated with programming they find offensive or 

inappropriate. 

14 

We believe that any effort to give families and local communities a say in what 

is broadcast on their public airwaves, and what programming comes into their 

homes, must address the growing threat of media consolidation. Realistic media 

ownership rules must be in place to lessen the influence of massive corporations on 

local broadcast content, as well as to ensure public debate in the local media. Overturning the lax FCC rules, and developing sensible media ownership rules that 

allow for diverse programming that reflects local community interests and values 

is a critical first step in restoring balance between American consumers and corporate media giants. 

As S. 2056 requires, the FCC’s media ownership rules should not, among other 

reasons, be implemented until the impact of media consolidation on indecent programming can be thoroughly studied by the General Accounting Office. When addressing the problem of indecency on our airwaves, it is important to ensure that 

the growing concentration of media ownership in our country has not made the situation worse. 

It is also important to require violent broadcast programming be limited to the 

hours when children are not likely to be watching television, unless that programming is specifically rated on its violent content so it is blockable by electronic 

means. This will empower parents to have more control over the violent broadcast 

programming that their children may watch, and ensure families are not forced to 

put up with gratuitous violence during the few evening hours they can gather together and enjoy television. 

Choice and control also should be available to consumers of cable and satellite 

programming by giving families an a la carte option—the opportunity to pick and 

pay only for the channels they want in their homes. Because the industry offers consumers only tiers or packages of cable channels, a family must block a cable channel 

it finds offensive, yet still must pay a subscription fee for that channel. That fee 

is then passed along to the programmer—a situation that is insulting and unfair, 

since the family is being forced to subsidize the producers of content they consider 

inappropriate. 

To end this practice, we ask you to request the FCC begin creating pilot projects 

or other incentives for cable operators to offer an a la carte option. By allowing consumers the option to pick and pay only for channels they want (while still having 

the choice of purchasing a package of channels), you will ensure that the market 

is responsive to families’ concerns about indecency and violence. 

The cable industry will likely argue that the equipment necessary to offer a la 

carte would increase prices for consumers. However, it is hard to imagine that an 

industry that can offer ‘‘plug and play’’ equipment to prevent piracy, and digital 

boxes to deliver pay-per-view and other packages of services, cannot at the same 

time offer consumers the right to pick the channels they want with this equipment. 

This argument becomes more dubious considering all of Canada’s large cable companies offer digital cable customers an a la carte option, with the right to pick and 

pay individually for those channels offered in packages. 

It is also important to remember consumers on average watch only between 12 

and 18 cable channels, and the right to select the channels they want may save 

many of them money on their skyrocketing cable bills. Cable rates have increased 

three times the rate of inflation since the industry was deregulated in 1996, and 

the a la carte option should provide consumers some relief from the spiraling rates 

charged for cable channel packages. 

We urge you to support S. 2056, including the media ownership and TV violence 

provisions, and the cable a la carte option as a means of addressing inappropriate 

programming aired over both broadcast and cable/satellite networks. 

Respectfully submitted, 

GENE KIMMELMAN, 

Senior Director of Public Policy and Advocacy. 

Senator LAUTENBERG. Thank you very much, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Lautenberg. 

Senator Wyden? 

STATEMENT OF HON. RON WYDEN, 

U.S. SENATOR FROM OREGON 

Senator WYDEN. Thank you, Mr. Chairman. 

Just one point. I think it’s important for the Committee to explore whether the rise of the vulgar, overly violent media can be 

15 

linked to the loss of local ownership and accountability in the 

media. It just seems to me that when the people who choose these 

shows have to go shopping next to the people they may offend, that 

is more likely to generate the kind of responsible programming 

that we’re all concerned about. Plus, it seems to me that if media 

consolidation rushes ahead, there’s a risk that the debate that 

we’re having today, which is so important to the American people, 

is going to be muffled, because when you have newspapers owning 

broadcast stations and the kind of joint ownership issue we’ve been 

exploring, it seems to me it is more—it’s less likely that there’ll be 

the kind of robust debate about these issues that is warranted. 

This Committee has spent a lot of time looking at the question 

of concentration in the media. I just think that there is a link between the rise of vulgar, overly violent media with the fact that 

we’ve lost a lot of local ownership, and I hope we’ll explore it. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Wyden. 

Senator Nelson? 

STATEMENT OF HON. BILL NELSON, 

U.S. SENATOR FROM FLORIDA 

Senator NELSON. Mr. Chairman, may I enter my statement in 

the record? 

The CHAIRMAN. Without objection. 

[The prepared statement of Senator Nelson follows:] 

PREPARED STATEMENT OF HON. BILL NELSON, U.S. SENATOR FROM FLORIDA

Mr. Chairman, I take special interest in this issue because the next Super Bowl 

will be played in my home state of Florida, specifically in Jacksonville. I am curious 

whether one year from now we will be seeing the same sort of halftime show. 

It is more evident than ever that Americans are concerned about the indecent and 

violent programming being broadcast over the public airwaves. The recent Super 

Bowl halftime show is only the latest in a long line of increasingly indecent programming. 

Far too often, people lose sight of the fact that the airwaves used by television 

and radio broadcasters are owned by the public. Because of this, the law is clear 

that broadcasters have the responsibility to act in the public interest. 

The outpouring of anger we have seen in the last 10 days since the Super Bowl 

has helped to crystallize this issue. Millions of families were gathered to enjoy the 

American pastime of watching the Super Bowl and the halftime entertainment. CBS 

instead provided viewers with a highly sexualized halftime show that ended in a 

very inappropriate manner. 

That type of programming simply was not suitable for family-hour television viewing. Some say: if parents don’t like what’s being shown on the television, then turn 

the station. That is not the answer. Parents have an expectation that Super Bowl 

programming will be suitable for everyone in the family to watch. 

I appreciate hearing today from the FCC’s Commissioners. I know that the FCC 

has attempted to strengthen its indecency enforcement in several ways. This Committee has tried to give the FCC enhanced tools to do that important work, such 

as allowing much higher fines to be levied against broadcasters. Frankly, broadcasters also should do their part to exercise some better self-censorship. 

Also, I note that I will continue to examine whether higher levels of consolidation 

in media ownership have played a role in indecent and violent programming. 

Broadcasters must realize that the government has given them the privilege of 

using the public’s airwaves. Continued abuse of that privilege will take us down a 

road that no one wants to travel. 

I thank the Chair and look forward to hearing the testimony of the witnesses 

today. 

16 

Senator NELSON. And I’ll just state to the Commissioners, in addition to what’s been said here, I have a personal interest in this 

because the Super Bowl is going to be in Jacksonville next year 

and I don’t want this kind of stuff in the state of Florida. And you 

all have a responsibility to draw the line in the sand and stop the 

trend that we’re on. And I would suggest that it’s not only about 

this kind of stuff, activities that are questionable to be broadcast, 

but it’s the whole thing of this consolidation, and increasing the 

percentage of the total audience that folks can have, and cross-ownership. 

Just today, an economic earthquake was announced, that 

Comcast is now going to try to acquire Disney and ABC. So here 

we go, the trend of consolidation is continuing. And you’ve got to 

have a regulatory authority that will do something about it and set 

some boundaries. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Nelson. 

Senator Dorgan? 

STATEMENT OF HON. BYRON L. DORGAN, 

U.S. SENATOR FROM NORTH DAKOTA 

Senator DORGAN. Mr. Chairman, I assume everything has been 

said. I’ve been at a different hearing. And I’m pleased to be here. 

Thank you for holding this hearing. 

Let me also say, this is not just about the Super Bowl. It’s not 

about censorship. There is a healthy dose of common sense that’s 

needed, in my judgment, about what should be broadcast over airwaves that belong to the American people, in radio and television. 

And I think every parent in this country knows that the voices of 

indecency—obscenity, violence, and profanity—grow louder and 

louder and louder on broadcast television and radio, and parents 

are furious, and should be. 

Now, the hood ornament on bad judgment, in my opinion, was 

when a Federal agency recently ruled that the ‘‘F’’ word can be 

used on broadcast television as long as it is used only as an adjective. I understand there’s some work now to try to overturn that 

ruling. But when I read about it, I thought, ‘‘Have we lost all common sense?’’ What on earth is happening? 

Let me just make this point. None of this is new. We’re here because of a halftime performance at the Super Bowl, but none of 

this is new. You, Mr. Chairman, Senator Hollings, myself, and 

many others on this panel have talked about these issues and the 

diminished standards and the more coarse language and what is 

happening in broadcast television and radio for years and years 

and years. At some point, common sense has to intervene. 

Again, I hope, whether it’s a regulatory agency taking a look at 

an issue that is so simple, such as the use of the ‘‘F’’ word on 

broadcast television, or issues such as the amount of money that 

ought to be levied as fines, revocation hearings, or allowing local 

affiliates to choose to preempt programming that they find indecent 

or offensive to their communities, I hope we finally perhaps over 

this issue will begin to make some progress. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Dorgan. 

17 

We welcome our colleague, Senator Graham, to the Committee. 

Please proceed, Senator Graham. 

STATEMENT OF HON. LINDSEY O. GRAHAM, 

U.S. SENATOR FROM SOUTH CAROLINA 

Senator GRAHAM. Thank you, Mr. Chairman, and I’ll be very 

brief. 

I appreciate the opportunity to testify. And I find it a bit ironic 

that those of us in politics, we’ve tried to clean our own house, because political debate and discourse in advertising has gotten to be 

trash, and we finally acted, because of Senator McCain’s leadership 

and others, and we’re trying to regulate ourselves. I think it’s a 

great idea that if you run a political commercial explaining why 

your opponent’s a scumbag in 20 different ways, you’ve got to end 

the commercial saying, ‘‘I approved this ad.’’ 

So I think it’s time for us all to take a hard look at ourselves, 

and the public needs to take a hard look at itself. We’re up here— 

you know, never let it be said that I wasn’t part of political piling 

on. That’s why I’m here today. This is a big issue. I’m working with 

Senator Brownback, who’s been a leader on this. Senator Hollings 

has been talking about it for a long time, about what to do. 

But at the end of the day, as Senator Breaux said, people watch 

this because—well, people make the product, because people want 

to watch it. Every show has a production cost, and they figure 

there are enough people who want to watch this stuff, so they 

produce it. 

And consumers need to not feel so helpless. I think we’ve gotten 

to a state in America where if the government doesn’t act, there’s 

nothing we can do. Abercrombie & Fitch had a advertising magazine that was sent to homes, and people rebelled, and they stopped. 

So my message here to the public is, don’t sit on the sidelines yourselves. If you don’t like what you see, let people know. Call the 

Commission, call the advertisers. Sex sells. It always has, and it 

always will. But let me tell you, it has gotten to the point to where 

it really is hurting families. 

The reason I’m here—and I’m, by no means, a prude; and there’s 

some hypocrisy about all of us preaching about this stuff, to hear 

the ‘‘F’’ word and not to use it, but you’re right, there should be 

some boundaries. And Senator Boxer was talking about children. 

That’s why I’m here. I was at the ball game with some friends, 

and—I don’t have any kids, but there were two pre-teens in the 

crowd, and it just made everybody uncomfortable. 

And why are we doing this? Money. The only reason this works 

is because of money. There’s a lot of money in sensationalizing on 

television, and they should have to pay a lot more money. And I 

think the artists should assume some liability. The whole argument is that the television network didn’t know; this was made up 

at the end. Well, then maybe the artists should sign a form that, 

‘‘If I do anything indecent, I’m going to have to pay, myself.’’ So we 

need to bring consequences to the table. 

And my final thought, this Committee, Mr. Chairman, under 

your leadership, with Senator Hollings, acted last summer. This is 

not a new issue. It would be political malpractice for the leadership 

of the Senate, Republican and Democrat, not to bring a bill to the 

18 

floor. People have had it. And if we put this off for another day, 

woe be unto us. 

So I hope our leadership’s got the message. We need to vote, and 

we need to vote soon. 

Thank you for having me. 

[The prepared statement of Senator Graham follows:] 

PREPARED STATEMENT OF HON. LINDSEY O. GRAHAM, U.S. SENATOR FROM SOUTH CAROLINA

Good morning Mr. Chairman, Senator Hollings, and members of the Committee. 

I appreciate the opportunity to appear before you today and I commend you for holding this hearing to address the indecent and obscene material that continues to 

flood television and radio broadcasts. 

For a long time, I’ve been concerned about the growing number of indecent, obscene, and profane material that shows up on our public airwaves. The Super Bowl 

halftime show is only the most recent and widely publicized incident of this problem. An estimated 90 million people watched the Super Bowl. Many of those viewers 

were probably young children, excited about the chance to watch their favorite NFL 

player score a touchdown, and instead were witness to a deplorable stunt. I, like 

many others, was offended by this classless act. I applaud the Federal Communications Commission (FCC) and support its decision to launch an investigation into this 

broadcast. It is encouraging that the FCC is looking into punishing those responsible for broadcasting this type of offensive material, particularly during a time 

when many families are watching television together. 

Of course, we all know about the incident that occurred during last year’s NBC 

broadcast of the Golden Globes, when U2’s lead singer, Bono, used profanity during 

a speech. Although the FCC ruled that the expletive was not used in an obscene 

or profane way, I am encouraged that Commission Chairman Powell has asked 

other members to overturn the decision. I was disappointed with the initial decision 

and encourage the FCC to implement stricter enforcement of indecency standards. 

I do note that the FCC will have issued 18 proposed indecency forfeitures for a total 

of $1.4 million in proposed fines since Chairman Powell took office in January 2001. 

This total significantly succeeds the $850,000 in proposed fines handed down during 

the prior seven years under two prior commissions. This may be a result of the 

FCC’s increased enforcement or declining standards by the networks. Whichever it 

is, there is still much more that needs to be done and I recognize that it is Congress’ 

job to enable the FCC with sufficient tools to better fight indecency on our airways. 

The halftime show and Golden Globes are just two high profile examples of the 

inappropriate, offensive, and embarrassing material broadcasted on our airwaves 

every single day. We have stood on the sidelines for too long and therefore, we have 

let indecent programming get out of hand. As lawmakers, we need to do more to 

protect the public from indecent programming. We must take strong measures to 

rid the public airways of indecency, obscenity, and profanity. 

Yesterday, Senator Brownback and I introduced S. 2056, the ‘‘Broadcast Decency 

Enforcement Act of 2004.’’ This bill was introduced in the House by Representative 

Fred Upton, whom I’ve been working with for some time in efforts to fight against 

the broadcasting of indecent material. S.2056 would allow the FCC to issue fines 

ten times greater than they can issue now for violations of broadcast decency standards. The maximum fine for a violation would increase from $27,500 to $275,000, 

and those that commit continuing violations could be fined up to $3 million. This 

bill will cause broadcasters to think twice before allowing material on the airwaves 

that may be indecent. 

The current maximum fine of $27,500 is no longer punitive in nature. A $27,500 

fine is equivalent to one eightieth the cost of a thirty second Super Bowl ad. By imposing larger penalties, broadcasters will be less likely to take chances in airing material that may violate our indecency laws. 

We need to make sure broadcasters air appropriate programming, especially when 

children are likely to be in the audience. There is a high standard all Americans 

should expect. This standard not only applies to local programming, but large networks as well. Large networks also need to realize that they are not immune from 

tough penalties. It is our job to make sure broadcasters live up to that standard by 

passing laws that will serve as an effective deterrent to those who consider airing 

obscene, indecent, and profane material. 

I am encouraged by the widespread support the ‘‘Broadcast Decency Enforcement 

Act’’ has received. The FCC has endorsed this bill, as well as the Administration. 

19 

Family groups such as Focus on the Family have also expressed their support. I 

urge my colleagues to join in the fight to clean up our airwaves. The FCC has an 

important role in protecting Americans, especially children, from indecent programming. We must give the FCC the necessary tools to enforce indecency restrictions 

in the most effective manner possible. 

Mr. Chairman, once again I applaud the Committee for holding this hearing and 

for your commitment to protect America’s children from indecent broadcasting. 

The CHAIRMAN. Thank you very much, Senator Graham, and we 

appreciate your patience, and we appreciate your testimony. 

We’d now like to hear from the Honorable Michael Powell, who’s 

the Chairman of the Federal Communications Commission, and the 

other Commissioners, who are the Honorable Kathleen Abernathy, 

the Honorable Michael Copps, the Honorable Kevin Martin, and 

the Honorable Jonathan Adelstein. 

I welcome the Commissioners. I think that the Commissioners 

understand the mood here, and perhaps in their remarks they 

could respond to some of the comments of the Members of the Committee. And I thank all of you for coming today. Chairman Powell, 

it’s always a pleasure to have you here before the Committee, and 

we look forward to your statement. 

We’ll begin with you, Chairman Powell. 

STATEMENT OF HON. MICHAEL K. POWELL, CHAIRMAN, 

FEDERAL COMMUNICATIONS COMMISSION 

Chairman POWELL. Thank you, Mr. Chairman. Good morning to 

you and the distinguished Members of the Committee. It’s always 

a pleasure to be here with my colleagues. 

The infamous Super Bowl show, which I think I agree with Senator Boxer, was more than just the final incident, but was outrageous throughout. Not only was it outrageous and offending to 

children, I think it’s important to note it’s enormously degrading to 

women to suggest that was proper behavior. But it is just the latest 

example in what we’ve noted is a growing list of deplorable incidents on the Nation’s airwaves. The increasing concern about 

coarseness has resulted in a dramatic rise in public concern. We’ve 

received 200,000 complaints on the Super Bowl incident alone. A 

recent Time/CNN study found that 47 percent of Americans said 

the incident marked, quote, ‘‘a new low in bad taste.’’ I couldn’t 

agree more, as a parent of two young sons, about the erosion of 

common decency standards on television. 

As a member of the FCC, I can assure all Americans here today 

that the Commission will continue to protect children and respond 

to the public’s concerns. Under our authority, and consistent with 

the First Amendment, we will continually vigorously enforce our 

indecency rules. To punctuate that point, within hours of the Super 

Bowl incident, we launched our investigation into whether it violated the law. This investigation will be thorough and swift. In addition, a decision to propose to overturn the bureau’s decision in 

the Golden Globe case about the ‘‘F’’ word is imminent. 

Protecting children and giving parents the tools to restrict inappropriate programming from unexpectedly invading our family 

rooms requires action, however, on all fronts. The efforts first begin 

with the Commission. This Commission, me and my colleagues, are 

pushing what I think is the most aggressive enforcement regime in 

decades. This Commission alone has proposed nearly ten times the 

20 

level of indecency fines of the previous Commission, and two times 

the two previous Commissions combined. But it is not enough, and 

we are continuing to work to sharpen our enforcement blade even 

more. 

Let me just list some of the things we have done, and are doing. First, we recognize that $27,500 fines constitute peanuts to a multimillion dollar operation, and we are seeking ways to increase penalties on our own against those who engage in lasting and repetitive incidents by taking steps routinely to impose the statutory 

maximum for serious violations. We also have put broadcasters on 

notice that we will, as you recommended, treat multiple incidents 

and utterances, if in a single programming, as constituting multiple indecency violations. We have also put broadcasters on notice 

in recent decisions that we will begin license revocation proceedings for egregious and continuing disregard of decency laws. 

We will pursue indecent programming on television more aggressively. We will continue to work aggressively to answer complaints 

in a timely manner. Just in the last 2 years, we’ve made significant 

progress on backlogs. Of the 14,000 complaints filed in 2002, only 

30 remain pending, and many of them are on the way to the Commission now. And we will continue to vigorously monitor industry 

developments to see if they, indeed, meet the challenge. 

The Commission has already begun wielding our sword in several important respects. We proposed some of the largest fines in 

indecency enforcement history, including a proposed forfeiture of 

over $350,000 in the case of a vile and disgusting broadcast on sexual content in Saint Patrick’s Cathedral in New York. We recently 

proposed a fine reaching nearly $750,000 levied against Clear 

Channel stations for over 20 indecency violations. And, finally, last 

month we opened a new front in our efforts to protect children, 

fining a San Francisco television station the maximum when it 

aired a program in which a performer exposed himself in front of 

the camera, making it one of the first fines against television in the 

Commission’s history. And just last week, we took steps to challenge the broadcasting industry to commit themselves to protecting 

children. 

Senator Hollings, we don’t believe voluntary efforts are the sole 

answer. Enforcement is an important answer. But broadcasters 

have their own responsibility to take charge of their own industry, 

and we’ve challenged them to do so. There was a long, proud tradition of the broadcasting industry having a code of conduct that was 

used and faithfully employed. It was struck down in the courts. I 

think there are ways to revive it, and we challenge them to do so. 

We also agree with many of the comments here today that you 

can’t have an honest conversation about content in the media if 

you’re not willing to talk about the cable industry. We’ve also written to them, challenging them to look for new ways to protect their 

interests, and we ask the Committee to lead a debate about the 

proper ways to consider the concerns with cable, understanding different legal and First Amendment status. 

But to succeed fully in protecting our children from the proliferation of inappropriate and excess vile content, Congress also has a 

critical role to play, and I applaud the efforts of Senator 

Brownback, Senator Graham, Senator Hollings, other Members of 

21 

this Committee and the Chairman, for trying to move bills that are 

important on this issue. 

We definitely need the increased enforcement authority. We have 

said so repeatedly. And, as this Committee has recognized, it is an 

important component to effective deterrence. The time has come— 

to echo the words of Senator Brownback—the time has come for 

the Commission, Congress, and the industry, and the public, as 

Senator Graham said, to take the necessary steps to prevent allowing the worst of television and all that it has to offer from reaching 

unsuspecting children. I commit to you that this Commission, me 

and my colleagues, will continue to put our resources into vigorously enforcing the rules. And I urge Congress to assist us in that 

effort and urge the Commission to do its part—urge the industry 

to do its part to protect our children. 

Thank you, and I await your questions. 

[The prepared statement of Chairman Powell follows:] 

PREPARED STATEMENT OF HON. MICHAEL K. POWELL, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION

Good morning, Mr. Chairman and distinguished Members of the Committee. It is 

my pleasure to come before you today with my colleagues on the Commission to discuss our collective efforts to protect children from sexual, violent and profane content. 

The now infamous display during the Super Bowl halftime show, which represented a new low in prime time television, is just the latest example in a growing 

list of deplorable incidents over the Nation’s airwaves. This growing coarseness on 

television and radio has resulted in a dramatic rise in public concern and outrage 

about what is being broadcast into their homes. Over 200,000 concerned citizens and 

counting have filed complaints with the Commission on the Super Bowl incident 

alone. As a parent, I share the displeasure and fatigue of millions of Americans 

about the erosion of common decency standards on television. 

As the Federal agency responsible for punishing those who peddle indecent broadcast programming, I can assure all Americans that my colleagues and I will continue to protect children and respond to the public’s concerns. Under our authority, 

and consistent with the First Amendment, we will continue to vigorously enforce our 

indecency rules. To punctuate the point, within hours of the Super Bowl incident, 

we launched our investigation into whether there was a violation of the law. This 

investigation will be thorough and swift. 

The Rise of Public Concern 

Although the Super Bowl halftime show was a new low for broadcast television 

(a recent poll found 47 percent of Americans said the incident marked ‘‘a new low 

in bad taste’’), a quick flip around the dial during what was once considered the 

family hour, reveals coarse content, wholly inappropriate for a time when children 

can be expected to be watching. There are reality and dating shows with heavy sexual themes or scripted programs that feature gratuitous violence and increasing profanity. Turn the channel and you are likely to see a new program trying to push 

the envelope-all in an effort to try and grab ratings and keep viewers. 

Indeed, as new technologies have afforded the public with an abundance of programming in recent years, audiences, especially in television continue to fragment. 

A recent Commission study found that the average television household had 82 

channels available to it in 2001, up from merely 10 channels in 1980. Over the last 

two years, that number has only increased. In fact, last year marked the second consecutive year where more viewers were watching cable programming during the 

prime time hours than they were broadcast programming. This hyper-competition 

for audience share and ratings has tempted broadcasters to capture share by resorting to ever more crass, sexual or violent programming. 

As evidenced by the rise in the number of complaints at the Commission, Americans are taking unfavorable notice. In addition to the over 200,000 complaints we 

received regarding the Super Bowl, 2003 saw the most indecency complaints in the 

Commission’s history. Over 240,000 complaints were filed at the Commission last 

year. As complaints have risen dramatically, however, the actual number of programs that our citizens complained about to the Commission actually declined from 

22 

2002 to 2003 (from 389 programs to 375 programs). Furthermore, indecency complaints have historically been focused on broadcast radio programming. Indeed, only 

in the last two years has the Commission received more television than radio complaints. Television complaints have largely focused on the broadcast medium (217), 

outpacing cable (36) complaints over six to one. 

