Members will hear testimony on the public interest obligations of local broadcasters and the role of broadcasters in the delivery of local news and public affairs programming. Senator McCain will preside. Following is a tentative witness list (not necessarily in order of appearance):
The Honorable John McCain
· Today, the Committee meets to examine the much debated “public interest” standard set forth in the Communications Act of 1934. For almost 70 years, academics, Federal Communications Commission (FCC) Commissioners, courts, and legislators have discussed the meaning of the phrase “public interest, convenience, and necessity.” It is mentioned almost 100 times in the Communications Act in one form or another, but never defined.
· Broadcasters are the trustees of the public’s airways, and in return, the government asks, and the statute requires, that broadcasters serve the “public interest, convenience, and necessity.” Critics, including several recent and former FCC Commissioners, have charged that the “public interest” mandate is vague, providing neither guidance nor constraint on the agency’s regulatory and licensing actions. Current FCC Chairman Michael Powell has stated, “[t]he lack of guidance leaves those governed by the standard at a loss as to how to structure their conduct to be compliant. And I dare say, it invites mischief by regulators and special interests to advance parochial interests under the guise of public interest.”
· This Committee has spent considerable time examining and debating the role of ownership limitations to achieve public interest goals. These issues will continue to be debated. Today’s hearing is to consider whether Congress should use other means to achieve these goals, such as putting “teeth” in the public interest standard.
· We will discuss the role that locally originated programming should play in determining whether a broadcaster is serving the “public interest.” Previously, the Commission’s rules included local programming mandates for radio and TV. These requirements were removed in the early 1980s because the Commission found that during the short time the programming mandates were in place, commercial television broadcasters exceeded the mandates in every program category, thereby making the mandates unnecessary. Recently, some legislators have discussed a return of local programming mandates for broadcasters.
· Since 1996, the radio industry has experienced dramatic consolidation. Multiple witnesses before this Committee have bemoaned the negative effects they claim consolidation has had on localism. In January 2000, the FCC sought to promote the use of radio to provide local content by creating a new class of radio stations – low power FM radio services. Despite being supported by state and local governments, community organizations, musicians, religious groups, and students, low power FM was severely curtailed by a rider added to an Appropriations bill late in 2000 at the behest of the powerful broadcast lobby.
· Broadcasters masqueraded their concern about competition from these new stations in claims that low power FM would cause them interference. Late last month, an independent study stripped the broadcasters of this disguise by concluding that these stations would cause virtually no interference under the FCC’s original rules. While it may be too late to turn back the clock on the radio consolidation that has occurred, we should take another look at low power FM as a means of providing the public with a locally-oriented alternative to huge national radio networks.
· On today's second panel, we will hear from Dean Kaplan about the disturbing dearth of coverage of political campaigns by broadcasters. Next week, I will be introducing a bill similar to one I introduced in the 107th Congress that would establish minimum requirements for issue-centered or candidate-centered programming by broadcasters, and would also provide candidates and national committees of political parties with vouchers that they may use for political advertisements. The purpose of the legislation is to increase the flow of political information in broadcast media and to reduce the cost to candidates of reaching voters. Our democracy is stronger when a candidate's success is achieved by ideas, and not by dollars.
· I appreciate our witnesses for joining us today, and I look forward to hearing your views.
Witness Panel 2
Mr. Dave Davis
Good Morning Chairman McCain, Senator Hollings and members of the Committee. Thank you for the opportunity to address your committee. My name is Dave Davis. I am the President and General Manager of WPVI, Channel 6, in Philadelphia, and I am here to represent the thousands of dedicated local broadcasters at WPVI and the other ABC Owned TV Stations. The ABC Owned stations are industry leaders in local news and community service. Anyone who tells you that an ABC Owned station is not committed to local service is not speaking the truth. Our commitment to localism is NOT the result of government regulation. We strive to be the most locally relevant station because we believe that is the surest path to commercial success. A station that is #1 in local news and community service will almost always rank among the most commercially successful stations in the market. WPVI was first licensed in 1947 to Walter Annenberg, whose family owned the Philadelphia Inquirer, among other media properties. In 1953, we became the first affiliate of the ABC network. In 1970, the station was sold to Capital Cities Communications, which grew to buy ABC in 1985, and in 1995, The Walt Disney Company bought ABC. Even as the names on the license have changed, our operating philosophy through the years has stayed the same. We try very hard every day to be the best possible community television station for our viewers. That’s a tall order, because there are 2-point-8 million television homes within our Nielsen-designated market. Besides Philadelphia, we cover seven other counties in southeastern Pennsylvania, the southern half of New Jersey, and the state of Delaware. We have a saying at the station that acts as our guide - “take care of the viewers, and everything else will take care of itself”. Let me explain how we try to do that. We try to provide the right combination of news, information, and entertainment programming. If you have a TV set with a rabbit ear antenna, you can sit there and watch Channel 6 twenty-four hours a day, seven days a week, and enjoy the most expensive programming in the television industry - for free. Our most important priority is news. We produce more than thirty hours per week of live, local news. More than half of our employees work in the news department, and many of the rest of us work to support the news programs. Our local news is supplemented by the ABC Network that provides more than thirty hours per week of national and world news. So during a normal broadcast day, on average, approximately half of our time is devoted to news. Although we have won numerous awards from industry peers, our most important judges are the viewers, and we are proud of the fact that they have made Channel 6 the leading source for news in our tri-state region, reaching more than three million people in a normal week. Of course, most weeks in the news business are not normal, so we frequently program news outside its normal time periods. Everyone at the station knows if there is an emergency or major event -anything that we think our viewers need to know now- we tell them. We will pre-empt the most popular syndicated or network programs to inform our viewers when we feel it is necessary, and those decisions are made at the station level, either by me or one of our department heads - NOT by anyone at the ABC Network. We have produced hours of continuous, often commercial-free news programming during weather emergencies, natural or man-made disasters, major elections, and times of civic celebration. In addition to news, we produce significant local programming from our public affairs department. We are one of the few stations in the country to locally program the prime access time period every Saturday, instead of using reruns of syndicated programs. Our viewers enjoy a half-hour magazine show- “Prime Time”- that highlights achievements of local people in their schools, communities or businesses. That’s followed by “Visions”, a half-hour program designed to focus on issues important to the many minority communities in our region. Other weekly programs include “Perspective New Jersey” and “Perspective Delaware”, interview shows with newsmakers in those states, produced at our Trenton and Wilmington news bureaus. In addition to news personnel, we maintain studios at those sites to better serve those areas. We also staff a news bureau at the Jersey shore. We produce weekly, monthly, and quarterly programs aimed at young people and their parents. We just finished our annual “Best of the Class” program, where we feature three hundred of the best high school students in our region in an hour-long prime access program, then during the month of June, we produce and air one-minute vignettes of every student. Of course, we let the proud parents know when their kids will be on Channel 6. We produce the longest running Hispanic-themed show in the country- “Puerto Rican Panorama” has been on Channel 6 for 33 years. We produce a weekly Catholic mass on Sunday mornings, and substitute specials from other religions during their holiday periods. Later on Sunday morning, we air an hour-long live, local interview show to expand on major stories of the week, and take phone calls from viewers. We also have “Inside Story”, a weekly panel of local opinion leaders giving their take on current events. We are proud of the fact that Channel 6 is known as the place for local political debates. In the most recent election cycle, we produced and aired hour-long, commercial free debates for both the primary and general election for Pennsylvania governor and New Jersey Senate. In 2000, we held debates for New Jersey governor and statewide races in Delaware, and in the last Philadelphia mayor’s race, we hosted four hour-long debates. For most of our debates, we partner with groups like the League of Women Voters, the NAACP, and the Chamber of Commerce. We have also hosted them at places like the College of New Jersey, Drexel University, and the University of Pennsylvania to give students more of an opportunity to see these debates in person. And like everything else we do, our debates are designed to attract viewers. We promote and air them in high-visibility time periods, like prime access. Right now we are working on two debates for the upcoming Philadelphia mayor’s race. We also work with the Annenberg Public Policy Center and School for Communication at the University of Pennsylvania, both as a partner for political debates, and as a source for improving the quality of political coverage at the local level. A letter with more details from its director, Kathleen Hall Jamieson is attached to my testimony. If there is a big event in our region, we want to be part of it. We just finished six hours of live programming around Philadelphia’s Fourth of July celebration, starting with the Liberty Medal ceremony in the morning, and the parade, concert, and fireworks in the evening. This is something we do every year. This year we also televised the opening of the National Constitution Center, including a prime time special on July 3rd to preview the museum for our viewers. The month before, we produced six hours of live coverage of the big pro bike race that circles Philadelphia. Also in June, we feature the non-profit Philadelphia Zoo in a half-hour program to