At the Commission, we have increased our indecency enforcement efforts to protect our children against the increase in coarse programming and in response to the 

growing concerns expressed by the public about the content being broadcast over our 

airwaves. Protecting children and giving parents the tools to prevent inappropriate 

programming from invading our family rooms requires action on all fronts. 

The Commission’s Strong Enforcement Stance 

The effort begins with the Commission. This Commission boasts the most aggressive enforcement regime in decades, proposing nearly ten times the level of indecency fines than the previous Commission. And, we are taking additional steps to 

sharpen our enforcement blade: 

• Recognizing that $27,500 fines constitute peanuts to multi-million dollar operations, we will actively seek ways to increase penalties against those who engage in lasting and repetitive indecent programming, including taking steps to 

impose the statutory maximum for serious violations of the law (up from $7,000 

fines of previous Commissions); 

• We will treat multiple indecent utterances with a single program as constituting multiple indecency violations. I commend Commissioner Martin for his 

leadership on this issue; 

• We will begin license revocation proceedings for egregious and continuing disregard of decency laws. Commissioner Copps’ efforts on this issue are particularly noteworthy; 

• We will pursue indecent programming on television more aggressively-including 

our proposal to overturn the Enforcement Bureau’s decision in the Golden 

Globes case-a decision by the Commission in that case is imminent; 

• We will continue to work aggressively to answer complaints in a timely manner 

(of the 14,000 complaints filed in 2002 only 30 remain pending) and bring more 

cases up to the full Commission for review; and 

• We will continue to vigorously monitor industry developments to see if they, indeed, meet the challenge of their responsibilities to protect our children. 

Indeed, the Commission has already begun wielding our sword in several important respects. We have proposed some of the largest fines in our indecency enforcement history, including a proposed forfeiture of over $300,000 in the case of a broadcast of sexual conduct in St. Patrick’s Cathedral in New York and a proposed fine 

of over $700,000 levied against various Clear Channel stations for over 20 indecency 

violations. 

In addition, last month, we opened a new front in our effort to protect children 

by fining a San Francisco television station the statutory maximum of $27,500 when 

it aired a program in which a performer exposed himself in front of the camera— 

marking one of the first ever fines against a television station in Commission history. Just this week, I have personally called on the broadcast and cable industry 

step to the forefront and take affirmative steps to commit themselves to protecting 

children. Specifically, I have challenged broadcasters to re-institute a voluntary 

Code of Conduct and urged the broadcast and cable industries to work with the public to take other steps, such as educational and outreach campaigns and providing 

for a delay for live entertainment performance events. 

As the Commission continues to strengthen its enforcement, it needs the help of 

both Congress and the industry in the fight for our children. I urge, in the strongest 

terms, Congress to adopt legislation that will increase the statutory maximum of 

our forfeiture penalties at least ten-fold. I commend Congressman Upton and Senator Brownback and those Members supporting their respective bills for their leadership on this issue. We need this increased authority to ensure that our enforcement actions are meaningful deterrents and not merely a cost of doing business. Additionally, this deterrent effect can also spread to other types of coarse or inappropriate programming not suitable for our children, such as excessive violence. 

A Call to Action 

The Commission, Congress and the public cannot stand alone in this fight to protect our children. Indeed, action must be taken by the entire television and radio 

industry to heed the public’s outcry and take affirmative steps to curb the race to 

the bottom. This industry simply must help clean up its own room. 

23 

I have written the broadcast industry, the major television networks and the cable 

industry and challenged them to take affirmative steps consistent with antitrust law 

and within the limits of the First Amendment, to curb indecent, inappropriate and 

violent programming. 

The industry has the ability to join our efforts to protect children, and it must. 

Specifically, I have challenged the National Association of Broadcasters and the network’s owned and operated stations to work with their broadcast members and the 

public to reinstate a voluntary code of conduct. Such a code is necessary to establish 

effective guidance and best practices to local broadcasters so that they can best address the needs and concerns of parents, children and local communities. 

I believe these steps would also give the public a meaningful standard by which 

to measure performance of the industry over time and demonstrate broadcasters’ 

unwavering commitment to serving the needs of local communities and to help stem 

the surging tide of offensive programming. 

In addition, I have asked that the networks themselves continue to take affirmative steps to better protect the public. I am heartened by recent efforts to reinstitute 

a delay into live broadcasts of award shows to prevent unwarranted profanity from 

infiltrating our airwaves and urge the industry to make this routine practice. Their 

actions, however, can and must not stop there. 

Finally, like the broadcasters, I have challenged the cable industry to engage and 

educate the public about the best family-friendly programming that cable has to 

offer and how best to use the technological tools available to prevent those channels 

and programs that are inappropriate for children from reaching their eyes and ears. 

I have asked all interested parties to inform me of their progress on this front within the next thirty days. Commissioner Abernathy’s leadership in developing the 

FCC’s Parent’s Page is an important beginning in these efforts. 

The rise of cable and satellite programming and the development of new broadcast networks have brought our citizens the very best television and radio programming that it has had to offer in its seventy-five year history. We have also, however, 

seen some of the worst. The time has come for us to work collectively—the Commission, the Congress, the industry and the public to keep the seedy worst of television 

from reaching our children and to help parents make the choices that are best for 

them. I commit to you that this Commission will continue to put our resources into 

vigorously enforcing our indecency rules. I urge Congress to assist us in these efforts 

and look for the industry to step up and do its part to protect our Nation’s children. 

I look forward to working together with my Commission colleagues to advance the 

public interest on these important issues. 

Thank you, I will be happy to answer any of your questions. 

The CHAIRMAN. Thank you very much. 

Ms. Abernathy? 

STATEMENT OF HON. KATHLEEN Q. ABERNATHY, 

COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION 

Commissioner ABERNATHY. Good morning, Mr. Chairman, Senator Hollings, and distinguished Members of the Committee. I appreciate the opportunity to appear before you this morning to discuss the FCC’s efforts to protect children from indecent and violent 

programming. 

This hearing is a most timely response to an increasingly urgent 

set of problems, and the 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 and 

cable and video games. And it is not simply an issue with regard 

to excessive sexual content in mainstream programming; it is also 

reflected in the excessively violent content of material distributed 

to children via broadcasting and the Internet, as pointed out by 

Senator Boxer. This has occurred despite the Commission’s vigorous enforcement of the indecency laws, despite our announcement that these efforts would be further intensified by per-utterance fines, despite our putting broadcasters on notice that they’re 

24 

putting their licenses at risk, and despite pending Congressional 

legislation to increase our forfeiture authority. 

Clearly, some broadcasters have forgotten their public interest 

obligations and the critical role that they play in forming and shaping our 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 wholeheartedly 

support your efforts to increase our forfeiture authority. As already 

pointed out, the current statutory maximum of $27,500 is simply 

a slap on the wrist. 

The FCC also must do more to clarify the legal parameters regarding the broadcast of indecent material. Unfortunately, prior 

Commissions failed to take up this issue, and we are now forced 

to reconsider prior precedent and provide new guidance to broadcast licensees. So, for example, relying on past Commission rulings, 

the enforcement bureau recently issued a decision determining that 

Bono’s language used during the Golden Globes was not indecent. 

While I don’t want to comment on what action the full Commission 

may ultimately take, I will say this. It’s very hard to imagine many 

contexts where the particular obscenity would not be patently offensive under contemporary community standards. 

We must also recognize, however, that our enforcement-based 

measures, at their best, are necessarily after the fact, and monetary penalties alone may not fully prevent future misconduct, especially when it comes to live broadcast radio or TV programming. 

Therefore, in addition to current, and even enhanced, enforcement 

measures, we should improve and amplify forward-looking safeguards. 

Our laws try to help parents understand and control the programs their children watch in several different ways. Although our 

rules limit the hours during which indecent programming may be 

broadcast, it is perhaps even more important to understand what 

options are available to protect children from the adult programs 

that broadcast during the main part of the day, programs that may 

not be indecent, but include excessive violence, excessive sexual 

content, or are simply inappropriate for children. The V-chip and 

the programs ratings legislation that Congress passed are intended 

to help parents understand the content of broadcast programs and 

control access into the homes. 

Is this system working well? Clearly not. Most parents do not understand how to use the V-chip and are unaware that a TV ratings 

system exists. And the shortcomings of these early warning systems are even more troubling as applied to violent programming, 

which, unlike indecency, is not subject to FCC enforcement sanctions. This is not because violence is less prevalent on television 

than indecency. On the contrary. As pointed out by Senator Hollings, a recent report by the Kaiser Family Foundation found that 

nearly two out of three programs contained some violence, averaging six violent acts per hour. 

I know that you’ve grappled with the many legal and practical 

issues involved in attempting to legislatively define and limit televised violence, but, in the absence of statutory authority, the Commission is reaching out to the public to help make parents aware 

of the V-chip and the program rating system and how to use them. 

25 

1Zero to Six, Electronic Media in the Lives of Infants, Toddlers and Preschoolers, Fall 2003, 

The Henry J. Kaiser Family Foundation. 

I’ve tried to address this problem by working with the FCC’s Consumer and Governmental Affairs Bureau to create a new website, 

the FCC’s Parents Place. Parents Place explains the ratings systems, including what they mean and when the ratings are displayed, and directs parents to websites that identify age-appropriate programming by locality. It also explains the V-chip and 

other blocking tools, including lock-boxes. 

But any system based on giving advance notice to parents will 

only work when advance notice and information is, in fact, made 

available. As last week’s Super Bowl incident showed, this system 

simply won’t work in the face of surprise. So we must also consider 

ways to eliminate the kind of surprise indecency that thwarts the 

best efforts of even the most vigilant parents. 

Because such unwelcome surprises seem most apt to happen during live broadcasts, we should begin by evaluating the effectiveness 

of audio and video delays 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 realtime protection. 

I also believe we’ll need to enlist the help of broadcasters if we 

are ultimately to address the core of consumer concerns, because 

the issues encompass more than simply what is or is not indecent 

programming. 

Mr. Chairman, if there is anything positive at all to be said 

about what’s 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 violent programming and while also continuing to tap into the best of what broadcasting has to offer. 

In response to these challenges, I fully support both 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 this Committee may 

wish. 

Thank you. 

[The prepared statement of Commissioner Abernathy follows:] 

PREPARED STATEMENT OF HON. KATHLEEN Q. ABERNATHY, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION

Good morning Mr. Chairman, Senator Hollings, and distinguished Members of the 

Committee. I appreciate the opportunity to appear before you this morning to discuss the FCC’s efforts to protect children from indecent and violent 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 wellbeing 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 

26 

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 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 wellbeing 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 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. 

27 

2See, e.g., Parents and the V-Chip 2001, July 2001, The Henry J. Kaiser Family Foundation. 3TV Violence, Spring 2003, The Henry J. Kaiser Family Foundation. 

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 to 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 shortcomings of the present parent advisory-based system are more troubling, 

especially when it comes to facilitating the screening of violent programming which, 

unlike indecency, is not subject to FCC enforcement sanctions. This is not because 

violence is less prevalent on television than indecency; on the contrary, a recent report by the Kaiser Family Foundation found that nearly two out of three programs 

contained some violence, averaging about six violent acts per hour. Moreover, identifiable harm resulting from televised violence has been documented: laboratory experiments have found that exposure to media violence increases children’s tolerance 

for real-life aggression.3

This Committee has grappled with the many legal and practical issues involved 

in attempting legislatively to define and limit televised violence. In the absence of 

statutory authority, 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 website 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 websites that identify ageappropriate 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 is, 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 broadVerDate Nov 24 2008 10:35 Jul 13, 2016 Jkt 075679 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\20693.TXT JACKIE
28 

casters 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 both 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. 

The CHAIRMAN. Thank you very much. 

Dr. Copps? 

STATEMENT OF HON. MICHAEL J. COPPS, COMMISSIONER, 

FEDERAL COMMUNICATIONS COMMISSION 

Dr. COPPS. Mr. Chairman, Senator Hollings, Members of the 

Committee, thank you for having us up here this morning to talk 

about an issue that has all America talking. This is not the first 

time I have expressed my concern to this Committee on the important issue of indecent and violent programming on the public’s airwaves. America has a problem. And this Committee has responded 

to that problem with vision and vigor, and that’s exactly what this 

battle against indecency requires. 

There is frustration out there, and there is anger. I saw the people’s anger all last year, when Commissioner Adelstein and I took 

to the road in our media ownership forums. And I saw it again just 

2 weeks ago, before the Super Bowl, when all the Commissioners 

were in San Antonio. Parents lined up to talk from their heart 

about programming’s addiction to sex, violence, and profanity. People all across this land of ours are demanding action—action now— 

to stop the increasing sex and violence bombarding our airwaves. 

Certainly, there have been a couple of high-profile incidents that 

have garnered widespread attention, none more so than last week’s 

shameful halftime display at the Super Bowl. But they’re just the 

tip of the iceberg. The real test for the FCC is how we address the 

thousands of other complaints pertaining to hundreds of other programs. And, so far, we don’t have any results to crow about, and 

the airwaves keep deteriorating. 

To tackle the problem of sex and violence on our airwaves, I am 

all for additional authority from Congress. We need all the help 

and all the push that you can give us. But, in the meantime, I 

want to see the Commission use the arrows we already carry in our 

quiver. Accordingly, I’m asking my colleagues to take the following 

five concrete steps. 

Number one, use our full authority to punish transgressors—license revocation, license non-renewal, and higher fines. We need to 

send the more outrageous transgression and repeat offenders to liVerDate Nov 24 2008 10:35 Jul 13, 2016 Jkt 075679 PO 00000 Frm 00032 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\20693.TXT JACKIE
29 

cense-revocation hearings. We need to do it now. The Commission 

has never used this authority, and nothing would send so powerful 

a message to those who produce these programs. We need to impose meaningful fines for each utterance, rather than more mere 

cost of doing business fines. 

We need to get serious about enforcing the profanity part of the 

statute. It sits there, ignored. Let’s also look at advertisements, as 

well as programs. 

And we need to establish an effective license-renewal process 

that meets our responsibility not to renew the licenses of those who 

traffic in indecent and violent programming. Companies that do not 

serve the public interest should not hold a public license. 

Two, reform the complaint process. The Commission should commit to addressing all complaints within a specific timeframe, such 

as 90 days. It’s the Commission’s responsibility to investigate complaints that the law has been violated, not the citizen’s burden to 

prove the violation. There is much we can do to make the complaint process user-friendly, and Commissioners themselves, rather 

than the bureau, should be making the important indecency calls. 

Three, tackle graphic violence. Compelling arguments have been 

made that excessive violence is every bit as indecent as the steamiest sex. Senator Hollings, Senator Brownback, and others on this 

Committee have been eloquent champions of action on this front. 

The Commission needs to move on this now. 

Four, convene an industry summit that includes broadcasting, 

cable, and DBS. Industry does need to step up to the plate to tackle 

the issues of indecent and violent programming. I’ll bet there isn’t 

one executive sitting in this room today, who has not heard my personal plea on this over the past two and a half years, and I’m 

pleased to learn that the Chairman is joining me in this effort. 

Broadcasters used to police themselves with a voluntary code. It 

wasn’t perfect, but it was credible. Why can’t they try to do it 

again? This summit needs to includes—absolutely must include— 

cable and satellite providers. Perhaps cable could explore such options as offering a family tier. My colleague, Commissioner Martin, 

has made positive suggestions about this. Cable could also make 

sure that family channels offer all family friendly programming. 

And broadcasters could commit to family hours during prime time. 

I’m mindful of Senator Hollings’ admonition that voluntary is no 

substitute for us doing our job and for us enforcing the law; nor can 

it be allowed to let anybody off the hook. Still, I believe it could 

contribute. 

Five, affirm the rights of local broadcasters to control their programming. In 2001, local broadcasters filed a petition alleging that 

networks are hindering affiliates’ ability to preempt broadcast network programming not suitable for their communities. This petition has sat unaddressed for over 2 years. The Commission needs 

to issue a decision. 

One other thought, and I think it’s important. At the same time 

that we have not been adequately enforcing indecency laws, the 

Commission has been loosening media concentration protections 

without considering whether there is a link between increasing 

media consolidation and increasing indecency. It makes sense that 

as media conglomerates grow ever bigger and control moves further 

30 

away from the local community, community standards go by the 

board. We opened the doors to unprecedented levels of media consolidation, and what do we get in return? More filth, less real 

news, and a lot of programming that our kids just should not be 

experiencing. We should have examined this last year before we 

opened the doors to more concentration. 

The consolidation locomotive continues to steam down the track. 

As was already mentioned, the wires reported this morning a bid 

by Comcast to take over Disney. And I think we’ll all need to think 

about how that could affect the ability to control both distribution 

and content. 

In closing, I want to see this Commission really step forward and 

focus on the things we can do with the authority you long ago gave 

us. This is about the public interest, responsible broadcasting, and 

the well-being of our kids. This is about telling millions of Americans that we’re going to see this job through. 

So thank you for this hearing. It’s a true public service. Thank 

you for the commitment and leadership so many of you on this 

Committee bring to this legal and moral issue. And I look forward 

to hearing your comments and further thoughts on all of this. 

[The prepared statement of Commissioner Copps follows:] 

PREPARED STATEMENT OF HON. MICHAEL J. COPPS, COMMISSIONER, 

FEDERAL COMMUNICATIONS COMMISSION

Mr. Chairman, Senator Hollings, Members of the Committee, I am honored to appear before you again this morning. This is not the first time that I have addressed 

this Committee on the important issue of indecent and violent programming on the 

public’s airwaves. I appreciate the attention you have devoted to this issue and for 

inviting me to share some of my perspectives, and more importantly, to hear yours. 

Every time I boot up my FCC computer, every time I visit a town or city across 

America, I hear the same refrain from people: we are fed up with the patently offensive programming—the garbage—coming our way so much of the time. I saw the 

people’s anger all last year when Commissioner Adelstein and I took to the road in 

our media ownership forums, and I saw it again just two weeks ago when all the 

Commissioners were in San Antonio—parents lined up to express their frustration 

with programming’s addiction to sex, violence and profanity. We even heard from 

children who were fed up with what they’re seeing and hearing. People all across 

this land of ours are demanding action—action now—to stop the increasing sex and 

violence bombarding their airwaves. 

Indecency was the subject of my first statement when I arrived at the FCC in 

2001. For much of the past two and a half years, it has been an uphill battle. I am 

pleased that the Commission now seems to be coming around to the idea that we 

need to take action against indecency. I hope we will now also get serious about our 

obligation to enforce the profanity part of the statute. In any event, I will know the 

Commission is serious about tackling indecency when we compile a record to match 

our rhetoric. We are not there yet. 

Certainly there have been a couple of high profile incidents that have garnered 

widespread attention, none more so than last week’s shameful half-time display at 

the Super Bowl, as probably a quarter billion people around the world watched us 

celebrate what should have been an all-American evening of sports and artistic creativity for the entire family. We got something far different. This latest episode has 

had a galvanizing effect both within and outside the Commission. Sometimes one 

incident can spark a revolution, but the seeds of this revolution have been building—and have been painfully obvious—for a long, long time. 

The real test for the FCC is not how we address this particular incident, although 

what we do and how quickly we do it will be instructive. The real test is how the 

Commission addresses the thousands of other complaints pertaining to hundreds of 

other programs. And we have so far failed this test. Let’s look at the facts. Under 

the FCC numbers, which at that time significantly under-counted the number of 

complaints we actually received, there were almost 14,000 complaints about 389 different programs in 2002. Yet, of those hundreds of programs, we issued a mere 

31 

seven notices of apparent liability (NALs) that year—and only two of those have 

been fully resolved. In 2003, the number of complaints jumped to over 240,000 and 

concerned 375 different programs. Yet, this past year we issued only three NALs. 

If I was a Big Media executive or an advertising consultant figuring out how to attract all those 18–34 year old eyeballs to shows so I could sell them products, I 

wouldn’t exactly be quaking in my boots that the big hammer of the FCC was about 

to cause me serious pain. I’d say: ‘‘There aren’t any torpedoes, full speed ahead.’’ 

Too many indecency complaints from consumers and an avalanche of truly indecent 

broadcasts are falling through the cracks. Concerned parents are paying the price. 

Worse, our kids are paying a price they shouldn’t have to pay. 

‘‘Why don’t those parents just turn the set off,’’ I have been told as I push to get 

some action on indecency. But are we supposed to just turn off the all-American 

Super Bowl? The half-time show gives the lie to that one. ‘‘Let the V-Chip handle 

it’’ is another refrain I hear. Don’t get me wrong, I like the V-Chip. But it was irrelevant that Sunday night. How do you warn against half-time shows or slimy ads 

or sensation-seeking previews of coming movie and television attractions? 

Not enough has changed over the past few years in the FCC’s enforcement of the 

indecency laws. And at the same time, I believe that some of the Commission’s actions pretty much guarantee that things will get even worse. Instead of enforcing 

indecency laws, the Commission recently rewarded giant station owners by dismantling media concentration rules that provided at least some protection against too 

few Big Media companies owning too many broadcasting outlets. We open the door 

to unprecedented levels of media consolidation and what do we get in return? More 

garbage, less real news and progressively crasser entertainment. Should we really 

be surprised that two of the very biggest media conglomerates—Viacom and Clear 

Channel—alone accounted for more than 80 per cent of those fines that were proposed for indecency? We weakened our concentration rules without even considering 

whether there is a link between increasing media consolidation and increasing indecency on our airwaves. It makes intuitive sense that there is. As media conglomerates grow ever bigger and control moves further away from the local community, 

it stands to reason that community standards go by the boards. Who is going to be 

more attuned to community standards—the national owner who is driven by Wall 

Street and Madison Avenue, or a broadcaster closer to the local scene and who, in 

some communities, you still see at church, at the store, and around town? I begged 

for us to study what relationship exists between the rising tide of media consolidation and the rising tide of media indecency before we voted on June 2 to loosen the 

ownership safeguards. I thought we owed that to our kids. Maybe now the rising 

tide of public anger will force some action. 

We know this: there is a law against indecency. The courts have upheld it. And 

each one of us at this table has an obligation to enforce that law in a credible and 

effective way. Each of us has a mandate to protect children from obscene, indecent 

and profane programming. 

Some have argued that the Commission needs additional authority from Congress 

so that it can make a serious effort to stop indecency. I am all for more authority. 

But in the meantime, let us use the arrows we already hold in our quiver. Accordingly, I am asking my colleagues to take the following five steps, all of which can 

be done under our current statutory authority and which would send a strong message that the FCC is serious about eliminating indecency on our television sets and 

radios. 

1. Use Our Full Authority to Punish Transgressors—License Revocation, License 

Non-Renewal and Higher Fines: We need to send some of the more outrageous 

transgressions and repeat offenders to license revocation hearings. Taking 

some blatant offender’s license away would let everyone know that the FCC 

had finally gotten serious about its responsibilities, and I think we would see 

an almost instantaneous slamming on of the brakes in the race to the bottom. 

The Commission has never used this authority. 

If the Commission can’t bring itself to do this, we should at least be imposing 

meaningful fines. ‘‘Cost of doing business fines’’ will never stop Big Media’s 

slide to the bottom. We should have long since been fining violators for each 

utterance on a program, rather than treating the whole program as just one 

instance of indecency. All of the fines we have imposed against Viacom could 

be paid for by adding one commercial to the Super Bowl—and the company 

would probably end up with a profit. Fining every utterance could lead to significantly higher fines. We have long had the authority to take this step. We 

should have been using this authority years ago. 

The Commission should also establish an effective license renewal process 

under which we would once again actually consider the manner in which a staVerDate Nov 24 2008 10:35 Jul 13, 2016 Jkt 075679 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\20693.TXT JACKIE
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tion has served the public interest when it comes time to renew its license. It 

is our responsibility not to renew the licenses of those who air excessive 

amounts of indecent and violent programming. We need to take our job seriously in the license renewal process. It all comes down to this: station owners 

aren’t given licenses to use the public’s airwaves to peddle smut. They are 

given licenses to serve the public interest. When they no longer serve the public 

interest, they should no longer hold a public license. 

2. Reform the Complaint Process: The process by which the FCC has enforced the 

indecency laws has for too long placed inordinate responsibility upon the complaining citizen. That’s just wrong. It is the Commission’s responsibility to investigate complaints that the law has been violated, not the citizen’s responsibility to prove the violations. 