highlight its attractions. In March, we previewed the annual Philadelphia Flower Show in an hour prime access special, and we are now preparing to produce coverage of the Marian Anderson award ceremony in November. And we do love a parade. One of our largest productions each year is the city’s Thanksgiving Day Parade, the oldest in the country. It started out as the Gimbel’s parade, but when that department store went out of business in 1987, Channel 6 stepped in to produce the parade. We actually have a parade office at the station, because it is a year-round job to bring in the bands, floats, balloons, and other attractions in the parade. We also broadcast the annual Puerto Rican Day parade, the Pulaski Day parade, the St. Patrick’s Day parade, and the Columbus Day parade, each live for two hours, usually at the expense of pre-empting network programming. In addition to special programs, there are other station efforts during the year to partner with non-profit organizations. We produce a fire safety campaign every January to educate viewers, and with the cooperation of local fire departments, Channel 6 has given away more than 100,000 smoke detectors and 50,000 batteries. Philadelphia Fire Commissioner Harold Hairston gives us credit for helping to cut the city’s fire death and injury toll during the program’s ten-year history. With the local Boy Scouts, we operate the largest single food drive every year for the Philadelphia Food Bank. With the Girl Scouts, we collect more than 40,000 items for infants and new mothers in our annual Baby Bundles campaign. With the American Cancer Society, we help raise awareness and funding for breast cancer research. In the unlikely event that we would neglect any of our commitment to our local communities, we have a built-in safeguard. For more than thirty years, Channel 6 has maintained a Community Advisory Board, made up of about ten community members and leaders, representing different ethnic groups and geographical areas. They are independently elected for several year terms, and meet on a monthly basis to discuss station programming and employment issues. They share those discussions with the department heads, and me and we value their input. So that is a glimpse of how we operate WPVI-TV. But I also represent today the other nine ABC Owned Television Stations and from them you would hear the same speech. Even though we have no group program director, no group news director, no shared theme music, no shared technical hub- we do have a similar operating formula. Do what is in the best interest of your local communities, and the company will back you up. All of our stations invest heavily in local news and local programming. That IS our core operating philosophy. Attached to my testimony are typical and illustrative examples of the outstanding local service rendered by each of the ABC Owned stations. Let me mention a few highlights. KTRK presents the 4th of July celebration in Houston, does the rodeo parade, and carries a large commitment of public affairs programming. KFSN in Fresno just pre-empted prime access for a one-hour town hall meeting on air quality in the Central Valley of California. Maybe the best example of what it means to be an ABC owned station comes from the two stations we most recently purchased, WTVG in Toledo, and WJRT in Flint. On its first day as an ABC owned station, WTVG bought more than a million dollars worth of additional newsgathering equipment, and within a year, added twelve hours of local news per week. Let me say that again, AFTER ABC bought this local Toledo station; the station ADDED 12 hours of additional local news each week. Our manager there pre-empts the ABC network to carry the Toledo Mud Hens baseball game on opening day, Bowling Green football, and political debates. And after ABC bought WJRT in Flint, that station added similar amounts of local news, and invested more than seven million dollars in a new broadcast facility in a redevelopment area of Flint. So now the question is- why do ABC owned stations have such a strong commitment to local service? We certainly take seriously the service to community standard in our license, but I think you would agree that our record of outstanding local community service goes way beyond legal license requirements. Pardon me, but forget the government. We have to answer to our viewers. And we have to do that every day. When they have more than a hundred channels to choose from, and we want them to choose us, we think the best way to do that is to provide the best possible service. We don’t get any subscriber fees, or have a dual revenue stream- one hundred percent of our revenue comes from advertising that is totally dependent upon viewership. If people don’t watch, we don’t get paid, and if you aren’t the best local station, people don’t watch. It’s that simple. Mr. Chairman, I have been going to work at a local television station every day for the last 26 years, assigned to a lot of different jobs. Sometimes I worked at a station that was co-owned with a network and sometimes I didn’t. The feeling towards my job never changed. The most enjoyment came from knowing that you were helping to supply something of value to lots of people- valuable news information, positive public service programming, a chance for local companies to market their products, and just good, solid, quality entertainment, available free to all the homes in our community. You are going to make decisions on media ownership in this country based on your collective wisdom, and I respect that. I am only asking you to please not base any decision on the false premise that Network Owned stations like Channel 6 in Philadelphia do not do their best to serve their local community. Thank you again for the opportunity to speak to you today, and I would be glad to try and answer any of your questions.
Mr. Dean Martin Kaplan
Thank you, Mr. Chairman, for the invitation to testify. The question I want to try to answer today is this: Under current legislation and current FCC regulations, what kind of job are local television stations doing in fulfilling their public interest obligations? More than two centuries ago, Thomas Jefferson said that the strength of our democracy would depend on how well-informed the American electorate is. Today, most Americans say they get most of their information from local television news. Is local tv news actually telling voters what they need to know? How well are local broadcasters living up to the public interest promises they made in order to get their licenses? My answer to these questions is based on academic research. My academic background includes a summa cum laude from Harvard College, a graduate degree from Cambridge University, and a Ph.D. from Stanford. I ‘m now associate dean of the Annenberg School at the University of Southern California, one of our nation’s leading schools of communication and journalism. But I have experience in three other realms that also bear on my testimony. My professional background includes eight years here in Washington, where I was chief speechwriter to Vice President Walter F. Mondale, and also his deputy presidential campaign manager. So I know something from the candidate’s point of view about the challenges of earning media coverage on television. I’ve also had stints in print and broadcast journalism. I’ve been a columnist, feature writer, and editor at The Washington Star; a regular contributor to All Things Considered and Marketplace on public radio; and a commentator on the CBS Morning News. My career also includes the entertainment industry. For twelve years I worked at the Walt Disney Studios, both as a senior motion picture executive, and as a screenwriter and producer. I believe that entertainment -- the need to grab and hold audiences -- has come to dominate every other realm of contemporary American life, for better and for worse, from news and politics to education and religion. Studying the impact of entertainment on society is the mission of the Annenberg School’s Norman Lear Center, which I direct. So my comments this morning, while they report on empirical research I’ve done, also reflect some first-hand experience in the trenches of politics, journalism, and show business. Since the Radio Act of 1927, the possession of a broadcast license has been a contract between media owners and the public. In order to use the electromagnetic spectrum, which belongs to the public, the broadcaster promises to serve the public interest. From then to now, serving the public interest does not mean maximizing profit, however happy that may make owners and shareholders. Nor does it mean sponsoring charity benefits or street fairs, however happy that may make communities. Serving the public interest, as the Supreme Court said in Red Lion v. FCC, means that “[t]he broadcaster must give adequate coverage to public issues.” Giving adequate coverage to public issues is what media owners promise the public to do in exchange for getting their licenses. Since 1998, my colleague Dr. Matthew Hale and I have been investigating what kind of attention broadcasters have been paying to public issues. In particular, we’ve been looking at the quantity and quality of campaign and election coverage on local television. This research is not a snap to do. Broadcasters are not required to keep tapes of their news programming or time logs of what they cover. Under current FCC regulations, all that stations must do is maintain in their offices “a list of programs that have provided their most significant treatment of community issues.” These lists are next to useless for empirical research. The FCC’s single study of “The Measurement of Local Television News and Public Affairs Programs” under its current ownership rulemaking illustrates this inadequacy. FCC researchers watched not one minute of local news or public affairs programming. Instead, they simply added up the raw number of minutes that stations labeled news or public affairs on their broadcast schedules. No matter that anyone who has actually watched local news knows how much of it is given over to empty happy talk, cross-promotion of network entertainment, and coverage of serial murders half a continent away. No matter that much public affairs programming airs not when ratings are high, but when only insomniacs are watching. As a proxy for quality, FCC researchers counted the number of awards given by members of an industry trade group, the Radio and Television News Directors Association, to itself, and by a journalism school (the DuPont Silver Batons at Columbia). If more industry votes go to network owned-and-operated stations than to other stations, does that really make the o&o’s better? Three-quarters of the Silver Batons the FCC counted went to individual reporters and producers for individual pieces, not to stations, and all the awards to stations were given for specific stories. If the DuPont jurors aren’t pretending to compare the quality of one station’s total news programming with another, why should the FCC? Yet this is the study that the FCC Chairman frequently cites as justification for lifting the ownership caps. In fact the only way to conduct scientific research on the content of local news and public affairs coverage is to get people in each market being studied to record that programming, or to purchase it from commercial vendors, and then to have analysts log and code every single broadcast. That’s what we’ve been doing. This is the third nationwide study we have conducted. In 2000, we studied local news campaign coverage both in the primaries and in the general election. That research, funded by the Ford Foundation, came in the wake of the recommendation of the Presidential Advisory Commission on the Public Interest Obligations of Digital Television Broadcasters, co-chaired by CBS president Leslie Moonves and American Enterprise Institute resident scholar Norm Ornstein. Their proposal was a voluntary five minutes of candidate-centered discourse on each station, on each night between 5 pm and 11:30 pm, for the last 30 days before each election. To see how that voluntary standard was working on selected stations, we taped all news coverage between those times in the month before Election Day. We counted candidate-centered discourse under a generous