The Commission should commit to addressing all complaints within a specific 

time-frame such as 90 days. Today, when complaints often languish, the message is loud and clear that the FCC is not serious about enforcing our Nation’s 

laws. Recent cases such as Infinity’s repulsive WKRK–FM case, Infinity’s Opie 

and Anthony show and Clear Channel’s ‘‘Bubba the Love Sponge’’ all took more 

than a year for an initial decision. Congress expected action from the FCC, but 

all too often our citizens’ complaints seem buried in bureaucratic delay or 

worse. I would add here that some of this material goes beyond the indecent 

to the obscene. We ought to treat it as such and move against it or, if we’re 

still timorous about it, send it over to the Department of Justice with a recommendation for criminal proceedings. 

Lack of complete information about what was said and when it was broadcast 

should not be allowed to derail our enforcement of the laws. The Commission 

appears to be coming around to the idea that a tape or transcript is not required. Yet, the Commission’s website still seems to indicate that this information is needed or a complaint will be dismissed without an investigation. I have 

suggested that broadcasters voluntarily retain tapes of their broadcasts for a 

reasonable period of time. Many broadcasters already retain such recordings, 

but I believe that all broadcasters should do so. That way, when someone complains about what went out on the public airwaves we can have a record to 

see how those airwaves were used—or abused. 

And, in matters of such importance, I believe the Commissioners themselves, 

rather than the Bureau, should be making the decisions. Issues of indecency 

on the people’s airwaves are important to millions of Americans. I believe they 

merit, indeed compel, Commissioner-level action. 

3. Tackle Graphic Violence: It’s time for us to step up to the plate and tackle the 

wanton violence our kids are served up every day. Senator Hollings, Senator 

Brownback and others on this Committee have been eloquent champions of 

this for years. Compelling arguments have been made that excessive violence 

is every bit as indecent as anything else that’s broadcast. Those arguments are 

strong enough to demand our attention. We don’t need more studies. Over the 

years, dozens of studies have documented that excessive violence has hugely 

detrimental effects, particularly on young people. I don’t say this is a simple 

problem to resolve, because it is not. But that’s no excuse to run away from 

it. Wanton violence on the people’s airwaves has gone unaddressed too long. 

Here too, we pay a high price, especially the kids. 

4. Convene an Industry Summit that includes Cable and DBS: I have long suggested, without much success, that broadcasters voluntarily tackle the issues 

of indecent and violent programming. I’ll bet there is not one industry executive sitting in this room today who hasn’t heard my plea on this over the past 

two-and-a-half years. Many of you will remember the Voluntary Code of Broadcaster Conduct that for decades saw the industry practicing some self-discipline 

in the presentation of sex, alcohol, drug abuse and much else. It didn’t always 

work perfectly, but at least it was a serious and credible effort premised on 

the idea that we can be well-entertained without sinking further into the bottomless depths of indecency. The issue here is not forcing industry to do this; 

it’s a question of why doesn’t industry step up to the plate and have a conversation with itself that tens of millions of Americans want it to have. 

This summit must include cable and satellite providers. Eighty-five percent of 

homes get their television signals from cable or satellite. Most people don’t recognize the difference as they flip channels between a broadcast station and a 

cable channel. Because cable and satellite are so pervasive, there is a compelling government interest in addressing indecency when children are watching. 

The courts have already applied this to cable. 

33 

It would be infinitely preferable, and far quicker, to have industry step up to 

the plate rather than have to go the route of legislation and regulation that 

can take a long time and is likely to be contested every step of the way. Perhaps cable could explore such options as offering a family tier so that families 

don’t need to receive channels like MTV in order to get the Disney Channel. 

My colleague Commissioner Martin has made positive suggestions about this. 

Cable could also make sure that family channels offer all family-friendly programming. And broadcasters could commit to family hours during prime time. 

I believe that with encouragement from Congress and from the Commission, 

and to the applause of most Americans, our radio, television, cable and satellite 

chieftains could come together to craft a new code of conduct that would serve 

the needs of their businesses as well as those of concerned families. And I’ll 

bet they could get it done this very year. Where is the industry leader who will 

do this? 

5. Affirm the Rights of Local Broadcasters to Control Their Programming: I was 

struck at our recent Charlotte localism hearing when I asked both a local 

broadcaster and a representative from one of the stations owned by a national 

network how often they had preempted a show based on community standards. 

The national station representative admitted he had never done so. The local 

owner stated that he frequently took the initiative—and this isn’t easy—and 

he refused to run shows like Married by America, Cupid, and others. 

In 2001, local broadcasters filed a petition asking the Commission to affirm a 

local broadcaster’s autonomy in making programming decisions for its station. 

I think we should be concerned about allegations that networks are hindering 

affiliates’ ability to refuse to broadcast network programming that is not suitable for their communities. Yet, this petition has sat unaddressed for over two 

years. The Commission should issue its decision promptly. 

Mr. Chairman, Senator Hollings, distinguished Members of this Committee, these 

are a few concrete steps that I advocate our taking to demonstrate that this Commission is finally dead serious about taking a firm stand against indecency as the 

level of discourse on the public’s airwaves deteriorates and stations continue to push 

the envelope of outrageous programming and promotions ever further. I don’t know 

what the precise mix of legislative initiative, regulatory enforcement and voluntary 

industry action should be here, but millions of Americans are asking us to get on 

with the job. Today we have the best of television and we have, undeniably, the 

worst of television. When it is good, it is very, very good; and when it is bad, it is 

horrid. It is also shameful. I don’t believe this is what the great pioneers of the 

broadcast industry had in mind when they brought radio and television to us. 

This is about the public interest, responsible broadcasting, and providing programming that appeals to something other than the lowest common denominator. 

There needs to be inviolable space out there that appeals to the better angels of our 

nature and that carves out a safe harbor for our kids. That may become harder and 

harder to do as technology evolves, but our public interest responsibility does not 

evolve. It is a constant. And if we are true to it here, we will find a way to translate 

all the concern and anger over this issue into policies and procedures that can yet 

vindicate what the public airwaves can do for us all. We need to do this now. 

This hearing is a public service and I appreciate the opportunity to testify. I am 

pleased that this Committee is on the job and has already demonstrated its commitment and leadership on several of the specific items I have discussed here this 

morning. I look forward to hearing your comments and further thoughts on all this. 

The CHAIRMAN. Thank you very much. 

Mr. Martin? 

STATEMENT OF HON. KEVIN J. MARTIN, COMMISSIONER, 

FEDERAL COMMUNICATIONS COMMISSION 

Commissioner MARTIN. Thank you, Mr. Chairman and distinguished Members, for the invitation to be with you this morning. 

Most consumers today can choose among hundreds of television 

channels, including some of the best programming ever produced. 

But television today also contains some of the coarsest and most 

violent programming ever aired, and, unfortunately, more and 

more of it. Indeed, the networks appear to be increasing the 

34 

amount of programming designed to push the envelope and the 

bounds of decency. 

For instance, a recent study found that the use of profanity during the family hour had increased 95 percent from 1998 to 2002. 

At the FCC, we used to receive indecency complaints by the hundreds. Now they come in by the hundreds of thousands. Clearly, 

consumers, and particularly parents, are increasingly frustrated 

and, at times, outraged. Parents who want to watch television together with their children too often feel they have too little to 

watch, and the broadcast networks become edgier to compete with 

cable. Prime time on broadcast television has become less family 

friendly. 

Cable and satellite television offer some great family oriented 

choices, but parents cannot subscribe to those choices alone; rather, 

they are forced to buy the channels they do not want their families 

to view in order to obtain the family friendly channels they desire. 

They must buy the Touch the Hooker episode of Spike TV’s Joe 

Schmo show in order to get the Discovery Channel. We need to provide parents with better tools to help them navigate the entertainment waters. 

A year ago, I wrote a law review article about the need to provide parents such tools, and I request that the article be submitted 

into the record today. I’m even more concerned about this issue 

today. 

I support Chairman Powell and his recent efforts with respect to 

the Super Bowl halftime show. I also agree with him that the enforcement bureau is wrong when it finds profanities acceptable 

merely because they are used as adjectives. I also agree with him 

that our Nation’s children, parents, and citizens deserve better. 

We, at the FCC, can be more responsive to these complaints and 

frustrations. We need to provide parents with more tools to enable 

them to watch television as families and to protect their children 

from violent and indecent programming. 

We need to do more. And I believe there are four steps we should 

take now to begin to address this problem. First, we should more 

aggressively enforce the law. Congress has charged the Commission with protecting families from obscene, indecent, and profane 

material. Our rules need to serve as a significant deterrent to 

media companies considering the airing of such programming. And 

to achieve that goal, we need serious fines coupled with aggressive 

enforcement. I strongly support the pending legislation to increase 

fines for airing inappropriate material. Indeed, in almost every indecency case that has come before us, I have found the fine inadequate and urged the Commission to do more. In fact, I have argued that there is action we can take now, within our existing authority, to get tougher on broadcasters who violate the law. 

Last March, I began urging the Commission to use our full statutory authority to fine broadcasters per utterance, rather than per 

show. Using this approach, I would have fined the Detroit Radio 

Show, for example, $247,000, instead of only $27,000 last year. 

In addition, the FCC should use its statutory authority to address the broadcast of profanity. The indecency statute we enforce 

prohibits obscene, indecent, and profane language. Profanity on television and radio appears to be widespread, yet I have not found 

35 

even a single instance in which the Commission concluded a broadcast was profane. 

Finally, we should respond to the thousands of complaints that 

are pending, and make quick responses a matter of course and 

within a specific deadline. 

Two, we should affirm the local broadcaster’s ability to reject inappropriate programming. Several years ago, local broadcasters 

complained that the networks were restricting their ability to reject 

inappropriate programming. This ability is critical to those local 

broadcasters that want to keep coarser programming off the air in 

their communities. In this respect, the affiliates provide a natural 

check on the control of network programming in the marketplace 

rather than through the direct government oversight of network 

content. We should clarify immediately that local broadcasters 

have, not only this opportunity, but this obligation of serving their 

local communities. 

Third, we should urge broadcasters to reinstate the family hour. 

Over a year ago, I called on broadcasters to reestablish the family 

hour, devoting the first hour of prime time to family friendly programs that parents and children could enjoy together. Such a family hour used to be standard. But when the broadcasters’ old code 

of conduct was abandoned, the family hour went with it. And 

broadcasters should bring back this family time. 

While I will continue to call for the industry to action, the industry can take action on its own. A year ago, Paxson Communication 

urged the Commission to issue a notice on a public interest code 

of conduct, which included the concept of a family hour. We should 

put this request out for comment and publicly endorse the concept 

of a family hour and the importance of it. 

Fourth, we should address cable and satellite programming. 

Broadcast cannot be the end of the story. Children today do not 

distinguish between channels 4 and 40. In a world in which more 

than 85 percent of homes receive their television programming 

from cable and satellite providers, we need a comprehensive solution. Over a year ago, I urged cable and satellite operators to take 

action. I continue to believe something needs to be done to address 

this issue. 

As I have suggested, I think cable and satellite operators could 

offer an exclusively family friendly programming tier as an alternative to the expanded basic tier on cable or the initial tier on 

DBS. Parents could get Nickelodeon and Discovery without having 

to buy MTV and other adult-oriented fare. A choice of a family 

friendly package would provide valuable tools to parents wanting 

to watch television with their families, and it would help them protect their children from violent and indecent programming. 

Alternatively, cable and DBS operators could offer programming 

in a more a la carte manner. For example, they could permit parents to request not to receive certain channels, and reduce the 

package price accordingly. 

Finally, I am sympathetic to many people asking why our indecency regulations apply only to broadcast. Indeed, today programming that broadcast networks reject because of concerns about content may end up competing on basic cable networks, and radio perVerDate Nov 24 2008 10:35 Jul 13, 2016 Jkt 075679 PO 00000 Frm 00039 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\20693.TXT JACKIE
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1See Nell Minow, ‘‘Standards for TV language rapidly going down the tube,’’ Chicago Tribune, 

Oct. 7, 2003 at C2 (discussing study by the Parents Television Council).. 2Kaiser Family Foundation, ‘‘Sex On Television 3: Content And Context, Biennial Report Of 

The Kaiser Family Foundation’’ at 14 (Feb. 2003). 

sonalities that we have fined for indecency violations have just 

moved to satellite radio. 

Increasingly, I hear a call for the same rules to apply to everyone 

for a level playing field. If cable and satellite operators continue to 

refuse to offer parents more tools, basic indecency and profanity restrictions may be a viable alternative that should be considered. 

In conclusion, I share your concern about the increase in coarse 

programming on television and radio today, and I believe something needs to be done. I hope that the proposals for action that 

I have made today can help, and I welcome your guidance. 

Thank you, and I look forward to your questions. 

[The prepared statement of Commissioner Martin follows:] 

PREPARED STATEMENT OF HON. KEVIN J. MARTIN, COMMISSIONER, 

FEDERAL COMMUNICATIONS COMMISSION

Thank you for this invitation to be here with you this morning. I look forward 

to listening to your comments and to answering any questions you may have. 

Most consumers today can choose among hundreds of television channels, including some of the best programming ever produced. But television today also contains 

some of the coarsest and most violent programming ever aired—and, unfortunately, 

more and more of it. Indeed, the networks appear to be increasing the amount of 

programs designed to ‘‘push the envelope’’—and the bounds of decency. For instance, 

a recent study found that the use of profanity during the ‘‘Family Hour’’ increased 

95 percent from 1998 to 2002.1 Another study found that two-thirds of television 

shows in the 2001–2002 season had sexual content.2 This trend becomes even more 

disturbing in light of the studies that have documented the harm that such programming, particularly violent television, can have on young people. At the FCC, 

we used to receive indecency complaints by the hundreds; now they come in by the 

hundreds of thousands. Clearly, consumers—and particularly parents—are increasingly frustrated and, at times, outraged. 

Parents who want to watch television together with their children too often feel 

that, despite the large number of viewing choices, they have too little to watch. As 

the broadcast networks become ‘‘edgier’’ to compete with cable, prime time on broadcast television has become less family friendly. Cable and satellite television offer 

some great family-oriented choices, but parents cannot subscribe to those channels 

alone. Rather, they are forced to buy the channels they do not want their families 

to view in order to obtain the family-friendly channels they desire (e.g., they must 

buy the ‘‘Touch the Hooker’’ episode of Spike TV’s Joe Schmo show in order to get 

the Discovery Channel). 

We need to provide parents with better tools to help them navigate the entertainment waters. A year ago, I gave a speech and wrote an article about the need to 

provide parents such tools, and I have attached that article for your consideration. 

I am even more concerned about this issue today. 

I support Chairman Powell and his recent efforts with respect to the Super Bowl 

half time show. I also agree with Chairman Powell that the Enforcement Bureau 

is wrong when it finds profanities acceptable merely because they are used as adjectives. I also agree with him that our Nation’s children, parents and citizens deserve 

better. 

We at the FCC can be more responsive to these complaints and frustrations. We 

need to provide parents with more tools to enable them to watch television as a family and to protect their children from violent and indecent programming. We need 

to do more. I believe there are four steps we should take now to begin to address 

this problem. 

1. We Should Aggressively Enforce the Law. Congress has charged the Commission 

with protecting families from obscene, indecent, and profane material. Our rules 

need to serve as a significant deterrent to media companies considering the airing 

of such programming. To achieve that goal, we need serious fines coupled with aggressive enforcement. 

37 

I strongly support the pending legislation to increase fines for airing inappropriate material, and I believe such authority is critical to making the decision to 

air indecent or profane language a bad business decision. Indeed, in almost every 

indecency case that has come before us, I have found the fine inadequate and urged 

the Commission to do more. I have argued that there is action we can take now— 

within our existing authority—to get tougher on broadcasters who violate the law. 

Last March, I began urging the Commission to use our full statutory authority to 

fine broadcasters ‘‘per utterance,’’ rather than per show. Using such an approach, 

the fines I proposed were several times higher than the fines the majority imposed. 

For instance, in a Notice of Apparent Liability from last April dealing with a Detroit 

radio show, the fine would have been $247,500 instead of only $27,500; in the most 

recent Notice of Apparent Liability against Clear Channel, the fine would have been 

well over a million dollars. 

In addition, the FCC should use its statutory authority to address the broadcast 

of profanity. The indecency statute we enforce prohibits ‘‘obscene, indecent and profane language,’’ but the Commission appears to have read the last word out of the 

statute. I have not yet found even a single instance in which the Commission concluded a broadcast was profane. Yet, profanity on television and radio appears to 

be widespread. 

Finally, we should respond to the thousands of complaints that are pending—and 

make quick responses a matter of course. Last year, the Commission and the Enforcement Bureau combined issued only three notices of liability, and only one forfeiture order. Yet we received tens of thousands of complaints. It doesn’t matter how 

tough our fining authority is if we don’t actually enforce the rules. Consumers 

should not have to wait years to have their complaints heard. And broadcasters 

should expect that if they violate our rules, we will respond swiftly. 

2. We Should Affirm Local Broadcasters’ Ability to Reject Inappropriate Programming. Several years ago, local broadcasters, through the Network Affiliated Stations 

Alliance, complained that the networks were restricting their ability to reject inappropriate programming. They asked us to clarify our rules and reaffirm this right 

and responsibility. Our rules should protect a broadcaster’s ability to refuse to air 

programming that is unsuitable for its local community. This ability is critical to 

those local broadcasters that want to keep coarser network programming off the air 

in their communities. Last week, for example, there were news reports of ABC, 

CBS, and NBC affiliates pressuring their networks to use tape delays in upcoming 

Awards shows and not to air certain programming so that indecent material and 

profanity could be avoided. In this respect, the affiliates provide a natural check on 

the control of network programming in the marketplace, rather than through direct 

government oversight of network content. We should grant the broadcasters’ request, clarifying immediately that local broadcasters have this opportunity—and obligation—when serving their local communities. 

3. We Should Urge Broadcasters to Reinstate the Family Hour. Over a year ago, 

I called on broadcasters to reestablish the Family Hour, devoting the first hour of 

prime time to family-friendly programs that parents and children could enjoy together. Such a Family Hour used to be standard and was even incorporated into 

the National Association of Broadcasters’ Code of Conduct. When the Code was 

abandoned due to unrelated antitrust concerns, the Family Hour went with it. 

Broadcasters should bring back the Family Hour. They should give families at least 

one hour, five days a week, when they can turn to broadcast television with comfort, 

confidence, and enthusiasm. 

While I will continue to call for this industry action, the Commission can take action on its own. A year ago, Paxson Communications urged the Commission to issue 

a notice on a voluntary ‘‘Public Interest Code of Conduct,’’ which included the concept of a Family Hour. Broadcasters could voluntarily opt into this Code and the 

accompanying public commitments. The Code also could include a commitment to 

provide a certain amount of family programming and to limit coarse programming 

to certain hours. We should put this request out for comment and publicly endorse 

the importance of the Family Hour. Such a voluntary code could serve as an easy 

indicator for parents searching for a way to determine which channels are appropriate for family viewing. 

4. We Should Address Cable and Satellite Programming. I believe the previous 

steps could help address the amount of indecent and otherwise coarse programming 

on broadcast television, but broadcast cannot be the end of the story. Today, children do not distinguish between channels 4 and 40, and cable and broadcast programming compete aggressively for the same viewers and advertisements. In a 

world in which more than 85 percent of homes receive their television programming 

from cable and satellite providers, we need a comprehensive solution. 

38 

* Commissioner, Federal Communications Commission. Commissioner Martin was nominated 

to be a member of the FCC by President George W. Bush on April 30, 2001, and was sworn 

in on July 3, 2001. Mr. Martin serves a five-year term expiring in June 2006. The Author 

thanks Catherine Bohigian, his legal advisor on media issues, for her assistance on the preparation of this Essay. 

Over a year ago, I urged cable and satellite operators to take action. Thus far, 

there has been no response. I continue to believe something needs to be done to address this issue. 

As I suggested, cable and satellite operators could offer an exclusively familyfriendly programming package as an alternative to the ‘‘expanded basic’’ tier on 

cable or the initial tier on DBS. This alternative would enable parents to enjoy the 

increased options and high-quality programming available through cable and satellite without having to purchase programming unsuitable for children. Parents 

could get Nickelodeon and Discovery without having to buy MTV and other adultoriented fare. A choice of a family friendly package would provide valuable tools to 

parents wanting to watch television with their families, and would help them protect their children from violent and indecent programming. Other subscribers, 

meanwhile, could continue to have the same options they have today. 

Alternatively, cable and DBS operators could offer programming in a more a la 

carte manner. For example, they could permit parents to request not to receive certain channels and reduce the package price accordingly. Under this second option 

as well, parents would be able to receive (and pay for) only that programming that 

they are comfortable bringing into their homes. 

Finally, I am sympathetic to the many people asking why our indecency regulations apply only to broadcast. Indeed, today programming that broadcast networks 

reject because of concerns about content may end up on competing basic cable networks, and radio personalities that we have fined for indecency violations just move 

to satellite radio. Increasingly, I hear a call for the same rules to apply to everyone—for a level playing field. If cable and satellite operators continue to refuse to 

offer parents more tools such as family-friendly programming packages, basic indecency and profanity restrictions may be a viable alternative that also should be considered. 

In conclusion, I share your concern about the increase in coarse programming on 

television and radio today. Something needs to be done. I hope that the proposals 

for action that I have made today can help. I also welcome your guidance. 

Thank you, and I look forward to answering any questions you may have. 

Federal Communications Law Journal—May 2003 

FAMILY-FRIENDLY PROGRAMMING: PROVIDING MORE TOOLS FOR PARENTS

Kevin J. Martin *

Since then-Chairman of the Federal Communications Commission Newton Minow 

dubbed television a ‘‘vast wasteland’’ in 1961, the medium has changed dramatically. Consumers today have so many programs from which to choose that the complaint is rarely a lack of high-quality television shows. Rather, the concern for many 

consumers is how to navigate these teeming waters. This course-plotting can be a 

particular challenge for parents who desire to watch television together with their 

children. I therefore encourage the television industry to provide these parents more 

navigational tools. 

Consumers today have exponentially more viewing options, and they can choose 

from a remarkable array of programs, both on broadcast and on subscription television. They can view these programs using digital technology that produces a crisp, 

clear color picture far surpassing the fuzzy black-and-white world of 1961. Importantly, the burgeoning competition among television networks has resulted in some 

of the best programming ever produced. It also has enabled such diversity that 

niche channels, which devote 100 percent of their time to science, art, or history, 

can be successful. 

Television today, however, also presents some of the coarsest programming ever 

aired. Parents who want to watch television together with their children too often 

feel that, despite the increased number of viewing choices, they have too little to 

watch. Prime time on broadcast television has become less family friendly. Cable 

and Direct Broadcast Satellite (‘‘DBS’’ or ‘‘satellite’’) do offer new family-oriented 

choices, but parents cannot subscribe to those channels alone. Rather, they must 

take the channels they do not want their families to view along with the Disney 

Channel and Discovery Channel. 

39 

1 C. Edwin Baker, Media Concentration: Giving Up on Democracy, 54 Fla. L. Rev. 839, 867 

(2002). 2 Cable History, The Cable Center, http://www.cablecenter.org/history/timeline/decade.cfm?start=1960 (last visited Feb. 27, 2003). 3 2002 Biennial Reg. Review Before the FCC—Review of the Comm’n’s Brdcst. Ownership 

Rules and Other Rules Adopted Pursuant to Section 202 of the Telecomms. Act of 1996, Notice 

of Proposed Rulemaking, 17 F.C.C.R. 18503, para. 53 (2002) [hereinafter 2002 Review]. 4See WB Website, at http://www2.warnerbros.com/web/all/link/partner.jsp?url=http:// 

www.thewb.com (last visited Feb. 27, 2003); Viacom Website, at http://www.viacom.com/ 

thefacts.tin (last visited Feb. 27, 2003). 5See Pax Communications Website, at http://www.pax.tv/about/ (visited Feb. 27, 2003). 6 In addition to cable and satellite, MVPD technologies include home satellite dishes, wireless 

cable systems, and satellite master antenna television systems. 7 2002 Review, supra note 3, para. 25. 8Florence Setzer & Jonathon Levy, Broadcast Television in a Multichannel Marketplace, OPP 

Working Paper No. 26, 6 F.C.C.R. 3996, 4008–09 (providing percentage of homes served by 

cable); HBO, Inc. v. FCC, 567 F.2d 9, 24 (D.C. Cir.), cert. denied, 434 U.S. 829 (1977) (providing 

number of households served by cable). 