definition, which included issue-centered stories, and we counted all candidates for all offices at every level, dogcatcher to president. We did the study twice – in the primaries, and in the general election. In the primaries, we studied 19 top-rated stations in 11 markets around the country. Two groups of stations emerged. Typical stations – 16 of the 19 – aired an average of just 39 seconds of candidate discourse a night. Only three stations aired over 3 minutes a night, and two of them included New Hampshire in their markets. (The study can be found at http://www.learcenter.org/pdf/tvnews.pdf.) During the 2000 general election, we expanded our sample to include 74 stations in 58 markets. Twenty-three of those stations had made a public commitment to the voluntary five-minute standard; we found that they aired an average of 2 minutes and 17 seconds of candidate discourse a night. The remaining 51 stations, which had been silent on the voluntary standard, aired an average of 45 seconds of candidate discourse a night. All candidates, all races, all evening, all month: 45 seconds a night. (The study can be found at http://www.learcenter.org/pdf/campaignnews.PDF.) By 2002, the five-minute-a-night voluntary goal had all but disappeared from discussion. The public interest obligation has today essentially been entrusted to an unregulated and unmonitored market. So in this most recent campaign, we set out to learn how much and what kind of election news most Americans were actually exposed to in that marketplace. Our research was funded by the Pew Charitable Trusts, and done in collaboration with Professor Ken Goldstein of the University of Wisconsin-Madison. (Our report can be found at www.localnewsarchive.org/pdf/LocalTV2002.pdf.) We recorded and analyzed more than 10,000 top-rated early- and late-evening half-hour news broadcasts on 122 stations in the top 50 U.S. media markets over the seven weeks leading up to Election Day. This representative national sample is the most ambitious quantitative study of local news coverage of politics ever undertaken. Not only were the stories logged and coded; those video clips have also been archived online on a unique searchable database, at www.localnewsarchive.org, which is now available to any registered user. Here is some of what we found in 2002. This is the how well the marketplace is actually doing at fulfilling the public interest obligation of broadcasters: · Only 44 percent of the more than 10,000 broadcasts we studied contained any campaign coverage at all. In other words, almost six out of ten top-rated news broadcasts contained no campaign coverage whatsoever. · Most of the campaign stories that did air were broadcast during the last two weeks of the campaign. · Nearly half of the stories that aired were about horserace or strategy, and not about issues. · The average campaign story was less than 90 seconds. · Fewer than three out of ten campaign stories that aired included candidates speaking, and when they did speak, the average candidate sound bite was 12 seconds long. · Even when counting U.S. House races as local elections, only 14 percent of all the campaign stories in our sample focused on local races. Races for the state legislature only accounted for three percent of the stories, and stories focused on regional, county or city offices made up only four percent of the stories. · Campaign ads outnumbered campaign stories by nearly four to one. While little more than four out of ten of the broadcasts analyzed contained at least one campaign news story, eight out of ten of those broadcasts contained at least one campaign ad. Just seven percent of the broadcasts analyzed contained three or more campaign news stories, while almost half of these same broadcasts contained three or more campaign ads. So what kind of job are local stations doing to fulfill the public interest promises they made when they applied for their licenses? If you look at the campaign coverage they provided in 2002, the answer is grim. While there are some encouraging exceptions, most local television stations largely ignored the 2002 campaign on most of their top-rated broadcasts. At the same time, those stations took in a record-breaking billion dollars of political advertising revenue. It is striking that while general managers and news directors often fret that covering politics may be an audience turnoff, they have no compunctions about barraging that same audience with political ads. Among the 122 stations we studied in 2002, there is of course a wide range of performance. Some stations aired a campaign story on less than 20 percent of their top-rated half-hours; other stations had campaign stories on more than 70 percent of those broadcasts. Some stations spent only 1 percent of this most-watched news time on campaigns; other stations spent as much as 9 percent. On some stations, an average campaign story was well over two minutes long; on other stations, it was just 40 seconds. Ten stations covered no local races at all during their top-rated half-hours; five stations devoted more than half their political coverage to local races. One station’s average candidate sound bites were over half a minute long; another station’s sound bites averaged just 4 seconds. One station ran no stories about issues; on another station, 75 percent of the campaign stories were about issues or adwatches. What explains disparities like these? They can’t be attributed to differing local appetites for the coverage of public issues, because these station differences can exist side by side in the same communities. In Greenville, South Carolina, for example, WSPA, a Media General station, aired 146 campaign stories on their top-rated early and late half hours of news during the seven weeks before Election Day, at the top end of the country in our sample, while WLOS, a Sinclair station, aired 40. The average candidate sound bite on the Sinclair station in Greenville was 7 seconds long, which put it in the bottom 10 percent of our national sample, while the Media General station candidate sound bite averaged 36 seconds, at the top of the country. Does ownership make a difference in campaign coverage? Our 122-station sample wasn’t designed to study that. But our sample does include 45 stations owned by large owners (with audience reach above 20 percent, based on percentage of U.S. household coverage as calculated by the FCC, discounting UHF coverage by 50 percent), 54 