I believe it is time for our culture to rethink our approach to family-friendly programming. Parents should have the tools to help their children take advantage of 

the good that television can offer. Certainly, broadcasters, cable, and satellite operators enjoy significant First Amendment rights to choose the content they deliver to 

our homes. But these companies can take it upon themselves to improve the tools 

they provide parents, so that parents are able to enjoy the diversity television today 

has to offer, yet still protect their children from content they believe inappropriate 

for family viewing. 

I therefore propose two challenges to the industry: I urge broadcasters to create 

a ‘‘Family Viewing Hour’’ during the first hour of prime time. I also urge cable and 

satellite operators to offer a family-friendly programming package. Together, these 

steps would empower parents and enhance the value that television can offer. 

Marketplace Developments 

When Chairman Minow observed a ‘‘vast wasteland,’’ consumers generally had 

three choices for television programming—ABC, NBC, and CBS—and thus these 

three national broadcast networks dominated the television marketplace.1 Even 

with the few independent stations available in some of the larger markets, television audiences were presented with a limited amount of viewing options. Cable 

television, formerly known as Community Antenna Television (or CATV), was still 

in its infancy; by 1963, about 1 million homes subscribed to cable,2 but the service 

was largely used to extend the reach of broadcast signals, not to offer different programming. 

Over the last four decades, the television landscape has changed dramatically. 

Broadcast television options have grown considerably. Just since 1980, the number 

of full-power television stations has increased almost 70 percent.3 With the introduction of the Fox Television network in 1986, the collection of dominant networks— 

once known as the ‘‘Big Three’’—became referred to as the ‘‘Big Four.’’ The path 

then was paved for the entrance of additional new networks. In January 1995, the 

fifth and sixth networks were born: Turner Broadcasting System launched the WB 

Network, and Paramount Television launched the United Paramount Network 

(‘‘UPN’’). These networks currently reach 88 percent and 97 percent of U.S. television homes, respectively.4 More recently, Paxson Communications launched PAX 

TV in 1998, reaching 85 percent of the country.5

The current transition to digital television now offers viewers not only more 

choices, but new opportunities. Broadcasters are beginning to take advantage of the 

many benefits digital will bring to consumers—a markedly sharper picture resolution and better sound; an astounding choice of video programming, including niche 

programs and movies on demand; CD-quality music channels of all genres; interactivity; sophisticated program guides; and new, innovative services. 

The most remarkable development since the 1960s, however, may be the explosion 

in the number of television networks, made possible by the development of multichannel video programming distributors (‘‘MVPDs’’), including cable and satellite.6

Today consumers can choose among more than 230 national cable networks and 

more than 50 regional networks—an almost unimaginable sum to a television viewer of the 1960s.7

In addition, the number of households accessing these multi-channel services has 

increased significantly since the 1960s. In 1976, there were still only 17 percent of 

U.S. households—fewer than 10 million homes—served by cable.8 By 2002, cable 

40 

9 Cable History, The Cable Center, at http://www.cablecenter.org/history/index.cfm (last visited Feb. 27, 2003). 10Satellite TV Subscriber Counts, Sky Report, at http://www.skyreport.com/dthlcounts.htm 

(last visited Feb. 27, 2003). 11 Annual Assessment of the Status of Competition in the Mkt. for the Delivery of Video Programming, Ninth Annual Report, 28 Comm. Reg. (P & F) 159, para. 5 (2002) [hereinafter Ninth 

Video Competition Report]. 12 Id. para. 24 (citing Nielsen Media Research, Total Day 24 Hours 6 am–6 am: Total U.S. 

Ratings by Viewing Source July 2000–June 2002, Oct. 2002). ‘‘A share is the percent of all 

households using television during the time period that are viewing the specified station(s) or 

network(s). The sum of reported audience shares exceeds 100 percent due to simultaneous multiple set viewing.’’ Id. para. 24 n.39. 13 Charlie McCollum, Network Programs Play it Safe: Familiar Formulas—Family Comedies, 

Cop Dramas—Dominate; Some Shows Are Outright Remakes, San Jose MERCURY NEWS, Sept. 

15, 2002. The varying numbers may be due to the rise and fall of broadcast audience during 

different parts of the television season. 14 Between July 2001 and June 2002, broadcast television averaged a 59.4 audience share during prime time; cable averaged a 56.5 share. Ninth Video Competition Report, supra note 11, 

para. 24 (citing Nielsen Media Research, Primetime Monday–Saturday 8–11 PM Sunday 7–11 

PM: Total U.S. Ratings by Viewing Source July 2000–June 2002, Oct. 2002). 15KAISER FAMILY FOUND., SEX ON TV(2): A BIENNIAL REPORT TO THE KAISER FAMILY FOUNDATION 16–18 (Feb. 2001), available at http://www.kff.org. 16KAISER FAMILY FOUND., SEX ON TELEVISION 3: CONTENT AND CONTEXT, BIENNIAL REPORT

OF THE KAISER FAMILY FOUNDATION 14 (Feb. 2003). 17Press Release, Parents Television Council, What a Difference a Decade Makes: A Comparison of Prime Time Sex, Language, and Violence in 1989 and ’99 (Mar. 30, 2000), available at 

http://www.parentstv.org/PTC/publications/release/2000/pr033000.asp. 

reached 96 percent of television viewing homes, with 73 million subscribers.9 DBS 

is available nationwide and now has nearly 19.8 million subscribers.10 Today, 85.3 

percent of households subscribe to a MVPD.11

Long gone are the days when broadcasters commanded 100 percent of the viewing 

audience. From July 2001 to June 2002, broadcast television averaged only a 53.0 

audience share, while cable networks’ share had increased to 58.3.12 Other sources 

indicate the shift may be even more dramatic, with broadcast drawing only 37 percent, and cable programming drawing 53 percent of TV viewers.13 Nevertheless, the 

role of television broadcasters remains a significant one. Broadcast television has 

lost its monopoly on the viewing audience. Meanwhile, the broadcast networks, with 

only a handful of channels, continue to rival the cable networks for viewers, particularly during prime time, the period during which the American television audience 

is at its highest.14

In summary, the advances in television and the development of competing providers of video programming have resulted in unprecedented choice for consumers, 

particularly the vast majority that subscribe to a MVPD. Moreover, some of the best 

television ever produced is aired today. Yet, as discussed below, the picture is not 

entirely rosy. For families, the situation can be somewhat of a Catch-22. If you subscribe to a MVPD, you can get a significant selection of high-quality, family-friendly 

programming, but you also are forced to buy some of the most family-unfriendly programming produced for television. If you take the route of allowing only broadcast 

television into your home, you avoid some of the programming that may concern you 

the most, but your primetime viewing options as a family may be few and shrinking, 

and you will have missed out on the great programming that cable and satellite 

have to offer. As I explain below, broadcasters and MVPD operators can help parents out of this situation, and I urge them to do so. 

Broadcast Challenge: Family Viewing Hour 

To the dismay of many parents, the increased competition for viewership has led 

broadcasters to increase markedly the amount of coarse programming and decrease 

the family-friendly programming they provide their viewers. This shift is particularly notable during primetime viewing hours, when families are most likely to 

gather around the television together. 

Studies have documented this unfortunate trend. A report on the 1999–2000 television season found that two out of every three shows included sexual content, an 

increase from about half of all shows during the 1997–1998 season.15 The subsequent report for the 2001–2002 season revealed that the amount of sexual content 

on television remained high, with two-thirds of all shows continuing to include some 

sexual content.16 Another organization reports that from the fall 1989 season to the 

fall 1999 season, the incidence of sexual material, coarse language, and violence 

during prime time increased three-fold.17

As a result, parents wanting to watch broadcast television with their children at 

the end of the day—when most viewers do still turn to broadcast television—may 

41 

18The Family Friendly Programming Forum, a group of more than 40 major national advertisers, defines family-friendly programs as those which are ‘‘relevant and interesting to a broad 

audience; contain no elements that the average viewer would find offensive or that the average 

parent is embarrassed to see with children in the room, and ideally embody an uplifting message.’’ Family Friendly Programming Forum Website, Questions/Answers, at http:// 

www.ana.net/family/default.htm (last visited Feb. 27, 2003). 19 Report on the Brdcst. of Violent, Indecent, and Obscene Material, Report, 51 F.C.C.2d 418, 

419, 32 Rad. Reg.2d (P & F) 1367 (1975) [hereinafter Report]; Writers Guild of Am. v. ABC, 

609 F.2d 355, 359 (9th Cir. 1979). 20See generally Surgeon General’s Report by the Scientific Advisory Committee on Television 

and Social Behavior: Hearing Before the Senate Comm. on Commerce, Subcomm. on Communications, 92d Cong., 2d Sess. (1972). 21 H.R. REP. NO. 93–1139, 93d Cong., 2d Sess. 15 (1974); S. REP. NO. 93–1056, at 19 (1974) 

(these two reports were issued during congressional debates on the appropriations legislation 

for Fiscal Year 1975, Pub. L. No. 93–414). 22Writers Guild of Am., 609 F.2d at 359. 23 Id. 24The Writers Guild of America brought an action against the major networks and the FCC 

challenging the validity of the family viewing policy. Writers Guild of Am. v. FCC, 423 F. Supp. 

1064 (C.D. Cal. 1976). Although the District Court found that the FCC (through the statements 

of the Chairman) had violated the First Amendment and the Administrative Procedure Act 

(‘‘APA’’), the Ninth Circuit Court vacated this judgment on jurisdictional grounds and remanded 

the case back to the FCC. Writers Guild of Am., 609 F.2d at 356. Although the appellate court 

did not rule on the First Amendment issue, language from the holding suggests that even an 

FCC-mandated family viewing hour might be constitutionally permissible: 

It simply is not true that the First Amendment bars all limitations of the power of the individual licensee to determine what he will transmit to the listening and viewing public. At issue 

in this case is whether a family viewing hour imposed by the FCC would contravene the First 

Amendment. This is a considerably more narrow and precise issue than is the district court’s 

bedrock principle and with respect to which the FCC’s expertise and procedures could provide 

enormous assistance to the judiciary. 

Id. at 364. On remand, the FCC concluded that the NAB freely and voluntarily had chosen 

to adopt the family viewing policy as part of its code, and therefore the informal FCC action 

did not violate the First Amendment or the APA. Primary Jurisdiction Referral of Claims 

Against Gov’t Defendant Arising from the Inclusion in the NAB TV Code of the ‘‘Family Viewing 

Policy,’’ Report, 95 F.C.C.2d 700 (1983). This ruling was not challenged. 25Writers Guild of Am., 609 F.2d at 358 n.2. The amendment continued: 

In the occasional case when an entertainment program in this time period is deemed to be 

inappropriate for such an audience, advisories should be used to alert viewers. Advisories should 

also be used when programs in later prime time periods contain material that might be disturbing to significant segments of the audience. 

These advisories should be presented in audio and video form at the beginning of the program 

and when deemed appropriate at a later point in the program. Advisories should also be used 

Continued 

feel like they have fewer options, despite all the growth over the last decades. I do 

not dispute that parents could respond by turning the television off, but there 

should be a better answer. Accordingly, I challenge broadcasters to devote the first 

hour of prime time to family-friendly programs—programs that parents and children 

can enjoy together.18

The notion of a family-oriented viewing hour is not a new one. In fact, lawmakers, 

regulators, and members of the television industry recognized such a need almost 

thirty years ago. In 1974, the Federal Communications Commission (‘‘FCC’’) received nearly 25,000 complaints about violent or sexually oriented programming.19

That same year, responding in part to a finding by the Surgeon General about the 

adverse effects of televised violence on certain members of society,20 Congress instructed the FCC to outline actions it had taken or planned to take to protect children from excessive violence and obscenity.21 The FCC staff recommended several 

options, including issuing notices of inquiry, notices of proposed rulemaking, and 

policy statements.22 Then-Chairman Wiley, concerned that such formal measures by 

the FCC could pose significant First Amendment concerns, opted instead to encourage industry representatives to take voluntary actions to regulate the amount of violent or sexually oriented content that aired during those hours when children normally watch television.23

In April 1975, the National Association of Broadcasters (‘‘NAB’’) responded to the 

growing concern about television content by announcing a family viewing policy, 

which it incorporated into the NAB Code of Conduct for Television.24 The family 

viewing amendment provided in relevant part that ‘‘entertainment programming inappropriate for viewing by a general family audience should not be broadcast during 

the first hour of network entertainment programming in prime time and in the immediately preceding hour.’’ 25

42 

responsibly in promotional material in advance of the program. When using an advisory, the 

broadcaster should attempt to notify publishers of television program listings. 

Special care should be taken with respect to the content and treatment of audience advisories 

so that they do not disserve their intended purpose by containing material that is promotional, 

sensational or exploitative. Promotional announcements for programs that include advisories 

should be scheduled on a basis consistent with the purpose of the advisory. 

Writers Guild of Am., 609 F.2d at 358 n.2. 26 United States v. NAB, 536 F. Supp. 149 (D.D.C. 1982). 27 Id. 28Press Release, Office of Representative Chris Smith, Smith Rallies Congressional Backing 

for Family Friendly TV Programming (Oct. 5, 2001), available at http://www.house.gov/ 

chrissmith/press2001/pr1005001tvfamilyhour.html. 29 Children’s Protection Act of 2001, S. 124, 107th Cong. § 3(a) (2001). 30Family Friendly Programming Forum Website, FFP Mission, at http://familyprogram 

awards.com (last visited Feb. 27, 2003). 31 Id. 32 Id. at Family TV Awards. 33 Associated Press, ABC Gets a Feliz Navidad, NEWSDAY, Dec. 11, 2002, at B31. 

In 1983, the Department of Justice brought suit against the NAB, challenging the 

NAB Code on antitrust grounds.26 Although the suit involved only the code’s restrictions on television commercials,27 the NAB Board of Directors ultimately cancelled 

the Code of Conduct in its entirety, eliminating all regulations—even those not addressed by the suit, such as those dealing with violent, indecent, and sexually explicit content. The requirements for a family viewing hour were thereby rescinded. 

Recently, there have been efforts to reinstitute family viewing policies. In 2001, 

twenty-eight members of Congress signed a letter to the presidents of the major television broadcast networks asking them to voluntarily restore the Family Hour.28

That same year, Senator Brownback introduced a bill whose express purpose was 

to ‘‘permit the entertainment industry . . . to develop a set of voluntary programming guidelines similar to those contained in the Television Code of the National 

Association of Broadcasters.’’ 29

Advertisers also are taking steps to encourage the development of family-friendly 

programming. A group of more than forty major national advertisers, working 

through the Association of National Advertisers, have formed the Family Friendly 

Programming Forum to address two concerns: ‘‘the dwindling availability of family 

friendly television programs during prime viewing hours’’; and ‘‘the TV imagery, role 

models, themes and language to which our young people are exposed.’’ 30 The Forum 

has begun a concerted effort to encourage the entertainment community to provide 

‘‘more movies, series, documentaries and informational programs, aired between 

8:00 and 10:00 p.m., that are relevant and interesting to a broad audience and that 

parents would enjoy viewing together with a child.’’ 31 This effort includes a script 

development fund—in which CBS, ABC, NBC, and WB participate—to finance new 

family-friendly television scripts, a scholarship program for students who work on 

family-friendly projects, and the Annual Family Television Awards to recognize outstanding family television. I applaud the work the Forum is doing, and I congratulate the winners of the most recent awards, as well as the networks that aired the 

shows: CBS (three awards), WB (two awards), ABC (two awards), and PBS (one 

award).32

Even more promising, ABC appears to be embracing the idea of the family viewing hour. This year it launched its ‘‘happy-hour’’ strategy, in which the network airs 

family-friendly programs from 8 p.m. to 9 p.m., in an attempt to capture a broad 

family audience. The reception thus far has been positive, as the network has rebounded from a 23 percent drop in viewership last season.33

In sum, I believe a voluntary commitment by broadcasters to devote the first hour 

of prime time to family-friendly programming will be good for families (and, one 

might think, good for business, as well). I urge broadcasters to join this endeavor 

and collectively create at least one hour, five days a week, when a family can turn 

to broadcast television with comfort, confidence, and enthusiasm. 

Cable and Satellite Challenge: Family-Friendly Programming Package 

Broadcast, however, cannot be the end of the story. In a world in which more than 

85 percent of homes receive their television programming through pay-TV, programming from these distributors clearly has become pervasive. I believe cable and satellite, too, must rethink their level of responsibility to the viewing public. 

Certainly, cable and satellite operators carry a significant amount of familyfriendly programming. In fact, these providers offer parents more options than ever 

before, such as Disney Channel, Nickelodeon, ABC Family, Discovery Channel, The 

History Channel, and Hallmark Channel. Thus, at all hours of the day, households 

43 

34 News Release, Kaiser Family Foundation, Few Parents Use V-chip to Block TV Sex and Violence, but More Than Half Use TV Ratings to Pick What Kids Can Watch (July 24, 2001), available at http://www.kff.org/content/2001/3158/V-Chip%20release.htm. 35The existing package or ‘‘tier’’ could remain the same; the operator could merely select certain family-friendly channels from the existing tier and also offer them as a standalone ‘‘familyfriendly’’ alternative package. An analogy could be made to the way cable operators package the 

broadcast channels as part of ‘‘basic’’ package as well as the ‘‘expanded basic’’ package. 

that subscribe to these services should be able to find programming that is suitable 

for parents and children alike. 

Unfortunately, that does not mean that subscription to a pay-TV service is the 

complete solution. Because of the practice of ‘‘packaging’’ channels, when a parent 

purchases these services, that parent necessarily buys a number of channels that 

are not intended for children. 

The advent of technological tools that could block objectionable content was hailed 

as a potential panacea to this problem. The V-chip (‘‘violence’’ chip), introduced in 

1999, allows parents to use a rating system to block a significant set of programs 

with violent or sexual content. Since January 2000, the V-chip has been included 

in all new television sets larger than 13 inches. To date, however, the V-chip has 

not been as effective as its supporters had hoped. Recent studies have shown that 

few parents know about the V-chip, and far fewer have figured out how to make 

it work. Although more than 40 percent of American parents now own a television 

equipped with a V-chip, less than 7 percent of those parents use it to block programs with violent or sexual content.34 Thus, while the V-chip ultimately may prove 

to be an effective long-term solution, it currently is not serving as an effective tool 

for parents. 

Digital cable and satellite systems offer another tool for parents to protect their 

children from certain content. Most providers employ technology that enables a parent to limit access to whole channels through use of a password. Fortunately, this 

function appears to be easier to use than the V-chip. The number of digital cable 

and satellite subscribers, however, is still relatively small. As a result, it is still too 

soon to know whether most parents will actually learn about this technology, whether they will use it, or whether it will be circumvented too easily. 

Accordingly, many parents today still may have concerns about purchasing cable 

or satellite services. While most still choose to subscribe, they nevertheless remain 

concerned about much of the immediately accessible content. I therefore believe 

cable and satellite operators would provide a valuable service to American families 

if they would offer an exclusively family-friendly programming package as an alternative to the ‘‘expanded basic’’ on cable, or the initial tier on DBS.35 Existing familyoriented premium channels could be offered as well, either as part of the package 

or as an additional purchase. As a result, subscribers who are interested only in programming that they can enjoy with their family would finally have a way to purchase only that programming. Other subscribers, meanwhile, could continue to have 

the same options they have today. 

The availability of a family-friendly package would enable parents to enjoy the increased options and high-quality programming available through cable or satellite 

without being required to purchase programming less suitable for children. I believe 

it would provide a better tool to parents to enable them to enjoy excellent programming options, yet it should not require significant change to existing cable or satellite practices or regulatory intervention. 

Alternatively, cable and DBS operators might choose to offer relevant programming networks in a more a la carte manner. They could permit parents to request 

not to receive certain programming that is sold as part of a package, and reduce 

the package price accordingly. Under this second option as well, parents would be 

able to receive (and pay for) only that programming that they are comfortable bringing into their home. 

Under either of these two approaches, cable and DBS operators would be empowering all parents—enabling them to bring multi-channel video into their home without worrying about the channels their children might fall upon while ‘‘channel surfing.’’ I believe such a tool would be a significant benefit to parents, and I therefore 

encourage cable or satellite providers to take up this challenge. 

Conclusion 

Over the last four decades, television has developed into a vastly expanded medium, with more choice and excellent content. Certainly, viewers are better off 

today. The viewing picture nevertheless leaves something to be desired by parents 

who seek family-friendly programming. Broadcasters and MVPDs can change this 

picture, and I encourage them to provide parents with more options and better tools 

to find such programming. We all will benefit. 

44 

The CHAIRMAN. Thank you very much. 

Mr. Adelstein? 

STATEMENT OF HON. JONATHAN S. ADELSTEIN, 

COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION 

Mr. ADELSTEIN. Thank you, Mr. Chairman. 

Mr. Chairman, Senator Hollings, Members of the Committee, I 

appreciate your outstanding leadership on this issue in holding this 

hearing and all the work you’ve done over the years on this. Like 

many of you, I watched the Super Bowl with my family; and, like 

millions of others, I was really appalled by what I saw during the 

halftime show, not just for the shock value of the stunt that happened at the end, but for the overall crude performance in front of 

so many children, one in five American children. And the advertising set a new low for what should air during family time. A special occasion for our families was truly disrespected. 

Senator Brownback, Senator Hollings, I appreciate the work 

you’ve done over the years on violence, and you talked about it eloquently this morning. One of the ads I thought that was most offensive personally, and hurt me the most, was a violent trailer that 

aired for a horror movie. It showed terrifying monsters, with huge 

fangs, attacking people. I literally had to jump out of my chair to 

get in front of my child so he didn’t see what was happening on 

television. Other parents told me—friends of mine—that they 

couldn’t get to their remote controls fast enough. I wonder how 

those who chose to broadcast such violence can sleep at night when 

so many children went to bed that night having nightmares. No 

parent should have to jump in front of the TV to block their children from those kinds of images. We need to help parents navigate 

the increasingly difficult environment they face in today’s media. 

They’re crying out for our help. Complaints are exploding that our 

airwaves are increasingly dominated by graphic and shocking entertainment. 

Some have observed that broadcasters are only responding to 

competition from cable programming. Take MTV, a cable network 

known for pushing the envelope. It’s owned by Viacom, which owns 

CBS, as Senator Lautenberg pointed out. It’s no coincidence that 

MTV produced the halftime show, but the network thoughtlessly 

applied the cable-programmer’s standards to the Super Bowl, the 

ultimate family event. 

As a musician myself, I understand there’s a role for things like 

MTV in our society, but many might prefer that MTV’s more explicit offerings not intrude into the mainstream of American family 

life. Parents who purchase cable television have the legal right to 

block any channel they don’t consider appropriate for their children, and that choice just isn’t available on over-the-air television, 

and parents were certainly taken by surprise. 

As a parent and an FCC Commissioner, I share the public’s disgust with the increasingly crude radio and television content that 

we’re seeing. I’ve only served on the Commission for about a year, 

but I’m proud that in that time we’ve really stepped up our enforcement efforts. We need to ramp it up even further. In my view, gratuitous use of swear words and nudity have no place in broadcasting. We need to attack profanity head on. We need to use that 

45 

authority that Congress gave us. We need to reverse the bureau’s 

decision to allow profane words just because they’re in the form of 

an adjective. 

I have supported going to the statutory maximum for fines, but 

even this is woefully inadequate, and I welcome efforts by you, Mr. 

Chairman and other Members of this Committee, in the legislation 

that was approved by this Committee to let us increase fines substantially across all of our areas of jurisdiction. 

In the meantime, I have pushed for new approaches to deter indecency. These include fining for each separate utterance and revocation hearings in serious repeated cases. I worked last April to 

have the FCC put broadcasters on notice that we were beginning 

this stronger enforcement regime. And now we need to act more 

quickly when we get complaints. 

But there are limits to what the FCC can do. We must balance 

strict enforcement of the indecency laws with the First Amendment. If we overstep, we risk losing the narrow constitutional authority we now have to enforce the rules. So it may take more than 

the FCC to turn this around. 

Broadcasters have a big role to play. They need to show more 

corporate responsibility. We grant them use of the public airwaves 

to serve the public interest. They must rise above commercial pressures and recognize the broader social problems they may be 

compounding. 