owned by mid-sized owners (audience reach between 20 percent and 6.2 percent), and 23 by small owners (audience reach below 6.2 percent). It turns out that the large owners in our study carried a lower percentage of local campaign news than the national average, while the small and mid-sized owners carried a higher percentage of local stories. The same pattern appears in individual media markets: in 16 of the 22 markets where we can make the comparison, stations with small or mid-sized owners provided more coverage of local elections than stations with large owners. If a national study designed to correlate ownership with localism came up with similar numbers, it would have inescapable implications for the regulations now in play. What causes some stations to excel? My school is proud to award the USC Annenberg Walter Cronkite Awards for Excellence in Television Political Coverage, and the journalists and stations that win it prove what good work can be done. In our study, some stations, even in the absence of contested political races, nevertheless did a top-tier job of offering campaign coverage to their viewers. A commitment by ownership-group leaders to fulfill their public interest obligations can count for a lot, as demonstrated by the ten Hearst-Argyle stations in our study, which were impressively ahead of the pack. The priorities of individual station managers and news directors can also make a difference, as can making the financial commitment of assigning experienced producers and talented correspondents to cover a political beat. But the sad truth is that across the country, the murderous pressure for ratings has largely trumped every other goal. The conventional wisdom among general managers and news directors is that politics is ratings poison. This belief – that public issues are boring, that viewers would rather watch car chases than candidates – is promoted by the television news consulting industry whose advice dominates local programming decisions. In my view, those consultants are selling dangerous nonsense. The truth is that good reporters working for good managers can make politics and public affairs just as compelling to audiences as news about celebrity divorces or teasers for prime-time voyeurism. Let’s not blame the audience for what appears on local television. Programmers aren’t just delivering what people want. They are accomplices in manufacturing that desire. Americans aren’t just consumers; we are also citizens. Broadcasters have more than an obligation to make money. They have an obligation to inform us. That’s what they promise in order to get their licenses. Today, the enforcement of that promise is alarmingly inadequate. Right now the ability of the American people to get the information they need, from the sources they turn to most, about the most important choices they make together as citizens: today that ability depends on a marketing culture that too often puts sensationalism ahead of substance, fear ahead of reason, and dollars ahead of democracy. Surely Americans deserve better from the industry they’ve entrusted with their airwaves, and from the agency they’ve entrusted with monitoring it. Thank you very much. #
Mr. Robert Corn-Revere
Mr. Chairman, and Members of the Committee. Thank you for inviting me to testify about the public interest obligations of local broadcasters and the role of broadcasters in the delivery of local news and public affairs programming. Specifically, I have been asked to focus my testimony on the history and constitutionality of the broadcast public interest standard as it applies to programming mandates. Accordingly, my written testimony concentrates on the history of the FCC’s public interest standard and its relationship to First Amendment concerns. I. BROADCAST REGULATION AND THE PUBLIC INTEREST A. The Elusive Public Interest Standard The public interest standard is the “touchstone of authority” for the Federal Communications Commission (“FCC”).’ The standard was first adopted as part of the Radio Act of 1927, which created the Federal Radio Commission (“FRC”). Recognizing the importance of the new medium of communications, the Washington Post described the Radio Act as the “most important legislation of the session.” The Act directed the FRC to perform various tasks, including classifying radio stations, describing the type of service to be provided, assigning frequencies, making rules to prevent interference, establishing the power and location of transmitters and establishing coverage areas in a way that maximized the public good. But this did not address the larger question of what constitutes “the public good.” The FRC took the position that the Supreme Court eventually would define the public interest case by case. Nevertheless, it outlined the primary attributes of the public interest in its policy statements and licensing decisions. Congress borrowed the expression “public interest, convenience or necessity” from the field of railroad regulation, and its use in the context of radio regulation was almost accidental. The terms had been used previously in the Transportation Act of 1920. Senator Clarence C. Dill, who drafted the Communications Act, later recounted that “[a] young man on the committee staff had worked at the Interstate Commerce Committee for several years . . . and he said, ‘Well, how about “public interest, convenience and necessity”? That’s what we used there.’ That sounded pretty good, so we decided we would use it, too.” By shifting the context of the regulatory mandate from railroads to radio, however, its meaning became less certain. Judge Henry Friendly wrote in his classic study The Federal Administrative Agencies that the use of the “public convenience and necessity” standard “conveyed a fair degree of meaning” in the Transportation Act “when the issue was whether new or duplicating railroad construction should ‘be authorized or an existing line abandoned.” However, the standard “was almost drained of meaning” in the context of radio regulation “where the issue was almost never the need for broadcasting service but rather who should render it.” The Communications Act of 1934 uses various formulations of the “public interest” language, and like the Radio Act before it, does not define the terms. The absence of specific statutory direction has been a distinguishing characteristic of communications regulation. As one contemporary observer wrote regarding the standard as employed