One question I have often asked myself is whether the coarsening of our media is responsible for the coarsening of our culture, 

or if it’s vice versa. I think it’s both. I think they feed on each 

other. And I think media consolidation only intensifies the pressures. Fast-growing conglomerates focus on the bottom line above 

all else. Last summer, the FCC weakened its media-ownership 

rules, and I think we need to reconsider that decision and restore 

those protections. 

Local broadcasters also need the ability to reject network programming that doesn’t meet their community’s standards. The 

back and forth local affiliates have with networks is critical in the 

fight against indecency. Time and again, we see them fighting the 

networks, saying, ‘‘You can’t put that on. You can’t be serious.’’ And 

we see that the networks respond and pull back. The FCC has got 

to preserve that balance. 

And, on the positive side, we’ve got to do more to protect families. We should complete a 3-year-old rule-making on children’s television obligations in the digital age. This will help meet educational needs and give parents tools they need to help their children make appropriate viewing choices. 

During the Super Bowl and on far too many other occasions, people feel assaulted by what’s broadcast at them. My job, and our job 

here on the Commission, is to protect our families from the broadcast of this kind of material. It’s also our job to promote healthy 

fare for children. After all, the airwaves are owned by the American people, and the public is eager to take some control back. 

I’d be happy to answer any questions that you have. 

[The prepared statement of Commissioner Adelstein follows:] 

46 

PREPARED STATEMENT OF HON. JONATHAN S. ADELSTEIN, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION

Mr. Chairman, Mr. Ranking Member, and members of the Committee, thank you 

for inviting me to testify. 

Like many of you, I sat down with my wife and children to watch the Super Bowl. 

I was expecting a showcase of America’s best talent, both on and off the field, and 

the apotheosis of our cultural creativity during the entertainment and advertising 

portions. Instead, like millions of others, I was appalled by the halftime show—not 

just for the shock-value stunt at the end, but for the overall raunchy performance 

displayed in front of so many children—one in five American children were watching, according to reports. And the advertising set a new low for what should air during family time. 

The Super Bowl is a rare occasion for families to get together to enjoy a national 

pastime everyone should be able to appreciate. Instead, a special family occasion 

was truly disrespected. 

I could highlight any number of tasteless commercials that depicted sexual and 

bodily functions in a vile manner. Any sense of internal controls appeared out the 

window, so long as the advertiser paid the multi-million dollar rate. 

One commercial that really stung my family, and many other parents with whom 

I spoke, was a violent trailer for an unrated horror movie. It showed horrible monsters with huge fangs attacking people. I literally jumped out of my chair to get between the TV and my three-year old. Other parents told me they couldn’t reach for 

the remote control fast enough. I wonder how those who chose to broadcast such 

violence can sleep at night when they gave so many American children nightmares. 

No parent should have to jump in front of the TV to block their children from 

such images, whether during a commercial or a halftime show. No parent should 

feel guilty for not being with their child every single moment in case they need to 

block the TV during what most would consider to be a family viewing event. 

The entire Super Bowl broadcast was punctuated by inappropriate images that 

were an embarrassment for our country. The halftime show, with its global appeal, 

was a wasted opportunity to showcase the best that U.S. culture has to offer. The 

U.S. has the world’s greatest musical culture to promote across the globe, and that 

includes the many artists who performed at the event. Our musicians and artists 

offer a vibrant musical melting pot that expands our horizons and enriches our culture. As a musician myself, I am proud of artists who everyday express their creativity without trying to one up each other in shock value. There is plenty of magnificent talent here for the whole family to enjoy. It is those performances that 

broadcasters should showcase. Instead, the halftime show needlessly descended into 

lewdness and crassness. 

This latest incident is only the tip of the iceberg. There is nearly universal concern about the state of our public airwaves. I personally received more than 10,000 

e-mails last week, and the FCC received more than 200,000. But that pales in comparison to the number of people who over the past year expressed their outrage to 

me about the homogenization and crassness of the media. The public is outraged 

by the increasingly crude content they see and hear in their media today. They are 

fed up with the sex, violence, and profanity flooding into our homes. Just this month 

at an FCC hearing in San Antonio, a member of the audience expressed concern 

with indecency on Spanish-language television novellas. 

Complaints are exploding that our airwaves are increasingly dominated by graphic and shocking entertainment. Some observe that broadcasters are only responding 

to competition from cable programming. Take MTV, a cable network known for 

pushing the envelope. It’s owned by Viacom, which also owns CBS. It’s no coincidence that MTV produced the halftime show. But the network thoughtlessly applied 

the cable programmer’s standards during the Super Bowl—the ultimate family 

event. 

As a musician, I recognize that channels like MTV have a place in our society. 

I also understand and respect that many would prefer that they not intrude into 

the mainstream of American family life. Parents who purchase cable television have 

the legal right to block any channel they don’t consider appropriate for their children. More parents should be made aware of this right. Free over-the-air broadcasting, however, offers no such alternative to parents. For broadcast material designed for mature audiences, it’s a matter of the right time and place. 

Enough is enough. As a parent and an FCC Commissioner, I share the public’s 

disgust with increasingly crude radio and television content. 

I’ve only served on the Commission for about a year, but I’m proud that we’ve 

stepped up our enforcement in that time. And we need to ramp it up even further. 

In my view, gratuitous use of swear words or nudity have no place in broadcasting. 

47 

1 Newton N. Minow, ‘‘Television and the Public Interest’’ Speech Before the National Association of Broadcasters (May 9, 1961). 

We need to act forcefully now. Not surprisingly, complaints before the FCC are 

rising rapidly, with more than 240,000 complaints covering 370 programs last year. 

In the cases on which I have voted, I have supported going to the statutory maximum for fines. But even this statutory maximum—$27,500 per incident—is woefully inadequate. I welcome the efforts by Congress to authorize us to increase fines 

substantially across all our areas of jurisdiction. 

Awaiting such authority, I’ve pushed for new approaches to deter indecency. We 

can increase the total amount of fines by fining for each separate utterance within 

the same program segment. And we need to hold hearings to consider revoking 

broadcasters’ licenses in serious, repeated cases. I worked last April to have the 

FCC put broadcasters on notice that we were taking these steps to establish a 

stronger enforcement regime. Our challenge now is to act more quickly when we get 

complaints, and to ensure that our complaint procedures are as consumer-friendly 

as possible. 

But there are limits to what the FCC can do. We must balance strict enforcement 

of the indecency laws with the First Amendment. If we overstep, we risk losing the 

narrow constitutional authority we now have to enforce the rules. Nevertheless, 

many cases I have seen in my tenure are so far past any boundary of decency that 

any broadcaster should have known the material would violate our rules. 

So it may very well take more than the FCC to turn this around. We are not the 

only ones with a public trust to keep the airwaves free from obscene, indecent and 

profane material. Broadcasters are given exclusive rights to use the public airwaves 

in the public interest. The broadcasters themselves bear much of the responsibility 

to keep our airwaves decent. As stewards of the airwaves, broadcasters are in the 

position to step up and use their public airwaves in a manner that celebrates our 

country’s tremendous cultural heritage. Or they can continue down the path of debasing that heritage. Their choices ultimately will guide our enforcement. 

Serving local communities is the cornerstone of the broadcaster’s social compact 

with the public. When people choose to become licensed broadcasters, they understand that a public service responsibility comes with that privilege. In his famous 

remarks lamenting the ‘‘vast wasteland’’ of television, Newton Minow rightly observed that, ‘‘an investment in broadcasting is buying a share in public responsibility.’’ 1 Every broadcaster should take that to heart. Public responsibility may 

mean passing up an opportunity to pander to the Nation’s whims and current ratings trends when it is more important to stand up and meet the needs of the local 

community. 

Broadcasters need to show more corporate responsibility. They must rise above 

commercial pressures, and recognize the broader social problems they may be 

compounding. 

Many factors set the cultural and moral tone of our society. I welcome the attention that our indecency enforcement is receiving. I don’t think of it as silly or overblown, as some have suggested. The question before America is whether the coarsening of our media is responsible for the coarsening of our culture, or vice versa. 

My answer is both. They feed on each other. 

Media consolidation only intensifies the pressures. Fast-growing conglomerates 

focus on the bottom line above all else. The FCC should reconsider its dramatic 

weakening of media ownership limits last summer. 

Local broadcasters also need the ability to reject network programming that 

doesn’t meet their communities’ standards. The FCC must preserve the critical 

back-and-forth local affiliates have with the networks in the fight against indecency. 

In terms of taking positive steps, the FCC can do more to help families. Because 

our particular focus today is on children, one vital step is completing a pending rulemaking on children’s television obligations of digital television. The FCC started 

this proceeding more than three years ago, yet it remains unfinished. We should 

quickly complete this proceeding to help meet children’s educational needs, and give 

parents tools to help their children make appropriate viewing choices. 

During the Super Bowl, and on far too many other occasions, people feel assaulted 

by what is broadcast at them. My job is to protect our families from the broadcast 

of obscene, indecent or profane material. That also means promoting healthy fare 

for our children. After all, the airwaves are owned by the American people, and the 

public is eager to take some control back. 

The CHAIRMAN. Thank you very much, Mr. Adelstein. 

48 

Chairman Powell, I mentioned in my comment about the fact 

that 85 percent of Americans now receive their television program 

from cable and satellite. And, by the way, Mr. Kimmelman suggests that perhaps people should be able to purchase their channels 

a la carte, the same way we are able to function when we go to 

the grocery store. We are not required to buy additional commodities when we want to buy a loaf of bread. I wonder if you could 

talk just a little bit about that aspect of this issue. 

Chairman POWELL. I would agree that’s one thing to explore, and 

it has two sides to it. One, do you have to buy it in the first place? 

And, two, if you get it as part of the package, are you empowered 

with some control to deny that from coming through? For example, 

most cable companies, I think Commissioner Adelstein mentioned, 

have a legal obligation to be able to block a channel or service from 

coming into your home if you don’t want it, even if it’s part of your 

subscription. So, you know, there are areas—— 

The CHAIRMAN. So you’d be paying for something that you don’t 

want anyway. 

Chairman POWELL. You could be, although I won’t make the arguments for them. Different programming have different costs associated with them. But absolutely, the combination of what packages you get and what rights you have to block programming, I 

think, are the right places to look. 

The CHAIRMAN. What about the overall issue of the fact that— 

what regulatory authority do you have over the 85 percent of 

Americans who are now getting it from cable and satellite? 

Chairman POWELL. The short answer is, little to none, unfortunately. The statute that we administer, Section 1464, specifically 

says utterances that are broadcast. In addition, we have Constitutional limits that are different for broadcasting, because the courts 

have ruled that cable, unlike broadcast where the public airwaves 

are used, enjoys First Amendment protection closer to that of a 

newspaper, so there are a few more, you know, Constitutional constraints when you look there, as well. 

And then, finally, there has always been a tension, I think, that 

plays into the Constitutional question about their being a subscription relationship in which consumers have purchased services. 

That’s the court’s view about them. 

The CHAIRMAN. Well, there may be some difference of opinion on 

that, and perhaps there may be a need for legislation. I don’t know 

what the answer, but it clearly—if 85 percent of the American people are receiving these broadcasts via methods that you no longer 

have any control over, I would think that that would raise a significant issue. 

While I have you, I just want to mention—and I’ll ask the other 

Commissioners if they have a comment—there’s an article in USA 

Today this morning. So much for predictions. Rupert Murdoch, in 

News Corporation, would give a cable/satellite/TV industry price 

war after taking over direct TV. The top U.S. satellite service hit 

12 million subscribers. The service plans to boost average rates by 

more than 3 percent March 1. Comcast, the Nation’s largest cable 

operator will boost average cable rates by 5.4 percent. Time-Warner cable by 4.9 percent. On and on and on. The cable rates, satVerDate Nov 24 2008 10:35 Jul 13, 2016 Jkt 075679 PO 00000 Frm 00052 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\20693.TXT JACKIE
49 

ellite rates, continue to go up in multiples of the rate of inflation 

in America. 

We’ve been concerned about it on this Committee, we continue to 

be concerned about it. There is nothing that I can see that is injecting the kind of competition which brings rates down. Instead, they 

are going up, as I say, in multiples of inflation. And now, of course, 

we see this morning’s paper, that Comcast, the largest U.S. cable 

owner, is now going to make a bid for Walt Disney. Where, in your 

view, does this consolidation, that we’ve already seen to an obscene 

degree in radio, stop? Where is the endpoint here? Is it OK for Disney to be bought by Comcast? And then why don’t they buy somebody else? And then why doesn’t Mr. Murdoch buy somebody else? 

And then we have, as one of our colleagues is fond of saying, ‘‘many 

voices and one ventriloquist.’’ Is this of concern to you and other 

members of the Commission? 

Chairman POWELL. I’ll speak for myself, but I think all would answer the same. Unquestionably, yes. And it stops where we draw 

the lines, both in terms of our rules, what statutory limits exist, 

and what the antitrust authorities and the public-interest transactions permit. 

This Commission has demonstrated it is not afraid, in reviewing 

a transaction, from blocking a merger that it does not believe is in 

the public interest. I don’t know if Comcast will get Disney or not. 

It’s a hostile bid. If it does, a merger of that magnitude will unquestionably go through the finest filter that’s possible at the Commission, I can assure you. 

The CHAIRMAN. I thank you, Chairman Powell. I just think we 

need to be proactive on this issue, rather than reactive. And I appreciate, more than I can tell you, your leadership of the Commission. I’d like to hear the other Commissioners’ views on the two 

questions that I raised, quickly, because I’m about out of time. 

Ms. Abernathy? 

Commissioner ABERNATHY. Clearly, it raises serious concerns 

when you’ve got excessive concentration, and there’s no doubt in 

my mind—— 

The CHAIRMAN. First the issue of the broadcast—— 

Commissioner ABERNATHY. Oh, the broadcast and cable. It is a 

difference that exists more in our minds than in reality. At the 

time that we were given authority over broadcast indecency, I 

think cable wasn’t really there yet. It’s how the law is today. I 

think we’d need some legislative guidance if we wanted to venture 

into the area of regulating violence and indecency for cable. But I 

think that, given the fact that most children don’t even know the 

difference between broadcast and cable, it makes sense to try and 

reconcile the two. 

The CHAIRMAN. And the second question, you’ve answered? 

Commissioner ABERNATHY. Yes, I think it’s a serious problem. 

The CHAIRMAN. Dr. Copps? 

Dr. COPPS. On the first question, I don’t know that I buy into the 

theory that your favorite regulatory commission is a toothless tiger 

when it comes to cable. Congress has struggled with this for a long 

period of time—regulating, deregulating, re-regulating, deregulating cable. But as some observers have pointed out, it is so pervasive in our homes, so pervasive with our children, I think you can 

50 

make the argument that there’s a compelling government interest 

to do something about it. And, indeed, we have a Supreme Court 

case—the Playboy case—that says there is a compelling government interest in protecting children against indecency in cable. The 

fight has been, How do you find the least intrusive means to do 

that? We already have some cable regulation. Cable has to go 

through franchising, there are rights of way, there are public-access channels, and all the rest. Cable does use the spectrum. You 

know, this idea that they don’t use the spectrum—DBS certainly 

does and cable is using satellite and microwave spectrum, too. 

Section 612(h) of the Act empowers the franchising authorities at 

the local level, and the cable distributors, to do something about 

lewdness, lasciviousness, profanity, indecency, and even empowers 

a local cable distributor, if he wants to put out a prospective policy 

prohibiting this kind of stuff. So maybe there are some grassroots 

possibility, too. If it doesn’t come from—— 

The CHAIRMAN. We’ve seen that tried before—— 

Dr. COPPS.—just from here, it can come from there. 

The CHAIRMAN.—Doctor. We’ve seen that—— 

Dr. COPPS. OK. 

The CHAIRMAN.—track before. 

Dr. COPPS. Right. Well, maybe we ought to—— 

The CHAIRMAN. Pressures—— 

Dr. COPPS.—try it again. 

The CHAIRMAN.—brought to bear on the local operator, we know, 

Doctor. 

Dr. COPPS. And the second answer, it’ll stop when we get serious 

about stopping concentration, this is the kind of thing I’ve warned 

about in voting against a lot of these deals, and I think it’s just 

coming to—— 

The CHAIRMAN. Mr. Martin? 

Dr. COPPS.—fruition. 

The CHAIRMAN. Thank you. 

Commissioner MARTIN. First, Senator, I would point out that I 

think we do have some indecency authority over satellite. Technically, I think the provisions regarding indecency actually apply 

to utterances per radio, and our Title 3 for radio authority applies 

to DBS. We don’t currently treat it that way. We treat them more 

in the category of cable. But if we wanted to, we could extend it 

there. 

As I mentioned in my introductory comments, I think we absolutely have to find a way to address the cable side, as well, and 

I think that while there are legitimate First Amendment concerns 

that some people have raised, there’s no First Amendment guarantee to be paid for the programming that they’re putting on, and 

I think that an a la carte option is something that needs to more 

thoroughly be discussed. I think that we have to find a way to have 

consumers to have more choice in their cable—in what’s going on 

with the cable, both for the concerns about prices and the concerns 

about indecency. And so I think that goes to some of the second 

question you have, as well, of some of the ways that we could try 

to address the increasing prices that we’ve seen on cable, as well. 

The CHAIRMAN. Thank you. 

Mr. Adelstein? Thank you. 

51 

Mr. ADELSTEIN. Mr. Chairman, the courts have distinguished between cable and broadcast. Whether we like it or not, that’s the environment that we operate in. One of the reasons they made that 

distinction was because, in their view, in the case that Commissioner Copps cited, the person who purchases cable has the option 

under the law to block a cable channel. Now, most consumers don’t 

know that. I imagine most people that may be watching this hearing are surprised to learn that they could block any channel that 

they find inappropriate, be it MTV or anything else. I think the 

cable industry has to do more to ensure that every consumer has 

that right now. 

The CHAIRMAN. How do you do that? 

Mr. ADELSTEIN. Well, you do that through either—the digital box 

can do it, or through analog. They have technology available for 

both to block it. If a consumer asks for that, the cable company is 

obligated, under the law and under our rules, to meet that request. 

And it can be done—— 

The CHAIRMAN. How do you physically do it? 

Mr. ADELSTEIN. Well, it’s different for analog than it is for digital. Under—— 

The CHAIRMAN. Well, that’s helpful. 

[Laughter.] 

Mr. ADELSTEIN. Well, under digital, it’s much simpler to do. They 

can program into the box. Under analog, I believe they actually 

have to purchase some equipment, and it’s very, sort of, burdensome. So—— 

The CHAIRMAN. So you—— 

Mr. ADELSTEIN.—people don’t tend to do it. 

The CHAIRMAN.—can block it, but you have to purchase equipment to do it. That’s good. 

Mr. ADELSTEIN. Or pay a small fee, I believe. It’s unfortunate 

that that’s the way it works. I mean, it’s really not something that 

is being adequately implemented right now. I think the cable industry needs to step up to the plate, if that’s the reason that 

there’s a distinction between the two, and ensure that consumers 

actually have this right in practice and not just in theory. 

The CHAIRMAN. Thank you very much. 

Senator Hollings? 

Senator HOLLINGS. Thank you, Mr. Chairman. 

Let me make just a couple of comments from my experience of 

now 38 years on the Communications Subcommittee, and I’ll comment, most respectfully, to the distinguished Chairman. I know 

he’s a dedicated public servant, absolutely honest, but, in my opinion, dedicated not to regulate as the Chairman of a regulatory commission. 

That’s our problem. Here’s a Chairman, who says that the public 

interest is an empty vessel, who redefines communications as information in order to avoid that responsibility. Slaps on the wrist, in 

the Detroit case—that’s the filthiest thing, everybody agrees—on 

the different ways to perform sex in a filthy, filthy fashion, and 

leads the way for a little $27,000 fine and not to revocation of the 

license. Oh, one of the Commissioners say, ‘‘Let’s start a proceeding.’’ Oh, they wouldn’t think of that, of revoking the license. 

You’ve got the authority. But no revocation of license and a $27,000 

52 

fine, when they paid, for 30 seconds—on that halftime show, 30 

seconds is $225,000. What the heck is a $27,000 fine? If there ever 

was going to be a revocation, that would have been the case, in the 

Detroit case. 

Last night, the President of CBS Television said: ‘‘To that end, 

I challenge the broadcast community to reinstate a voluntary code 

of conduct.’’ Like somehow we’re going to start getting with this 

problem. 

Let me just say what the Commission—Chairman Powell said. 

This is why—I’m not trying to be unfair, I’m trying to be factual. 

This is our problem. And I quote Chairman Powell before April’s 

talk before the National Association of Broadcasters, ‘‘Every time 

something sort of salacious or edgy comes on television, we hear 

very strongly from very different viewpoints about it. But the same 

community taught me that we’re supposed to be a place of a marketplace of ideas—antagonistic voices, unpopular viewpoints, and 

unpopular images—and that our society is strong enough and robust enough to sustain that, and that rather than stamping it out 

under the boot of a government authority, we can adapt, and we 

can tolerate it.’’ 

Now, that’s our problem. Calling the responsibility ‘‘the boot of 

the government authority,’’ and saying you can tolerate it, and then 

start this hearing off with toleration, namely calling for a voluntary 

code, we’re in real trouble. Do you think you’ll ever revoke a license? Why didn’t you start a proceeding revoking the license in 

the Detroit case, Mr. Chairman? 

Chairman POWELL. Senator, I’m happy to answer all the things 

that you threw out. 

First of all, I’m very proud to be associated with those comments, 

because those are being associated with the First Amendment, and 

I don’t mind being associated with Thomas Jefferson or Justice 

Marshall or any of those who recognize the importance of content 

on our society. 

Senator HOLLINGS. Do you think you’re on the Supreme Court, 

or—— 

Chairman POWELL. If you’re—— 

Senator HOLLINGS.—are you on the—— 

Chairman POWELL.—going to allow me to finish, I’d be happy 

to—— 

Senator HOLLINGS.—Federal Communications Commission? 

Chairman POWELL. No, but I took the same oath that my colleagues did to uphold the Constitution of the United States, and 

that’s one of my responsibilities. And I’m perfectly proud of that. 

I do think we are urged to be cautious and careful when we regulate content. That’s all that statement says. 

But if we’re going to trade quotes, I don’t see why it’s just as fair 

for me to enter into the record quotes that I’ve said, for example, 

at the National Press Club just a few weeks ago, ‘‘I personally believe that this growing coarseness and the use of such profanity at 

a time where we are very likely to know that children are watching 

is abhorrent and irresponsible, and it’s irresponsible of our programmers to continue to try to push the envelope of a reasonable 

set of policies that tries to legitimately balance the interests of the 

First Amendment with the need to protect our kids.’’ I said, furVerDate Nov 24 2008 10:35 Jul 13, 2016 Jkt 075679 PO 00000 Frm 00056 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\20693.TXT JACKIE
53 

ther, ‘‘You can take the view that we have no standard, we have 

no moral limitation, we have no fear whatsoever of protecting our 

children from any range of communications that we know they can 

hear somewhere else, but sometimes what defines a culture or civilization is where we say no.’’ Second, I think it’s—— 

Senator HOLLINGS. My question was about revoking the license. 

Chairman POWELL. I’m happy to talk about that, too. 

Senator HOLLINGS. Yes, I mean, the media has reported that 

you’re beginning to see the light. There’s no question about that. 

But when are we going to ever revoke a license if we’re not going 

to do it in the Detroit case? 

Chairman POWELL. I think when the facts are egregious enough 

and serious enough to justify it. But we still are an agency of the 

law. 

In April 2003, the Commission announced clearly to notice the 

broadcasters that it would consider revocation of licenses if there 

was serious and persistent conduct. The Commission’s judgment 

has been that when it sees a case that meets those standards—and 

that’s been less than a year ago—it would act. I also believe, however—and the Supreme Court has made clear—that the Commission, when it announces a new policy, or its intent to pursue more 

aggressively a policy, that it cannot retroactively apply that to conduct that preceded the notice. 

So my view is—and you’re free to disagree with it—once the 

Commission made a clear notice that it would pursue revocation on 

a prospective basis, it will. But for conduct as in the Detroit case 

that preceded that announcement, I think not only would that be 

unconstitutional, but fundamentally unfair. 

Senator HOLLINGS. You made the finding subsequent to that announcement, and that was on November 24, when you had to forfeit your order or the slap in the wrist of a $27,000 fine to that 

CBS entity, Viacom, and no wonder CBS and Viacom goes along 

with just baring the breast. I mean, come on. That’s nothing compared to the people just seeing something they may consider indecent. 