in the Radio Act, “‘[p]ublic interest, convenience or necessity’ means about as little as any phrase that the drafters of the Act could have used . . . .” The Communications Act did not improve the situation. Professor of law (and former FCC Commissioner) Glen O. Robinson has noted the frequent criticism that the public interest standard “is vague to the point of vacuousness, providing neither guidance nor constraint on the agency’s action,” adding that “[w]hat the act itself does not define, the legislative history does not illuminate.” Accordingly, “[b]ecause the act did not define what the public interest meant,” former FCC Chairman Newton Minow has written, “Congress, the courts, and the FCC have spent sixty frustrating years struggling to figure it out.” Two prominent communications lawyers have suggested that “[p]erhaps no single area of communications policy has generated as much scholarly discourse, judicial analysis, and political debate over the course of the last 70 years as has that simple directive to regulate in ‘the public interest.’” It has also generated conflict. Since broadcast regulation began, the meaning of the public interest has been the focal point for the clash of values at the FCC, and at the FRC before it. But there is another eye-of-the-beholder problem embedded in this regulatory puzzle. Not only does the public interest standard provide scant guidance for selecting among particular policy options in a given instance, there is robust debate as to whether it is a “good” standard. At one end of the spectrum, it has been described as the “intellectual knife of collectivism’s sacrificial guillotine.” At the other, it has been said that all of the FCC’s actions would be “without meaning” in the absence of the public interest standard.” As a consequence, the FCC has been “a storm center of criticism from the left and the right.” One thing that all can agree on, however, is that the meaning of the “public interest’ has changed over time. The nature of the public interest has fluctuated in part because of the, political outlook of those who administer the law. “At various times in its history the Federal Communications Commission has taken a, broad view of its power and responsibility to further what it deemed to be in the public interest” while at others it has promoted “rapid moves toward deregulation.” As former FCC Commissioner Ervin Duggan put it, “successive regimes at the FCC have oscillated wildly between enthusiasm for the public interest standard and distaste for it.” While this has led some to criticize the FCC for being overly political, Judge E. Barrett Prettyman of the United States Court of Appeals for the District of Columbia Circuit has described it as being “political in the high sense of that abused term.” Still, the inherently political nature of the regulatory mandate creates special tensions since “the `public interest’ standard necessarily invites reference to First Amendment principles.” The invitation to apply First Amendment principles, however, has done little to clarify the statutory mandate or reduce the Commission’s political mood swings. From the beginning, the public interest standard permitted the government to regulate broadcast content to an undefined degree while simultaneously prohibiting censorship. Section 29 of the Radio Act, and Section 326 of the Communications Act, specifically prohibited “giv[ing] the licensing authority the power of censorship over the radio communications. . . .” At the same time, the FRC promulgated as an early statement of policy that programming would be considered in license renewal decisions, that stations should meet the “tastes, needs and desires of substantial groups among the listening public” as opposed to “propaganda” and that operators that failed to meet the Commission’s expectations could lose their licenses. The Commission and the courts resolved this evident paradox by concluding that the “application of the regulatory power of Congress in a field within the scope of its legislative authority” is not “a denial of freedom of speech.” Similarly, comparing the FCC to a “traffic cop,” the Supreme Court decided that the Act “does not restrict the Commission merely to supervision of the traffic. It puts upon the Commission the burden of determining the composition of that traffic.” What none of the decisions established, however, was how far the cop could go in issuing citations, or whether this power would continue forever. The meaning of the public interest also varies because of the nature of technology. Congress purposefully left the regulatory standard open, with the details to be filled in by the FCC over time because radio was a new and complicated technology. The FCC’s broad powers were based on the assumption that “Congress could neither foresee nor easily comprehend . . . the highly complex and rapidly expanding nature of communications technology.” The Supreme Court described the public interest standard in FCC v. Pottsville Broadcasting Co. as “a supple instrument for the exercise of discretion” that is “as concrete as the complicated factors for judgment in such a field of delegated authority permit.” At various times the underlying focus on technological issues has been made explicit. For example, in 1983 Congress added a new section to the Communications Act establishing “the policy of the United States to encourage the provision of new technologies and services to the public.” The Telecommunications Act of 1996 also placed great emphasis on promoting innovation and technology. Consistent with these statutory goals, the Supreme Court has recognized that “because the broadcast industry is dynamic in terms of technological change[,] solutions adequate a decade ago are not necessarily so now, and those acceptable today may well be outmoded 10 years hence.” Similarly, it had noted in National Broadcasting Co. v. United States that “[i]f time and changing circumstances reveal that the ‘public interest’ is not served by application of the regulations, it must be assumed that the Commission will act in accordance with its statutory obligations.” For all of these reasons, in seeking to apply a general statutory mandate, the Commission has revised its substantive public interest requirements over time. In 1941, for example, the Commission decided that broadcast editorials violated the public interest, only to reconsider that policy eight years later. Similarly, in 1945 the