I’ll ask Chairman Brownback to include in the record the list of 

TV and copycat behavior on violence, over a dozen cases. Nobody’s 

killing themselves when they see a bosom, but they’re constantly 

killing themselves over the years here when they see violence on 

TV. So I’ll ask that that be included in the record. 

Senator BROWNBACK [presiding]. That will be included in the 

record. 

[The information previously referred to follows:] 

TV and Copycat Behavior 

January 2004: A sixteen year old California girl was killed when she was thrown 

from a merry go-round propelled by a rope tied to a truck trying to imitate a stunt 

from the MTV program ‘‘Jackass.’’ 

April 2001: Two Kentucky teenagers were injured trying to recreate a scene from 

MTV’s ‘‘Jackass.’’ One teenage, a 17-year-old, drove a car towards his 16-year-old 

friend, who stood in the middle of the road. The boy in the road was supposed to 

jump out of the way at the last second, but didn’t make it in time. 

January 2001: A 13-year-old boy suffered second-and third-degree burns after two 

friends poured gasoline on his legs and feet and set him on fire. They were intimating a stunt from the MTV show ‘‘Jackass’’ in which Johnny Knoxville donned 

54 

a fire-resistant suit covered with steaks and stretched over a giant grill to become 

a human BBQ. 

May 1999: A 7-year-old boy in North Dallas, Texas accidentally killed his 3-yearold brother after imitating a pro wrestling move he saw on television. When interviewed by authorities, the boy demonstrated what had happened by running toward 

a doll about the same size as his brother and suddenly striking its neck, knocking 

it backwards. He also talked about his favorite wrestling stars, Stone Cold Steve 

Austin and The Undertaker. 

January 1999: Two Florida teenagers repeatedly raped their 8-year-old half-sister 

after allegedly watching an episode about incest on The Jerry Springer Show. A detective asked the boys where they learned to abuse their sister and the older boy 

responded, ‘‘I learned it on The Jerry Springer Show.’’ The show’s publicist issued 

a statement saying, ‘‘We’ve never had a show that is remotely close to this situation 

and, unfortunately, there are situations in this world for which we are blamed.’’ 

May 1998: In Ocean City, Maryland, 12-year-old Darron Lawrence Green committed suicide and left a note citing South Park as a reason why he killed himself. 

He mentioned a character named Kenny, a small boy who dies violently in every 

South Park episode. The boy did not show any signs of depression before the act. 

In the same year, 11-year-old Bryce Kilduff hung himself. Police suspected that 

it was an accident and that he was trying to imitate the character Kenny on South 

Park. His mother reported that the day before his death, her son was imitating the 

character and his friends said, ‘‘Well, if you’re Kenny, then you have to die.’’ He responded by saying, ‘‘That’s OK, I’ll be back next week.’’ Bryce also drew pictures 

of the characters and based their portrayal on his classmates’ stories, since his 

mother forbade him to watch the show. After his death, police found a picture 

drawn by Bryce depicting a character hanging himself. 

January 1998: 14-year-old Michael Swailes committed suicide by lying down in 

front of a speeding train. The boy was carrying a notebook with suicide instructions 

he downloaded from a Duke University student’s Website. Chris Economakis defended his Website, which outlines forty suicide methods, by claiming it was put up 

‘‘for entertainment purposes only.’’ After briefly removing the website, he put it back 

online 24 hours later with no changes. 

December 1997: Michael Carneal, a Kentucky high school student, entered his 

school lobby and fired seven shots from a semiautomatic weapon into a group of students, killing three and wounding five. He told investigators that he had seen it 

done in a scene from the movie Basketball Diaries, in which a character, played by 

Leonardo DiCaprio, walks into a classroom and kills several students with a shotgun. 

June 1997: Jeremy Strohmeyer, a California teen accused of sexually assaulting 

and murdering a 7-year-old girl in a Nevada casino, told Las Vegas detectives that 

he killed her by ‘‘putt[ing] one hand behind her head and one hand under her chin, 

and snapp[ing] her head like he [saw] on TV.’’ 

February 1997: A Bridgeport, Connecticut, 8-year-old was killed by a gunshot to 

the forehead by another child. Police said the children imitated a scene from the 

movie Set it Off after watching it on videotape. 

May 1994: A California teen and four other middle-class boys trapped and beat 

to death a sixth boy with whom the ringleader had engaged in intense competition 

over everything from grades to crime. The trial revealed that the teens’ plot was 

based on tactics seen in TV police dramas. 

October 1993: A 5-year-old ignited a 2-year-old sibling, who died from her injuries. 

The children’s mother blamed MTV’s Beavis and Butthead for inspiring the child: 

the cartoon’s two main characters like to light fires and often chant, ‘‘fire is good.’’ 

After this incident MTV moved Beavis and Butthead to a later hour and removed 

all references to fire. 

May 1993: An abduction and multiple slaying in Flin Flon, Manitoba, Canada, 

was attributed to a broadcast of the made-for-TV movie Murder in the Heartland, 

because it resembled the crimes in the movie and occurred several days after the 

airing. The movie is based on the true story of Charles Starkweather, a 19-yearold who abducted his 14-year-old girlfriend and murdered her family. 

Senator HOLLINGS. Thank you, Mr. Chairman. 

Senator BROWNBACK. Senator Boxer? 

Senator BOXER. Thank you so much. 

55 

First, I want to thank all of you for your eloquent statements 

today. I mean, I really do think that we’re all speaking from the 

heart and we’re all in agreement. The question is, where do we go 

from here? How do we take this outrage that we feel and do the 

right thing, consistent with balancing, you know, freedoms and 

good taste and morality and all the rest? This is not easy stuff. But 

I do think you could do more, and I think you think you could do 

more. And if you need the tools from us, we’ll give you the tools. 

A couple of things I want to pick up on, and I’ll just ask my questions, and then I’ll let you respond. I guess I would address these 

to the Chairman, because I think he has got the most, shall we say, 

influence over what happens. 

To pick up on Senator Lautenberg’s point, CBS, who brought us 

this offensive show—and I think we’ve all agreed it was offensive, 

the whole halftime show—turned down what I consider to be, and 

I think most people would say, was a very tasteful 30-second spot 

produced by a political organization called MoveOn.org. They said 

people would be offended. Now, it’s true, the deficit is offensive. 

That’s the message of this, that there’s this huge deficit, and our 

children have to pay it off. CBS said people would be offended. 

In terms of your, Chairman Powell’s, total defense of the First 

Amendment, how can CBS turn that down while they allow all this 

other offensive material on ads and this whole show? Can you take 

action against them for saying they won’t allow free speech on a 

political message? 

Chairman POWELL. Well, first, let me be clear that—and I expressed this to them in fairly firm terms—I think it was a gross 

mistake. I don’t see any reason—and, by the way, I’ve had my differences with MoveOn.org, but I agree completely with its rights to 

speak and to attempt to buy advertising. 

I don’t defend the conduct whatsoever. And by—— 

Senator BOXER. Are they allowed to do that? 

Chairman POWELL. Yes, they’re allowed—— 

Senator BOXER. They are. So—— 

Chairman POWELL.—I mean, they are—— 

Senator BOXER.—in other words—— 

Chairman POWELL.—allowed to make editorial decisions—— 

Senator BOXER. Fine. 

Chairman POWELL.—about what advertising they take. Whether 

it’s illegal or not, I’m not certain under what theory we would pursue it for that purpose, but it’s worth considering. I don’t think it 

was an appropriate choice, but it was the choice of the owner. 

Senator BOXER. Right. 

Chairman POWELL. They don’t take a lot of advertising. 

Senator BOXER. Well, let me make the point of—on this. When 

we allow more and more and more and more and more and more 

consolidation, we’re going to have fewer and fewer people involved 

in saying what can be on and what can off. This is frightening to 

me. So all of these things are connected to the consolidation issue, 

and that’s why so many of us are determined to overturn what 

happened in that omnibus bill where that slipped in and we’re allowing more and more media consolidation. 

Senator BROWNBACK. If we could have conversation concluded or 

taken out of the room, if that would be possible, for—— 

56 

Senator BOXER. Thank you. 

I do want to pursue that further with you, but let me go on. 

Have you seen, Chairman Powell, this report of the GAO, February 2003—it’s a very new report—‘‘File-sharing Programs, Peerto-Peer Networks Provide Ready Access to Child Pornography’’? 

Chairman POWELL. Senator, I haven’t read it, but your office has 

made us aware of it, yes. 

Senator BOXER. Good. I’m going to make sure that—if you don’t 

mind, that we can meet about this. 

Chairman POWELL. Sure. 

Senator BOXER. And I’m going just put in the record, if I might, 

Mr. Chairman, just two pages of this, what the GAO found. 

[The information referred to follows:] 

CHILD PORNOGRAPHY IS READILY ACCESSIBLE OVER PEER-TO-PEER NETWORKS

[Excerpt for the record] 

HIGHLIGHTS

File-Sharing Programs 

Child Pornography Is Readily Accessible over Peer-to-Peer Networks 

Why GAO Did This Study 

The availability of child pornography has dramatically increased in recent years 

as it has migrated from printed material to the World Wide Web, becoming accessible through websites, chat rooms, newsgroups, and now the increasingly popular 

peer-to-peer file-sharing programs. These programs enable direct communication between users, allowing users to access each other’s files and share digital music, images, and video. 

GAO was requested to determine the ease of access to child pornography on peerto-peer networks; the risk of inadvertent exposure of juvenile users of peer-to-peer 

networks to pornography, including child pornography; and the extent of Federal 

law enforcement resources available for combating child pornography on peer-topeer networks. GAO’s report on the results of this work (GAO–03–351) is being released today along with this testimony. 

Because child pornography cannot be accessed legally other than by law enforcement agencies, GAO worked with the Customs Cyber-Smuggling Center in performing searches: Customs downloaded and analyzed image files, and GAO performed analyses based on keywords and file names only. 

What GAO Found 

Child pornography is easily found and downloaded from peer-to-peer networks. In 

one search, using 12 keywords known to be associated with child pornography on 

the Internet, GAO identified 1,286 titles and file names, determining that 543 

(about 42 percent) were associated with child pornography images. Of the remaining, 34 percent were classified as adult pornography and 24 percent as nonpornographic. In another search using three keywords, a Customs analyst downloaded 

341 images, of which 149 (about 44 percent) contained child pornography (see the 

figure below). These results are consistent with increased reports of child pornography on peer-to-peer networks; since it began tracking these in 2001, the National 

Center for Missing and Exploited Children has seen a fourfold increase—from 156 

reports in 2001 to 757 in 2002. Although the numbers are as yet small by comparison to those for other sources (26,759 reports of child pornography on websites in 

2002), the increase is significant. 

Juvenile users of peer-to-peer networks are at significant risk of inadvertent exposure to pornography, including child pornography. Searches on innocuous keywords 

likely to be used by juveniles (such as names of cartoon characters or celebrities) 

produced a high proportion of pornographic images: in our searches, the retrieved 

images included adult pornography (34 percent), cartoon pornography (14 percent), 

child erotica (7 percent), and child pornography (1 percent). 

While Federal law enforcement agencies—including the FBI, Justice’s Child Exploitation and Obscenity Section, and Customs—are devoting resources to combating 

child exploitation and child pornography in general, these agencies do not track the 

57 

1 U.S. General Accounting Office, File-Sharing Programs: Peer-to-Peer Networks Provide Ready 

Access to Child Pornography, GAO–03–351 (Washington, D.C.: Feb. 20, 2003). 2Other popular peer-to-peer applications include Gnutella, BearShare, LimeWire, and Morpheus. 

resources dedicated to specific technologies used to access and download child pornography on the Internet. Therefore, GAO was unable to quantify the resources devoted to investigating cases on peer-to-peer networks. According to law enforcement 

officials, however, as tips concerning child pornography on peer-to-peer networks escalate, law enforcement resources are increasingly being focused on this area. 

PREPARED STATEMENT OF LINDA D. KOONTZ, DIRECTOR, INFORMATION MANAGEMENT

ISSUES, UNITED STATES GENERAL ACCOUNTING OFFICE

Mr. Chairman and Members of the Committee: 

Thank you for inviting us to discuss the results of our work on the availability 

of child pornography on peer-to-peer networks, which we provided to you in a report 

being released today.1

In recent years, child pornography has become increasingly available as it has migrated from magazines, photographs, and videos to the World Wide Web. As you 

know, a great strength of the Internet is that it includes a wide range of search 

and retrieval technologies that make finding information fast and easy. However, 

this capability also makes it easy to access, disseminate, and trade pornographic images and videos, including child pornography. As a result, child pornography has become accessible through websites, chat rooms, newsgroups, and the increasingly 

popular peer-to-peer technology, a form of networking that allows direct communication between computer users so that they can access and share each other’s files 

(including images, video, and software). 

As requested, in my remarks today, I summarize the results of our review, whose 

objectives were to determine 

• the ease of access to child pornography on peer-to-peer networks; 

• the risk of inadvertent exposure of juvenile users of peer-to-peer networks to 

pornography, including child pornography; and 

• the extent of Federal law enforcement resources available for combating child 

pornography on peer-to-peer networks. 

We also include an attachment that briefly discusses how peer-to-peer file sharing 

works. 

Results in Brief 

It is easy to access and download child pornography over peer-to-peer networks. 

We used KaZaA, a popular peer-to-peer file-sharing program,2 to search for image 

files, using 12 keywords known to be associated with child pornography on the 


211KOONT1.eps
58 

3The U.S. Customs CyberSmuggling Center assisted us in this work. Because child pornography cannot be accessed legally other than by law enforcement agencies, we relied on Customs 

to download and analyze image files. We performed analyses based on titles and file names only. 4 Erotic images of children that do not depict sexually explicit conduct. 

5 Images of cartoon characters depicting sexually explicit conduct. 

6See chapter 110 of Title 18, United States Code. 

7See 18 U.S.C. § 2256(8). 8See New York v. Ferber, 458 U.S. 747 (1982). 9Section 121, P.L. 104–208, 110 Stat. 3009–26. 

10 According to the Justice Department, rapidly advancing technology has raised the possibility of creating images of child pornography without the use of a real child (‘‘virtual’’ child pornography). Totally virtual creations would be both time-intensive and, for now, prohibitively 

costly to produce. However, the technology has led to a ready defense (the ‘‘virtual’’ porn defense) against prosecution under laws that are limited to sexually explicit depictions of actual 

minors. Because the technology exists today to alter images to disguise the identity of the real 

child or make the image seem computer-generated, producers and distributors of child pornography may try to alter depictions of actual children in slight ways to make them appear to be 

‘‘virtual’’ (as well as unidentifiable), thereby attempting to defeat prosecution. Making such alterations is much easier and cheaper than building an entirely computer-generated image. 

Internet.3 Of 1,286 items identified in our search, about 42 percent were associated 

with child pornography images. The remaining items included 34 percent classified 

as adult pornography and 24 percent as nonpornographic. In another KaZaA search, 

the Customs CyberSmuggling Center used three keywords to search for and 

download child pornography image files. This search identified 341 image files, of 

which about 44 percent were classified as child pornography and 29 percent as adult 

pornography. The remaining images were classified as child erotica4 (13 percent) or 

other (nonpornographic) images (14 percent). These results are consistent with observations of the National Center for Missing and Exploited Children, which has 

stated that peer-to-peer technology is increasingly popular for disseminating child 

pornography. Since 2001, when the center began to track reports of child pornography on peer-to-peer networks, such reports have increased more than fourfold— 

from 156 in 2001 to 757 in 2002. 

When searching and downloading images on peer-to-peer networks, juvenile users 

can be inadvertently exposed to pornography, including child pornography. In 

searches on innocuous keywords likely to be used by juveniles, we obtained images 

that included a high proportion of pornography: in our searches, the retrieved images included adult pornography (34 percent), cartoon pornography 5 (14 percent), 

and child pornography (1 percent); another 7 percent of the images were classified 

as child erotica. 

We could not quantify the extent of Federal law enforcement resources available 

for combating child pornography on peer-to-peer networks. Law enforcement agencies that work to combat child exploitation and child pornography do not track their 

resource use according to specific Internet technologies. However, law enforcement 

officials told us that as they receive more tips concerning child pornography on peerto-peer networks, they are focusing more resources in this area. 

Background 

Child pornography is prohibited by Federal statutes, which provide for civil and 

criminal penalties for its production, advertising, possession, receipt, distribution, 

and sale.6 Defined by statute as the visual depiction of a minor—a person under 

18 years of age—engaged in sexually explicit conduct,7 child pornography is unprotected by the First Amendment,8 as it is intrinsically related to the sexual abuse 

of children. 

In the Child Pornography Prevention Act of 1996,9 Congress sought to prohibit 

images that are or appear to be ‘‘of a minor engaging in sexually explicit conduct’’ 

or are ‘‘advertised, promoted, presented, described, or distributed in such a manner 

that conveys the impression that the material is or contains a visual depiction of 

a minor engaging in sexually explicit conduct.’’ In 2002, the Supreme Court struck 

down this legislative attempt to ban ‘‘virtual’’ child pornography 10 in Ashcroft v. The 

Free Speech Coalition, ruling that the expansion of the act to material that did not 

involve and thus harm actual children in its creation is an unconstitutional violation 

of free speech rights. According to government officials, this ruling may increase the 

difficulty of prosecuting those who produce and possess child pornography. Defendants may claim that pornographic images are of ‘‘virtual’’ children, thus requiring 

the government to establish that the children shown in these digital images are 

real. 

Senator BOXER. It found the following, that, ‘‘The proliferation of 

child pornography on the Net is prompting wide concern. According 

59 

to a recent survey, over 90 percent of Americans say they’re concerned about child pornography on the Internet, and 50 percent of 

Americans cite child pornography as the ‘‘single most heinous 

crime that takes place online.’’ 

Now, I just want to tell you how upset I think everyone in this 

room would be—not to say ‘‘upset’’—if you would see some of these 

images—Senator Lott, I know you, particularly, would be, as well, 

although I know you haven’t been able to hear me—the bottom line 

is, you would turn away. You would walk out of the room. You 

would be sick to your stomach at what is going on today. We get 

upset about a halftime show. This is illegal, peer-to-peer 

downloading that is going on today. Is this on your plate of issues 

to deal with in a prompt manner, Mr. Chairman? 

Chairman POWELL. It hasn’t been, but I would be happy to explore it with you. It’s not entirely clear in what way it falls in our 

jurisdiction. But I will tell you, I have two sons, and they each 

have laptops, and I know exactly what you’re talking about—— 

Senator BOXER. Right. 

Chairman POWELL.—and it’s a source of an enormous amount of 

frustration. Your computer gets hijacked by these sites. And once 

you’re hijacked, every time you boot up, it repeatedly is displayed, 

stuff is sent over the open connection, and I think there needs to 

be some solution to that, and I’m more than happy to be a partner 

in looking for ways to deal with that problem. It is a serious one. 

Senator BOXER. OK, let me repeat. This is illegal activity. Child 

pornography is illegal. And it is going on as we speak, thousands 

of times a day. And while we work on these other issues, which we 

must do, we must get a handle on this, because this thing is expanding exponentially. And so I would love to meet with you in the 

very near future, as in next week, if you’re available. We will work 

with your scheduler on that. 

Chairman POWELL. I would just add—and I think that conduct 

is illegal and criminal. 

Senator BOXER. Yes. 

Chairman POWELL. And I think it’s important to really work also 

with the criminal prosecution authorities—— 

Senator BOXER. We will. 

Chairman POWELL.—about that, as well. 

Senator BOXER. We will discuss that. 

The last thing, and I will absolutely stop. Commissioner Abernathy, thank you, you met with some of the content people. Could 

you just give us a sense of how they responded to your upset on 

this? 

Commissioner ABERNATHY. Yes. It was very interesting, Senator. 

The senior management put together the program—Rupert 

Murdoch on down, all attended—as well as all the folks who were 

involved in the creation of the content, and there were a number 

of panels. The response to what I had to tell them was skepticism, 

because I started out the day. As the day went further and they 

heard from parents and children, and they heard from their senior 

leadership, the younger folks who were producing the content— 

their initial reaction was, ‘‘You think there’s a problem. There is 

really not’’—by the end of the day, based on what they had heard 

from their senior management and from parents and from children 

60 

and from advocates, was an appreciation that they were wrong 

about what they were doing. Now, whether this will result in 

change, I don’t know, but at least it’s a new dialogue. It’s getting 

a lot of these young kids in a room, who grew up on MTV, who 

don’t have a clue what I need to watch with my 8-year-old. And 

that’s what they just didn’t get. 

So I do applaud FOX for taking this first step. I am hopeful it 

will go further. I don’t think that’s enough, but at least it’s something. 

Senator BOXER. Thank you. 

Senator BROWNBACK. Senator Breaux? 

Senator BREAUX. Thank you, Mr. Chairman. And thank all the 

Commissioners. 

Mr. Chairman, Chairman Powell, it’s really interesting that the 

FCC launched an investigation after the Super Bowl halftime show 

was presented. Had that halftime show been on ESPN—if they had 

carried the Super Bowl, as opposed to the network—you wouldn’t 

have done that. Because, as I take it, it—the law says—I think 

that’s what I was hearing—that you have the obligation to enforce 

decency standards on broadcast networks, but that that does not 

cover cable, direct television, and television that some 80 to 85 percent of the people in America watch. 

Is that because of a statute, or is that because of regulations, or 

why? 

Chairman POWELL. Let me explain that. Congress passed statutes many decades ago on indecency, the famous Section 1464, and 

it specifically talks about utterance using radio, or over radio. 

Senator BREAUX. What year was that? I mean, that was a long 

time ago. 

Chairman POWELL. 1927. 

Senator BREAUX. Yes. I mean, they didn’t have cable. 

Chairman POWELL. There was nothing else, probably. 

Senator BREAUX. Right. 

Chairman POWELL. And so for decades, essentially—and then 

there are other statutes, which—Congress empowers the Commission to enforce that statute. By the way, that statute’s a criminal 

statute. While we can’t enforce it criminally—we’re not a criminal 

authority—Congress empowered the Commission to enforce civil 

forfeiture for violations of the criminal provision. 

Senator BREAUX. If that’s the statute under which you look at 

the broadcast networks for content under a decency standard, if 

Congress decided to broaden that ability to cover the rest of the 

programming that people watch—and they don’t know whether it’s 

cable or direct television or broadcast—would that be something 

that Congress, in your opinion, could give you that jurisdiction to 

do? 

Chairman POWELL. I think that Congress certainly could give us 

that jurisdiction, subject to whatever Constitutional limits the 

court would impose. And I think the only caution I was introducing 

earlier was not an apology to not do it, only that the court has set 

much higher standards for the cable medium than the broadcast 

medium. We regularly hear people talk about, ‘‘These are the public airwaves and the public trust.’’ That’s unique to broadcasting. 

That is not an accurate characterization for cable. 

61 

Senator BREAUX. It seems to me that we have reached the distinction without a real difference, in the sense that the people who 

are flipping the channels—I mean, you can go up and down the 

whole spectrum of the channels, and I don’t know why one has to 

have one standard and the other has the other standard. I mean, 

it doesn’t make any sense. 

So you’re saying that Congress could expand that authority to 

give you the authority to treat non-broadcast stations the same as 

you treat broadcast stations. 

Chairman POWELL. Most certainly. Again, only subject to whatever limits there are. 

Senator BREAUX. It seems to me that—I mean, would you—we 

spent some time up here—we had televisions in here, we had demonstrations on the so-called V-chip, because I really thought the 

primary responsibility of making sure your children read what they 

should read and don’t read what they should not read, and watch 

what they should, and vice versa, is the parent’s responsibility. We 

created this V-chip mechanism. And yet it seems to me that that 

has been a pretty dismal failure, either because parents do not 

want to take advantage of it, they don’t understand it, they’re not 

comfortable it, or for whatever purpose. 

I mean, if only 7 percent are using it, 93 percent of families who 

have small children who could be utilizing it don’t take advantage 

of it. 

Chairman POWELL. Yes. 

Senator BREAUX. What’s the—I mean, it’s a failure, isn’t it? 

Chairman POWELL. It’s not an overwhelming success, you know. 

[Laughter.] 

Chairman POWELL. That’s for sure. 

Several years ago, when I was a minority Commissioner, I remember we made an enormous public affairs effort to try to educate the public, to really bring them in. Kermit the Frog was the 

spokesperson for the V-chip. 

Senator BREAUX. He did a commercial—— 

Chairman POWELL. These things were up all over television. And 

they haven’t worked. And it’s—I don’t know, it’s difficult to say 

why. I don’t like to believe somehow parents don’t care. But I do 

think there’s something kind of mysterious about technology to the 

adult generation that’s very knowable to the younger generation. 

Kids have a better hold on how to use the V-chip and how to defeat 

it than probably parents do. And, you know, certainly my kids 

seem to be able to run circles around us on the boxes that sit over 

the television. 

Senator BREAUX. I would hope that every time we—you get a letter complaining about something that’s on a broadcast channel 

right now, that you also, in responding to the people, let them 

know that the V-chip is available. And that’s a way of them taking 

control of their children’s lives, instead of Congress being the only 

arbitrator of what is permissible for their children to see—that 

they have a responsibility to police their own family, as well. 

Chairman POWELL. Well, that’s one thing that we can do fairly 

well. Commissioner Abernathy mentioned we have an entire section of FCC Web pages dedicated to parents, and advice like this, 

and we can always do more with this. It is a difficult issue. 

62 

The other thing you could look at, if you’re looking for ideas, is 

that programs are rated so that they can be used by the V-chip system. Now, a lot of programming still isn’t appropriately rated, and 

some—on cable channels that may be rated at the outset, but you 

walk in and Comedy Central is on at 12 in the afternoon. You 

won’t have any knowledge at that moment, whether what you’re 

about to see is violent or indecent. 

Senator BREAUX. One final question, and that is on the broadcast 

networks now—I mean, Janet Jackson’s breast on TV for 2 seconds 

is an issue, but I think that also—and even a much greater issue, 

as far as I’m concerned, is all the violence on prime time television, 

particularly some of the reality shows that we see. Like I said, with 

people eating cockroaches, sitting in a bathtub of worms, and also 

doing horribly dangerous stunts that children copy and try to do 

themselves—is just as harmful, if not more so, to society, and particularly to young children. Why are they on? Because people like 

to watch it. They’re not on there to shove it down anybody’s throat. 

They have those programs on there because they sell advertisement, and people watch those programs. I mean—so what’s your 

responsibility in that area? I mean, that type of violence is worse 

than a halftime show, as far as I’m concerned. 

Chairman POWELL. I will take my cue from my children. And, by 

the way, I want to commend Senator Brownback, who’s sent me 

many of these studies, and I’m fairly convinced about the connection between the violent images people see and effects on the children. I see it in my own. 

Back to your question—but I’m almost more offended by the 

video-gaming access of children, which, interestingly enough, for 

example, little boys almost don’t watch television anymore. You’ve 

almost lost the little boy generation to the video gaming world, and 

it’s already been reflected in the Nielsen ratings. Where are they? 

They’re not there. They’re on their Xbox and the PlayStation, playing anything from Grand Theft Auto to some pretty extraordinary 

stuff that will pale anything you’ve ever seen in prime time television. So I think that’s an important thing to think about—— 

Senator BREAUX. But you have no jurisdiction over that? 

Chairman POWELL. No, not really. There are arguments being 

made about whether somehow we could redefine the indecency 

statute to include violence. And I would only suggest, while that 

might be possible at the very margins, I think the most proper way 

to do this, if we were going to do this, there really should be a statutory basis for doing it, because I think that we would likely not 

get very far trying to be cute with that interpretation. 

Senator BREAUX. Thank you. 

Senator BROWNBACK. Thank you, Senator Breaux. And I thought 

those were very thoughtful comments. 

Thank you for being here. And I’ve met with most of you on this 

topic at some point in time. And I know your hearts, and they’re 

in the right place. And I think you share our frustration of, ‘‘OK, 

now the rubber’s met the road here, let’s get something done with 

this.’’ 

I want to go through a couple of items here. And I think there’s 

interesting question to ask that we—it would be great if the Commission would do this. Yesterday’s USA Today asked the question, 

63 

‘‘How did we get from ‘I Love Lucy’ to ‘I See Janet’?’’ And it’s a 

great line. And most of us have been alive long enough and consumers of television long enough, we’ve actually seen this take 

place. 

Can we go back, in a case study, and ask ourselves, How did we 

fall down this far? How did we get to this point, where you have 

this on prime time television—Janet Jackson—and then all of us 

commenting up here. But that’s no big deal. If you just flip the dial 

over to MTV, this is regular MTV. But can we go back and do a 

case study of—how did we get from point A to B on this chain? 

Maybe we can, from that, start to dig ourselves a set of answers. 

And I’ve liked several that I’ve heard some of you come up with 

here today that I think we can work on. And I’m cognizant—very 

cognizant of the limitations. First Amendment—I am not a censor. 

It would not stand up in court. I don’t stand for it myself. There 

are greater limitations on cable than what we can do on over-theair broadcast, by the way the courts ruled. So you’ve got some additional parameters that you have to work it. 

But, as well, guys, you know, I’m—how can the ‘‘F’’ word not be 

vulgar? And maybe you’re teaching people a little bit about 

English, of whether it’s a noun or an adverb. I don’t know that 

many people using it question that. But adjective, adverb, noun, 

however you want to use it—I’ve heard it used a lot of ways, but 

this is vulgar. You know, and I really hope you can turn that one 

on around. 

I want to ask you, as well, if you can consider doing the type of 

study—or maybe we’ll just request the FTC to do it—of target marketing of sexual material to under age audiences. Because when we 

did that—when the FTC did that on violent material, they found 

that these companies were readily target-marketing violent material. They would say it’s violent material, which, normally you’re 

supposed to be 18 years of age to watch it, and then they were target-marketing it to under age 18 audience. 

I am virtually certain that what we will find on MTV is that, 

here is sexual material target-marketed to an under age audience—under age 18 audience. I am certain of that. I don’t think 

that study has been done at all. This is material that’s rated as 

adult material. Yet it is just, pure and simple, target-marketed. 

And yet we’re all offended and amazed when it’s on the halftime 

of the Super Bowl. Actually, that’s reaching an older aged audience 

that it was target-marketed toward. 

And this has a pernicious effect on the society. I want to show 

you a chart here of sexually transmitted diseases. Now, you can 

say, OK, these are not direct causal impact, but I would suggest 

to you it’s pretty close. And I think as we get into these studies 

on it, you’re going to see the impacts of these areas, of sexually 

transmitted diseases and violent activity. We are seeing it in the 

violence behavioral studies. I think you’re going to see it in the sexually transmitted diseases fields, as well. 

Yesterday, I was on the phone to University of Indiana researchers, University of Indiana Medical School. They’re the ones that are 

leading the country—and I would urge you to contact them and 

bring them in to testify—leading the country on brain-mapping 

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64 

ing violent entertainment. Got some great early materials out on 

this. Because we’ve got all these behavioral studies that show that 

it’s connected, but it doesn’t seem to cause anybody to react. 

But, in these, their studies are showing exposure to excessive violence in the media shows similar brain functions in children as 

those who suffer from attention deficit hyperactivity disorder and 

attention deficit disorder. And what they were basically saying to 

me on the phone yesterday is what happens when a child readily 

consumes this video game material—Chairman Powell, it’s what 

you’re saying, and it’s what I’m seeing in my children—you are losing this younger generation to the Xbox and the interactive nature 

of it. What you’re seeing is, while the reactive part of the brain is 

really fired up, the one that’s just stimulated and just reacts, the 

cognitive—the thinking part of the brain that slows you from just 

reacting to a reflex reaction—the part that says, ‘‘Now, wait a 

minute. Let’s think about this a second’’—is depressed. Its activity 

is actually going down. That cognitive part, the front of the brain, 

the activity is actually going down, while this reactive part is going 

up. 

So what we’re seeing in the behavioral studies, now we’re getting 

the hard sciences. Here’s what’s taking place. You’re actually slowing that cognitive part of the brain down, depressing it, while this 

reactive, stimulated part of the brain, the reflex part of the brain, 

is actually being stimulated up. 

And what we’ve created now is a toxic culture. We used to have 

toxic waste in the environment. We have created a toxic culture— 

sexual material, vulgar material, violent material. And we see the 

reaction to it, we see impacts. We now are getting the brain studies. And I think we’re going to need to fund more of the brain-mapping studies so we have the hard science to go to the entertainment 

industry and say, ‘‘Here’s the hard science. It’s no longer behavioral 

studies, it’s no longer is there causation correlation. Are we going 

to argue these points? Here’s the hard science on it.’’ And the early 

studies are showing that the connectivity between watching—consuming a lot of violent material and being violent, the linkage to 

that is higher than that between smoking and getting lung cancer, 

so that you’re showing a clear impact on this culture. And we may 

have to, in the future, just require more of these studies—behavioral studies, brain-mapping studies—to know exactly what are we 

feeding that child’s mind? Because that’s the bottom line what I’m 

trying to get at, What am I feeding that child’s mind? 

I watch what my children eat. Not as well as I should, but I try 

to watch what fat, what sort of diet they’re ingesting in their body. 

What’s more important is, What am I feeding their brain? And 

what are they getting in their brain? And we, unfortunately, are 

seeing now what they’re getting in their brain and their reaction 

that it’s then causing as they go ahead and develop through this 

society. And it is past time to get on top of it. 

I’m going to push the leader to bring up the bill on tenfold increasing of the fines. I think that’s a first step to at least give you 

folks the better authority that you need. I think we ought to look 

at how we go at cable industry within the First Amendment. I’m 

not a censor. I think we have to look at an FTC study on target 

marketing of sexual material to under age 18 children. And maybe 

65 

you folks—I think it probably fits more at the FTC. They’ve done 

this before. 

And then I hope we can look backward, How did we get to this 

point, to the point of where we are today, that we’re all just—almost throw our hands up? But it’s not time to throw our hands up. 

Now’s the time to dig in, do the hard work of legislating and enforcing in a sensible, constitutional fashion, and start to dig out of 

this hole. And we can do it. 

Long comments. I know you’re up to the task of doing it. 

Senator Lautenberg? 

Senator LAUTENBERG. Thanks, Mr. Chairman. And my compliments go to you for your interest in this subject for such a long 

period of time. 

We are witnessing a poisoning of our society, and it’s a dreadful 

thing to stand by and see it happen. And one of the things that 

concerns me—I respect greatly Chairman Powell’s protection of the 

constitutional rights that we have, but I don’t know whether that 

turns us into more spectators bemoaning our fate than taking some 

kind of action to deal with it. 

The public appetite for sex and violence certainly isn’t diminishing, because these shows, these commercials, are getting big responses. So how do you say, ‘‘OK, you shouldn’t like it this much,’’ 

without really introducing censorship of some serious nature? 

So that’s a concern. And we were able to find a CNN Website 

that said there are 260 million pornographic Websites, that it’s an 

1800 percent increase in 5 years of these. The average age of viewing is 11, and 90 percent of the kids from 8 to 15 are seeing pornography while they’re doing their homework. This is so pervasive 

and so destructive, in my view. I played football, and I did all the 

things, and I served in the military, but I’m revolted by the violence that we see constantly. As a matter of fact, I try not to go 

into the movie theater before the—or until the previews are done, 

because each one of those portrays violence in a way that attracts 

people. 

So I don’t know what we do about that appetite, but—Mr. Chairman and your colleagues, and I think you did a very good job this 

morning. I don’t agree with the outcome of some of your decisions, 

for instance the Bono statement at the Golden Globe Awards show. 

Did you review the decision of the enforcement bureau before it 

was issued? 

Chairman POWELL. No. 

Senator LAUTENBERG. No? 

Chairman POWELL. No. 

Senator LAUTENBERG. Because the decision that’s made seems 

more on grammatical structure and not the public sensibility about 

whether it’s used as a part of speech; one is OK, on one hand, and, 

on the other, it’s considered unacceptable. 

That coincides with something else that I’ve noted, that your critics have noted that the FCC last year received about 240,000 complaints about some 375 radio and television programs, but issued 

only three fines. And we all kind of agree that the fines are piddling compared to the lesson that we’re trying to put out there. 

But—the inadequacy of fines is one problem, but what about the 

lack of effort or attention, when, out of 240,000 complaints, there 

66 

have been three fines that were issued? Doesn’t that seem fairly inadequate to respond to the number of complaints that you got? 

Chairman POWELL. Yes, I would accept that criticism, but make 

a couple of points, if I could, just to put it in perspective. 

Senator LAUTENBERG. Sure. 

Chairman POWELL. 240,000 complaints over 375 programs, so 

the number of potential programs to fine is not the 240,000, it’s the 

375 programs. Last year, there were 13,000 complaints, but a similar number of programs. Actually, more programs were complained 

about the year before, with fewer complaints. And, you know, this 

is out of how many television programs a year? Conservatively, I 

would estimate television programs alone are probably in the 1.4 

to 2 million programs-a-year range. That’s not even adding radio. 

And since we don’t enforce against cable, some amount of that 375 

are cable complaints that we wouldn’t act on. The penalties of this 

Commission compared historically to other Commissions are absolutely consistent and, frankly, more than the history of the Commission, and I can’t defend all the years previously. 

That said, is the ratio itself a sign of poor enforcement? I suppose 

one could argue that, but not without looking specifically at what 

each of those cases were and whether our decisions not to take actions were defensible ones. We’re a robust society. People complain 

about content all the time. It’s our difficult judgment to sort 

through what’s actionable under the law and what’s not. We bring 

the fines that we think are warranted. But I just think—— 

Senator LAUTENBERG. Yes, I would urge a more energetic response to this thing, if I can use the term. 

Since we know that the appetite is almost insatiable out there 

among a large part of our society, you say, well, how do you get 

the message across that says, ‘‘Hey, you’ve got to stop this?’’ And 

I wonder what would happen if there were consumer organizations 

that started to form and said, ‘‘Look, you advertise that trash, that 

filth, that vulgarity to sell your product, we’re just not going to buy 

it,’’ and to see whether something could be done on the commercial 

side, because—Senator Graham talked about the family involvement, and that’s true, but somehow or other that message doesn’t 

get through as we’d like to see. It’s too convenient. It’s a babysitter 

in the home. So throw on the TV, ‘‘Go watch TV and let me get 

done with the wash.’’ 

So I think there are things that we can do, Mr. Chairman, not 

the least of which is to stay on top of this and urge energetic—and 

to take the enforcement side to the limits possible without invading 

the constitutional rights of our citizens. 

I thank you very much. 

Senator BROWNBACK. Thank you, Senator Lautenberg. 

Senator Lott? 

STATEMENT OF HON. TRENT LOTT, 

U.S. SENATOR FROM MISSISSIPPI 

Senator LOTT. Thank you, Mr. Chairman. 

I believe we have a vote on now, so—and I did come in late, and 

I apologize to the Commission for not being here to hear your statements. Thank you for being here and for the work you do. You do 

take a little criticism along the way, both from us and others, and 

67 

you, I hope, understand that that’s the way the job works. And I’ve 

been a—— 

Chairman POWELL. Better than anyone. 

Senator LOTT.—among those that have been critical. But when 

you do the right thing or say the right things, I think we ought to 

also acknowledge that. I think, Chairman Powell, what you’ve had 

to say, since this recent incident, has been positive. I hope you will 

follow it up with action. I heard one radio announcer this morning 

talking about, ‘‘Well, you know, yes, they might change their conduct a little bit here in the next few days, wait for the storm to 

die down, then they’ll go right on back to what they’ve been doing.’’ 

Same thing with FCC. You all will do as you’ve done in your 

statement, call on, you know, some voluntary action, work with, 

you know, the networks to do more to curb indecent, inappropriate, 

violent programming, and volunteer code of conduct. I don’t think 

it’s enough. I think you need to be very aggressive on this. 

And I think we’ve got to be more aggressive. I don’t think we’ve 

given you enough tools. I support increasing the fines by ten times. 

I checked to see if we could move the FCC reauthorization we 

passed last year that’s pending in the Senate for action. The answer is, no, it has all kinds of problems, and we’re not going to be 

able to move it in its present form. Lots of people have holds on 

it. So I think we should try to move the tenfold fine increase separately and freestanding to show that we’re doing something, but in 

line with making sure we don’t just make this a hot reaction to one 

event. It is much broader than that. 

Shouldn’t we put this enforcement also against the everybody— 

cable companies? I mean, it should be across the board, shouldn’t 

it? 

Chairman POWELL. Well, yes, in short. I think that—— 

Senator LOTT. We need to do that—— 

Chairman POWELL.—if you’re going—— 

Senator LOTT.—legislatively, right? 

Chairman POWELL.—honestly want to talk about this stuff on 

television, you’re missing 85 percent of the story—— 

Senator LOTT. Yes. 

Chairman POWELL.—if they’re completely out of the discussion. 

Senator LOTT. Yes. I believe it’s being proposed by some people 

in the House. Maybe you already have this authority, but sort of 

a three strikes and you’re out/lose your license sort of thing. Do you 

have that authority? Is there legislation pending in that regard? Is 

that something we’d want to consider? 

Chairman POWELL. I don’t know if there’s legislation pending in 

that regard. I’ll defer to others on that. It’s—— 

Senator LOTT. You don’t have that authority? 

Chairman POWELL. It’s not clear. I’ve actually thought about it. 

It’s possible. I think it’s something we should study or consider, 

whether there’s an axiomatic number, and over what period of 

years would you do that. 

Senator LOTT. I can tell you, and you know it, the American people are about—are getting fed up. Are they doing enough to control 

their own children and what they watch? No. Is the anxiety rising? 

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ing? Absolutely. And I hope maybe this has been the match that 

lit the fuse where we’ll finally get some action. 

I think we need to do a lot more, a lot more aggressively. And 

that’s one reason why, by the way, I opposed y’all’s decision last 

year, and continue to oppose it. I think further concentration and 

consolidation is bad, because these people are already insensitive 

to what the American people are saying. And it’s not just about 

children. It’s just—what we’re seeing, what’s being shoved on us in 

large doses is totally out of control. And, frankly, when you get big 

enough, you don’t care, and you don’t pay much attention to your 

local affiliates; you do what you want to, and then hide behind the 

First Amendment. And I don’t think that’s a good idea. 

Now, Dr. Copps, I sense that you’ve been anxious to say several 

things. 

[Laughter.] 

Dr. COPPS. Thank you. 

Senator LOTT. Let me just give you a blanket opportunity to comment on anything you’ve heard in the last few minutes, and I’ll 

stop with that. 

Dr. COPPS. That’s the nicest thing anybody’s said to me in a long 

time, Senator. 

[Laughter.] 

Dr. COPPS. I appreciate that very much. 

First of all, I think we do have that power to revoke licenses. I 

don’t think we need to be giving notice for it. It has been in the 

statute, it has been in the rules, and we ought to be exercising it. 

But I want to return to the question, because so many have alluded to it, you in your comments, Senator Brownback’s question, 

How do we get from I Love Lucy to I See Janet? And certainly 

time’s change, and nobody’s talking about going back to the mores 

of the 1950s. But I think we’ve got to look within, and look at ourselves, and look at the culture that we have created for this—not 

broad culture, but just the legal and the regulatory culture for this 

kind of thing to occur. And we, at the Commission, have been 

guilty of this, too. 

I think, you know, we don’t come with serious fines. And we can 

sit here and debate whose Commission had the biggest fines, but 

nobody’s Commission has had credible fines, Republican or Democrat, this or any previous one. So we need to be fixing that. 

But I think that all this talk, which we’re finally beginning to 

disabuse ourselves of, ‘‘we don’t need a national nanny,’’ ‘‘our people are getting what they want,’’ or ‘‘they can turn off the set,’’ or 

‘‘the V-chip can handle it,’’ all of that is contributory, because it 

just tells big media that they can just go right ahead without fear 

of punishment and without fear of retribution. And as you so eloquently said, media consolidation is certainly flashing a green 

light, and we see it flashed again this morning with the latest takeover attempt with Comcast and Disney. 

So I think there may be many reasons for how we got from I 

Love Lucy, but I think we should probably look within, and, like 

Pogo, maybe the enemy is us. 

Senator LOTT. Thank you, Mr. Chairman. 

Thank you, Commissioners. 

Senator BROWNBACK. Thank you, Senator Lott. 

69 

I’ve got a few questions to ask. We have a vote on, and several 

Members are coming back, and they all asked me to hold you here. 

So I hope you can stay in, in patience, because obviously this is a 

very hot topic for people. 

Dr. Copps, what you said, I think, is accurate on this, in that we 

have given the media companies a pass on this and said this is the 

parent’s responsibility. And I agree; as a parent of children, I am 

responsible. But I liken it to saying that when, in the 1960s, the 

Potomac was getting polluted from point-source pollution, that we 

should tell people, then, ‘‘Well, don’t swim in it. Don’t eat the fish. 

And if you want to swim in it, put a wet suit on.’’ You know, instead of saying, ‘‘Well, let’s clean it up.’’ And we didn’t take that 

route at that point. We didn’t tell the big companies, ‘‘Well, you’re 

not really at fault, you know, it’s not your responsibility.’’ We said, 

‘‘No, you’re responsible. You did this. You clean it up.’’ And we really started going at it. And this is a cultural environment now we’re 

dealing with, and it’s pervasive, and it has toxic impact. 

So now how do we back up and unwind that ball? I think you 

can start off with issuing some fines and looking at what you can 

do on removal of license. And then I do think we’re going to have 

to take a hard look at cable, of what we can do in that area. 

Chairman Powell, I’d ask you, do you have—what are the next 

steps you’re going to be taking on this issue? It’s obvious that the 

Commission has agreement that something needs to be done. What 

would you articulate as the next several steps you would anticipate 

you’d be taking? 

Chairman POWELL. Let me just say generally and then with 

some of the specifics that you’re aware of. By the way, it hasn’t just 

been in response to the Super Bowl. I think anybody who wants to 

honestly and fairly look at this very Commission’s track record over 

the last 3 years will see a steadily intensifying effort on indecency 

enforcement. And I credit every single member of this Commission 

for having a role in that. Each has something that they can take 

credit for for helping bring to our attention. But the thing that’s 

admirable about the Commission is it has accepted and endorsed 

most of those things and moved forward. Some of them include dramatically—being as creative as we possibly can to raise the level 

of fines that we can raise by counting as creatively as we can. That 

means we’re not using routine base amounts—at $7,000, for example, which used to be the practice—and we almost routinely now 

come in at the high levels of 27,500. We’ve started fining multiple 

affiliates for the same offense. We’ve put people on notice that we 

will fine per utterance instead of per program. That’s a dramatic 

increase. No Commission ever has done that before. That’s something the Commission deserves credit for. 

I think that we have talked about revocation. But we’re not a 

star chamber. Just because we believe it’s a tool doesn’t mean we’re 

going to go out and get somebody and put them in there just to 

make a point. If the Commission, in its judgment, believes that 

somebody has either repeatedly or seriously offended the indecency 

laws, I have no trouble whatsoever revoking a license. I think you’ll 

see more stringent threat and potentially use going forward on that 

issue. 

70 

The other thing is, we want to work with Congress. We call for 

the fines, not to disabuse our own responsibilities. As I said in my 

testimony, the first place we look is ourselves. But even if we maximize fines every conceivable way under the statute, fines that are 

15 and a half years old and are not even calibrated for cost-of-living adjustments, simply are inadequate. And I think it’s responsible for us to work in partnership with the Congress to do that. 

Finally, I would say, with respect to—we’ve also worked very, 

very aggressively to pull backlogs down. When this Commission 

took office, there was a significant amount of backlog in the enforcement agenda altogether. We’ve made enormous strides in that, 

and we need to do a lot better so that we can be swifter on complaints, act on them faster, and dispose of them quicker. That’s a 

challenge for the agency, always dealing with its resources and appropriations, but we’re committed to making that a priority. 

And then, finally, with respect to these high-profile cases—and 

I would submit to you, the Super Bowl is only one of many that 

are heading to the Commission’s desk—that we have out there that 

are probably very significant and will involve very significant penalties, and I think you’ll see a steady stream of those over the next 

several weeks and months. 

Senator BROWNBACK. I hope you can hold some Commission 

hearings across the country on this topic. You know, I think, Commissioner Abernathy, you mentioned about one of having the people from the industry. And I feel like sometimes the entertainment 

industry has put itself in a cocoon. Washington gets accused of 

that; sometimes rightfully so, but we really try to fight against 

that. I do think that industry has. And as long as the money is 

flowing, everything’s fine. But to bring them out of that cocoon and 

hold the hearings—in Kansas City, I would welcome you—— 

Chairman POWELL. Next week? 

Senator BROWNBACK.—Atlanta, places around the country, so 

that they can hear what people are really saying. Because I get 

this raised to me just all the time, is, people are fed up with fighting a culture to raise their kids. They feel like they’re just being 

attacked all the time from it. 

Commissioner Powell, let me ask you, on the cable issue—because several of you—I’m hearing a little dissidence here about, 

‘‘We need to address it. We’ve got tougher standards to address it.’’ 

Can you, will you, be willing to work with the Congress on how we 

can statutorily give you the authority to address the cable industry? And what kind of strictures would you see there? 

Chairman POWELL. Most certainly, we’re always ready to work 

with Congress on this agenda and our enforcement generally. So 

we would really be happy to do that, and we’d welcome the opportunity. 

And, by the way, you know, my obligation, as advising the Committee about its restraints, are not an attempt to be dismissive 

about—— 

Senator BROWNBACK. No, I understand. 

Chairman POWELL.—the importance of it, but for us to be honest, 

to be intellectually honest and sober about what our challenges will 

be. 

71 

I do think the Constitution and the First Amendment are a significant challenge. You cannot just easily take the broadcast model 

and roll it over to cable. The case that has been cited of Playboy, 

it’s important to mention, yes, they said the Commission has the 

authority, and struck it down; and struck it down because they 

said the Constitution requires you to use the least-restrictive 

means. There are least-restrictive means in cable than there are in 

broadcasting. For example, Commission Adelstein rightfully talking 

about the ability to block programming. That’s not something you 

can do in broadcasting—when a show is coming over at 8 o’clock, 

it’s coming over at 8 o’clock. It’s a one-medium medium. Cable has 

all kinds of technical capability that can be employed to help empower parents and families that broadcasting doesn’t. And I certainly would be interested in looking there first, at whether cable 

can have a behavioral responsibility, but the tools—and not expensive ones that consumers have to pay for—but the tools are there 

for people to really make informed choices about what they don’t 

want on their system. That’s the second thing that I would look at 

very carefully. 

And then you kind of figure out who you’re talking about with 

respect to cable. It’s a different model, in the sense that, you know, 

what’s on the Discovery Channel is the responsibility of the Discovery Channel. It may be on Cox Cable, but who are we going to 

focus our attention on, the programmers or the cable asset owner? 

And I think—I don’t know the answer to that, but these are some 

of the additional things to focus on. 

And I think the fact that those programs run all day, full day, 

so you have genre channels—you know, the History Channel runs 

nonstop—so ideas that we’ve become we’ve become accustomed to 

in broadcasting, like a family hour or a block of time or something, 

is restricted or just a little tricker in the cable context, where you 

basically are buying separate spaces, and they run all day; so, you 

know, sometimes Comedy Channel is clean, and sometimes it’s horribly dirty, but it can be on all day long. I haven’t completely 

thought through the best way to focus on that if I were asked, but 

I just help you point out some of the issues that you’ll have to focus 

on. 

Senator BROWNBACK. Let me point out something to you that you 

know is coming. Yesterday’s USA Today, again, says that NYPD 

Blue is considering broadcasting a different episode in Central and 

Mountain time zones than elsewhere because of the Janet Jackson 

incident. Two points off of this. Number one, is that acceptable way 

to go—you just don’t offend us out in the middle of the country, and 

you can go at everybody else, that’s OK—is one. 

And, second, are we going to need to—are we going to have to 

require that these programs go through—that they have a review 

before it comes out? I’m seeing people now putting time delays on 

broadcasting, for them to make the call. Is that going to have to 

be something that we’re going to have to require of over-the-air 

broadcasting companies, that there’s some sort of at least private 

review by them of a delay so that it gets caught? 

Chairman POWELL. I personally support time delay as a sort of 

reasonable tool to deal with the problem of live broadcasts. I think 

there is a challenge, when you’re covering a live event, that one of 

72 

your talent—or one of the people that are being covered in the live 

event were to suddenly do something indecent or profane, what are 

the effective ways that you could prevent that from getting out over 

the airwaves. Once it’s out, the damage is done. But we have this 

in our society all the time. I mean, in the Super Bowl, you will 

watch players jog off the field all the time, and you have no 

doubt—no trouble understanding what they’re saying if they’re 

cursing. If CNN is interviewing a soldier in Iraq, and he suddenly 

blurts out the ‘‘F’’ word, you’re going to have those kinds of challenges in live television all the time. And so time delay seems to 

me to be a noncontent-based/respective of the First Amendment approach to trying to grasp that so that they get 7 seconds of notice, 

and they have a fair opportunity to prevent that from going out 

over the air. 

That’s why I think this week you’ve seen a whole string of announcements from what seems to be every single network about deploying time delays in their upcoming live programs. 

Senator BROWNBACK. I want to get to the second part later. I 

need to go vote. Senator Wyden’s here, and I’ll give the running of 

the Committee to him until I get back from that vote. 

Senator Wyden? 

Senator WYDEN [presiding]. Thank you, Mr. Chairman. 

Mr. Powell, I have been looking at the nature of the enforcement 

actions you all have brought, and fines and all of the data that essentially relates to how the Commission has proceeded in this area. 

And it looks to me that there is a clear bottom line here, and that 

is that the locally owned station is rarely the culprit here. If you 

look at all of the evidence, that’s the conclusion you come to. 

The question I wanted to ask you, and I wanted to get it on the 

record because it relates to the consolidation debate, ‘‘Do you think 

it’s just a coincidence that, when you review the data, these locally 

owned stations are rarely the culprit?’’ 

Chairman POWELL. I don’t know for sure that I agree with that, 

that the local stations are never the culprit or rarely the culprit. 

Senator WYDEN. Read this morning’s Washington Post, Mr. 

Chairman. This morning’s Washington Post says—— 

Chairman POWELL. Well, that’s fine, but the—— 

Senator WYDEN. No, but that’s a matter of—— 

Chairman POWELL. All right. 

Senator WYDEN.—public record. I mean, we’re talking about 70 

percent, or something like that, essentially against the large, you 

know, conglomerates. And so what I want to do is, I want to take 

facts that are on the record—I mean, we all know you can have a 

debate about the politics forever, but it is clear, when you review 

the record, that the disproportionate number of actions are brought 

against the large people, which has led me to conclude that these 

local stations are rarely the culprit. And I would just like you to 

tell me, for the record, whether you think that’s a coincidence or 

there are factors that I’d very much like to have your opinion on. 

Chairman POWELL. Well, out of respect for the Washington Post, 

I will assume the data to be true. 

Senator WYDEN. But it’s in other sources, too. 

Chairman POWELL. OK. We keep that data, and I will certainly 

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73 

tant to note, that a lot of local broadcasters might not be the culprit because 70 to 80 percent of the programming they clear and 

they run, they purchase from networks and other sources of programming. So your local television station, no matter who owns it, 

by the way—and this is not much different for stations in large 

ownership groups or stations that are not—purchase the vast—you 

know, carry the vast majority of their programming from network 

sources. So it’s just a dramatically higher probability that an offending programming—an offending program comes from a network. 

Networks basically are programming a substantial part of what 

our citizens see every day. So with the exception of the local news 

or perhaps the Washington Redskin report in the Washington D.C. 

market, the vast majority of what you’re watching on that local 

product during the day is being produced by a network, no matter 

what size the network. 

Senator WYDEN. Well, I think that’s fair to point out. At the 

same time, I come to the conclusion that if you have to shop next 

to somebody, and you have to see them at the little league team, 

you’re going to be a little bit more careful about offending, and certainly as it relates to shows that aren’t one of the 9 or 10 o’clockat-night network shows. I’m prepared to make an allocation for 

that, but I still keep coming back to figures that it seems to me 

are irrefutable. Did you want to comment on this, Mr. Copps? 

Dr. COPPS. Yes. Almost everywhere we have been—in our mediaownership hearings that Commissioner Adelstein and I went to last 

year and to our localism hearings that all of us are going to this 

year—I ask the owned and operated station owner, who is always 

there testifying, if he has ever, ever, ever preempted a show for indecency reasons. I have yet to find one network owned and operated show who has done that. I also ask the independent and the 

affiliated station owner have they done it, and time and time again 

they answer, ‘‘Yes, we’ve preempted Married by America—it didn’t 

conform to our community standards’’—or Temptation Island, all 

these things. So I think the premise of your question is right on. 

And as to the question of the veracity of those findings, I think 

it’s actually 80 percent of those fines, and 80 percent have gone to 

just the two big consolidated companies. 

Senator WYDEN. All right. 

Let me ask, while I have all of you here, about an issue I’m looking at, and it stems from the fact that once in awhile you write a 

law that exceeds your expectations. Last year—I think you know 

this, Mr. Chairman, because I discussed it with you—I wrote, along 

with Senator Collins, the Stand By Your Ad requirement in 

McCain-Feingold. It wasn’t last year; it was part of the McCainFeingold legislation. We thought it was going to make a difference. 

We thought it was going to be useful. And it essentially grew out 

of the campaign that neither I nor Senate Smith were particularly 

proud of back in 1995 and 1996. And so I wanted to do something 

about the negativity of political advertising. We thought that the 

legislation I wrote with Senator Collins would make a difference, 

but it has far exceeded our expectations when you had every candidate concerned about the lowest unit rate, and they’re all stepping right up and saying, ‘‘I authorized the ad.’’ 

74 

My question to you is—and I would be interested in the views 

of any of your colleagues, as well—is, do you think that there is 

any way we might build on that model to enforce some broadcaster 

accountability? In other words, it clearly is not the same thing, and 

I understand that. And one of the things that’s attractive about 

doing it with respect to political advertisements is that, because 

the ads are so short, when the candidate says it right at the end, 

there is a kind of ownership there that’s constructive. But I am— 

I’m interested in whether or not it might be possible to put some 

additional heat on a broadcaster through an approach that would 

build on Stand By Your Ad, which, for once, exceeded the expectations of what the authors thought it might accomplish. 

Chairman POWELL. I mean, could I ask—so the suggestion would 

be, somehow a commercial advertisement, whoever profligated that 

advertisement would somehow have to be identified? 

Senator WYDEN. Well, I’d like to hold the broadcaster responsible, just as we have done with political candidates in Stand By 

Your Ad. As I say, now the American people, when they turn on 

this upcoming fall election, they’re going to see candidate after candidate basically have to stick to the record, where in the past they 

essentially ran all those commercials where their opponent looked 

like they hadn’t shaved for weeks and was essentially on a weekend break from some prison, and there’s a new accountability. And 

what I’d like to know is whether you think we might be able to 

build on that model to get a broadcaster to take full responsibility 

for the kind of violent and overly coarse content that we’re discussing. 

Chairman POWELL. In the advertising? I’d have to give it more 

thought, but I think one part of your question that I think is correct, in terms of the premise, is that, you know, the broadcaster, 

either local or national advertising, is—there is an editorial responsibility there. They choose which ads to take and whether or not 

and when to put them on. So certainly there’s a level of responsibility as to the choices being made about what runs. I’d like to 

work with you and think a little more about exactly how this Stand 

By legislation would work. 

Senator WYDEN. Why don’t we do this, because I am springing 

this on you cold, and I understand that. I would very much like to 

have the Commission take a look at this. We have a statute that 

is working now in the political area. It holds politicians accountable. I would like all of you to look at whether you could take that 

model and use that model in some fashion to hold the broadcaster 

responsible for the kind of material that is over the line and we’re 

concerned about. And since I am offering it to you for the first time, 

if all of you would be willing to take a look at it and put the staff 

on it, I’d appreciate it. 

Chairman POWELL. Yes, sir. 

Senator WYDEN. Thank you all, and—appreciate all your patience this morning. 

Senator DORGAN [presiding]. Members of the Commission, thank 

you for being with us. I guess I am probably the last to ask questions, and I will limit my time to 30 minutes. 

[Laughter.] 

75 

Senator DORGAN. I’m just, of course, joking. I’ll be brief. But 

you’ve been here a long, long while. We appreciate very much the 

entire Commission being willing to share your thoughts with us. 

Let me ask a few questions about the will to regulate. This is a 

regulatory body. You all were confirmed to your posts by the U.S. 

Senate. You all appeared here before this Committee. And I think, 

with respect to most of you, I always said, you know, I hope that 

you’re a tiger on these issues, that you have a will to really be a 

regulator, in the best sense of the word. And there does require, 

in my judgment, to be some regulation with respect to use of the 

airwaves, because the airwaves don’t belong to those who are using 

them; they belong to the American people, and we license them for 

use, and we require certain things attendant to that licensing. 

Let me ask, have there been any revocations of licenses of either 

television or broadcast—or radio broadcast stations in recent years? 

Not just with your tenure, but in recent years. And if so, how 

many? 

Chairman POWELL. Never, to our knowledge, in the whole history 

of the Commission. 

Senator DORGAN. Does that seem implausible to you, that we 

have these thousands and thousands and thousands of broadcasters with licenses to use something that belongs to the American people, that there has not been one revocation? And the reason I ask the question is, you know and we know now that there 

is a changing standard of behavior and what is happening in some 

areas on some programming is pretty disgusting. Should there 

have been, do you think, or should there be, aggressive approaches 

to say, you know, ‘‘Look, you have responsibilities. If you don’t 

meet them, you have at least the prospect of losing this license’’? 

Chairman POWELL. To be clear, just on the—we have revoked licenses over the years. Something like, almost three, on average. 

Some people are saying per year. I’d have to check on that. But 

none for indecency. Do I think, over the entire history of television, 

could there have been a case in that time period in which that was 

warranted? Certainly—most certainly possible. 

One of the things that we did is, when this issue was really emphasized by both this Committee and my colleagues, we moved toward a much more aggressive stance in this Commission to make 

clear that we intend to pursue that. And I don’t have any problem 

whatsoever pursuing that on a going-forward basis with respect to 

our regulatory responsibilities. 

Senator DORGAN. Do you think, based on your stance at the moment, that the prospect there are broadcasters who think if—‘‘Look, 

if we move well beyond where we ought to be here, we might lose 

our license’’—do you think that’s a practical thought for some of 

these folks? 

Chairman POWELL. If they have any wisdom whatsoever, it 

should be. We announced it formally in the context of our opinion. 

The fines and enforcement of this Commission is strict and stringent compared to any Commission previously. We have made public statements in response to outrage on television. I think we’ve 

telegraphed, with some aggressiveness, that that is—to ignore that 

is at your peril. 

76 

Senator DORGAN. Yes, but taking effective action and saying, 

‘‘You just better watch it,’’ are two different approaches to enforcement, and I think—I’m not suggesting this Commission is different 

than other Commissions; I’m saying I think there needs to be a 

will. And my hope is that perhaps this is a tipping point. Maybe 

we’ve come to a tipping point on this issue. After so many decades 

of discussing it in Congress, we’ve finally gotten to the point where 

we have a tipping point, and we’ll have the FCC and Congress decide something really is going to happen here significant to change 

what’s going on. 

Let me ask about the issue of concentration. You all know I feel 

very strongly about that. I think with fewer and fewer people determining what people in this country see, hear, and read, it is 

very troublesome. And I happen to think—and I’d like your analysis of it—I happen to think much of what’s happening with respect to coarseness and indecency and obscenity in broadcasting 

has to do with a concentration of ownership, because the more aggressive concentration of ownership you have, the less localism, 

and the less localism—as my colleague, Senator Wyden suggested, 

you know, you don’t have to care much about what they think in 

the grocery store because you’re not going to meet them. 

Dr. Copps, you touched on that briefly. I’d like anybody that 

would like to—do you think there’s a connection here between concentration and the diminution of standards? 

Dr. COPPS. I think there’s a definite connection. We should have 

debated this before we relaxed the media-ownership rules last year, 

and I requested that we do so; because everywhere I went around 

this country, I heard people saying, ‘‘We think there’s a connection 

between the rising tide of indecency and the rising tide of media 

consolidation.’’ I don’t know if that’s a causal effect or a correlative 

effect or what it is, but I think we owed it to our kids to tee that 

up and at least amass a halfway credible record before we voted. 

But I think—and I don’t think I’m going too far on this—that 

when you flash the green light for consolidation, you’re just inviting more indecency. I notice one of the big mergers that recently 

was approved at the Commission, and the next day we read that 

that particular outfit was teaming up with somebody else to offer 

a porn channel. I mean, that’s the kind of thing, I think, that we’re 

going to see more of as consolidation increases. So I think the problems are intricately related. 

Senator DORGAN. Anybody else on that? 

I should just parenthetically say, it’s my hope that perhaps the 

Super Bowl halftime program might persuade ten House members 

to sign a letter in the House, which will then give us a vote in the 

House, and perhaps they will pass the disapproval resolution that’s 

already passed the Senate by a fairly wide margin with respect to 

ownership limits. But we’ll wait and see whether that Super Bowl 

halftime performance has that salutary effect. 

Let me ask about the ‘‘F-word’’ issue. And I know—let me say, 

Chairman Powell, I know that you have announced an effort—or 

I don’t know, you might want to explain what you’ve announced— 

but you’ve announced the fact that you don’t feel comfortable at all 

with where this issue is at the moment. The enforcement bureau 

in the FCC, as you indicated, issued a ruling on the use of the soVerDate Nov 24 2008 10:35 Jul 13, 2016 Jkt 075679 PO 00000 Frm 00080 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\20693.TXT JACKIE
77 

called ‘‘F’’ word, saying that—they didn’t say it quite this way, but 

effectively they said, if it’s used as an adjective, a descriptive term 

that stops short of other terms they described, that it would be all 

right, it does not violate the decency standards and is not considered, quote, ‘‘obscene,’’ unquote. 

I read that, and I was—I thought to myself, you know, I understand we have these issues with respect to cable, especially the 

basic tier of cable, which—you know, I mean, the basic tier is what 

you have to get when you buy cable, and there are—I think all of 

you have also raised this issue, that you have these differences between broadcast and cable, but they kind of fuse together when 

over 80 percent of the households have cable now. But when I read 

of the ruling, I thought, I don’t understand how they can reach that 

ruling. Isn’t there just some basic understanding that the use of 

that word on broadcast television is just ‘‘wrong,’’ quote/unquote, 

just—you know, no way to describe it, just flat wrong? 

Chairman POWELL. We are going to rule on this, but I’m not 

afraid to say that—and I said publicly that I think the decision is 

wrong. But I do feel some obligation to explain what I think happened. The word is protected speech. It’s not an acceptable word, 

but it is one that the Commission looks to the context. I think a 

part of the decision in the bureau’s judgment was not so much— 

I think—the garbage about adverbs and adjectives is unfortunate, 

but I think the other aspect of their opinion was that it’s a fleeting 

exclamation, and Commission precedent was that when somebody 

blurts out that on TV, there has been a long record of not finding 

that to be indecent. But I think many Commissioners here have 

noted that there are other aspects of this statute. For example, profanity is also forbidden under the statutory provision, and I don’t 

think anybody would argue the word is not profane. 

I think this Commission, who sets the law ultimately for the institution, will look at this and rule quite imminently. I don’t even 

want to begin to say that the adjective/adverbs thing, which just 

smacks in the face, to some people, of common sense, is really the 

basis for a regulatory authority to reach its final decision. And I 

want to assure people, as I’ve said when I’ve been asked in public, 

there is no way whatsoever that that’s a statement, or intends to 

be a statement that the Commission thinks it’s OK to use that kind 

of language during those hours in television. 

Senator DORGAN. Well, Mr. Chairman and Members of the Commission, let me just say that I think there is a role for regulation 

in government. And in regulatory agencies, where regulation is the 

function, I would hope very much that this Commission and others 

would regulate on behalf of what they perceive to be the public interest, and the public interest in this circumstance, if you were to 

hold, let’s say, a dozen hearings across the country, would be a 

public interest shouted by parents all across the country saying 

there is a coarseness, a diminution of standards and language and 

so on, on broadcast properties, that they’re very concerned about. 

And they are not saying that they want censorship, they’re not saying that we want the ‘‘Thought Police’’ running all over America. 

They are saying there needs to be some common sense approaches. 

We used to have a family time on television, for example. Senator 

Hollings and I and many others think it ought to be brought back. 

78 

But I think we—at least speaking for myself, I hope the FCC is 

aggressive on these issues. You know, use the authority you have. 

If you need more, ask us for more and let us debate that. But I 

appreciate the work Senator Brownback has done. We’ve been having hearings—I’ve been on this committee now 12 years and—this 

is my 12th year, and we’ve been having hearings on these issues 

for a long, long time. We started, of course, with violence, which 

is also a significant issue, but—I don’t think any of us suggests this 

is easy, but it is easy for me to read the paper and say—a ruling 

saying the ‘‘F’’ word is all right on broadcast television—it’s easy 

for me to say that’s just—that just defies common sense. So I appreciate your beginning to work to correct that. 

But there’s much more to do, and I hope that, with the leadership of Senator Brownback, Senator McCain, Senator Hollings, myself, and many others, that we can work with you to begin to address these problems in a significant way. 

Thank you, Mr. Chairman. 

Senator BROWNBACK [presiding]. Thank you, Senator Dorgan. 

And I’ll look forward to working with you and some others as I 

think we’ve finally got a head of steam up now—not by our doing, 

but by others and what they have caused—that we’re going to be 

able to move some of these on through the process. 

I want to thank the Commission for being here today. Godspeed 

to you as we really try to move through this process and be cognizant of the Constitution and its requirement. 

The record here will stay open for 15 days, as is required by this 

Committee. Thank you for joining us. 

The hearing’s adjourned. 

[Whereupon, as 12:10 p.m., the hearing was adjourned.] 

(79) 

A P P E N D I X 

PREPARED STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII

Let me first thank the Chairman for holding this hearing and my colleague Senator Hollings who has championed the issue of protecting children from violent programming on television for many years, a legislative effort I am proud to support. 

In my view, serious action to stem the tide of indecency and violence is long over 

due. The coarsening of the material we see and hear across media outlets has raised 

the Nation’s consciousness and the recent stunt at the Super Bowl halftime show 

was merely the final straw. Many among us have been sounding the warning bell 

for some time. Now the citizenry has also taken up the call. In just five short days 

after the Super Bowl, the FCC reported receiving over 200,000 complaints. 

Unfortunately, we are not here to address a one-time event. The trend across 

radio, television, cable and satellite has been to increase indecent and violent programming in search of higher ratings and more advertising dollars. Commissioner 

Copps has called this trend a ‘‘race to the bottom.’’ This race has resulted in increasingly debased material finding its way into our homes and reaching our children as 

companies compete with each other for new ways to push the legal and social limits 

with no end in sight. It is time for all media companies to respond to the local communities that they serve and not just to the almighty dollar. 

While this race to the bottom has heated up, the FCC has been inundated with 

indecency complaints. According to the New York Times, last year the FCC received 

approximately 240,000 complaints concerning 375 radio and television programs. 

Meanwhile, the FCC’s enforcement of its indecency rules has been woefully inadequate. In 2003, the FCC issued a total of three fines against radio stations and in 

the last three decades has issued only one sanction against any television station 

in the fifty states. The media companies have sought to test the FCC’s resolve and 

found it missing in action. By failing to use all of the enforcement muscle at its disposal, even against egregious violations and repeat offenders, the FCC has given 

broadcasters license to serve the 18 to 34 demographic rather than the public interest. 

Television can be a powerful influence in developing value systems and shaping 

behavior—for good or for ill. On average, American children spend more time watching television than they do in school. By the time a child reaches 18, he will have 

seen 16,000 simulated murders and 200,000 acts of violence. Despite the findings 

of study after study that viewing violence poses harmful risks to children, we have 

done nothing to limit the amount of violent programming on television. Looking 

around the world, Canada, the United Kingdom, France, Germany, Australia and 

many other countries comprehensively address both indecency and violence in their 

laws and through industry commitments to codes of conduct and rating systems. 

Meanwhile in the U.S., some media companies refuse even to use effective ratings 

systems denying parents the necessary tools to protect their children from harmful 

programming. 

Last year, this Committee favorably reported legislation to increase the FCC’s enforcement of its indecency laws (The FCC Reauthorization Act of 2003, S. 1264). We 

also have before us the ‘‘Children’s Protection from Violent Programming Act,’’ 

which I hope we will take up in the near future. With the proper tools and vigorous 

enforcement, we can greatly diminish the harmful effects of television on our children. 

I look forward to the testimony from the distinguished panel. Thank you, Mr. 

Chairman. 

Æ