Commission withheld renewal of a radio station license until the station agreed to sell time for paid editorials to the United Auto Workers. Since then, however, the Commission determined that licensees cannot be forced to sell time to a particular group. This more current view of the public interest was upheld by the Supreme Court. B. Regulation of Broadcast Content 1. The Public Interest Standard and the First Amendment Tightrope Broadcasters historically have been subject to various forms of content regulation under the public interest standard of the Communications Act. The Act imposes certain specific requirements, such as those for educational programming as well as general public interest mandates that are unlike regulations that may be applied to the print media. At the same time, Congress recognized that broadcasters “are engaged in a vital and independent form of communicative activity” and conferred upon licensees “‘the widest journalistic freedom consistent with their public [duties].’” For example, Section 326 of the Communications Act prohibits censorship and expressly withholds from government the power to “interfere with the right of free speech by means of radio communication.” This denies to the FCC “the power of censorship” as well as the ability to promulgate any “regulation or condition” that interferes with freedom of speech. These policies “were drawn from the First Amendment itself [and] the ‘public interest’ standard necessarily invites reference to First Amendment principles.” Consequently, the Supreme Court has stressed that “the First Amendment must inform and give shape to the manner in which Congress exercises its regulatory power in this area.” This obvious tension between public interest regulation and traditional First Amendment concepts has been blunted somewhat to the extent the FCC approached broadcast licensees with a certain degree of sensitivity to the competing values at stake. From the beginnings of broadcast regulation, Congress and the FCC (and its predecessor agency, the Federal Radio Commission), appeared to approach the business of regulation with the understanding that constitutional limitations might prevent too great a reliance on specific programming mandates. One of the bills submitted prior to passage of the Radio Act of 1927 included a provision that would have required stations to comply with programming priorities based on subject matter. However, the provision was eliminated because “it was considered to border on censorship.” Similarly, the Federal Radio Commission sought to “chart a course between the need of arriving at a workable concept of the public interest in station operation, on the one hand, and the prohibition laid on it by the First Amendment to the Constitution of the United States . . . on the other.” In 1960 the FCC emphasized that “[i]n considering the extent of the Commission’s authority in the area of programming it is essential [first] to examine the limitations imposed upon it by the First Amendment to the Constitution and Section 326 of the Communications Act.” After an extensive analysis of the meaning of the public interest, the FCC found that the required constitutional and statutory balance barred the government from implementing programming requirements that were too specific. It noted: [S]everal witnesses in this proceeding have advanced persuasive arguments urging us to require licensees to present specific types of programs on the theory that such action would enhance freedom of expression rather than to abridge it. With respect to this proposition we are constrained to point out that the First Amendment forbids governmental interference asserted in aid of free speech, as well as governmental action repressive of it. The protection against abridgment of freedom of speech and press flatly forbids governmental interference, benign or otherwise. The First Amendment while regarding freedom in religion, in speech, in printing and in assembling and petitioning the government for redress of grievances as fundamental and precious to all, seeks only to forbid that Congress should meddle therein. Such considerations led the Commission to conclude that it could not “condition the grant, denial or revocation of a broadcast license upon its own subjective determination of what is or is not a good program.” To do so, the Commission concluded, would “lay a forbidden burden upon the exercise of liberty protected by the Constitution.” In order to maintain a balance between a free competitive broadcast system, on the one-hand, and the requirements of the public interest standard on the other, the Commission found that “as a practical matter, let alone a legal matter, [its role] cannot be one of program dictation or program supervision.” Over the years the FCC has attempted to balance the constitutional imperative of the First Amendment with the public interest aspirations of the Communications Act. It has found that while it may “inquire of licensees what they have done to determine the needs of a community they propose to serve, the Commission may not impose upon them its private notions of what the public ought to hear.” In particular, public interest “standards or guidelines should in no sense constitute a rigid mold for station performance, nor should they be considered as a Commission formula for broadcasts in the public interest.” The Commission emphasized that it did “not intend to guide the licensee along the path of programming on the contrary the licensee must find his own path with the guidance of those whom his signal is to serve. Recognizing this delicate balance, courts have noted that the Commission must “walk a ‘tightrope’” to preserve the First Amendment values written into the Radio Act and its successor, the Communications Act.” The Supreme Court has described this balancing act as “a task of great delicacy and difficulty,” and stressed that “we would [not] hesitate to invoke the Constitution should we determine that the [FCC] has not fulfilled with appropriate sensitivity to the interest of free expression.” “ The Court found that the Communications Act was designed “to maintain-no matter how difficult the task-essentially private broadcast journalism.” For that reason, licensees are to be held “only broadly accountable to public interest standards.” Thus, in Turner Broadcasting System, Inc. v. FCC, the Supreme Court quoted the 1960 En Banc Policy Statement, and reiterated that “although ‘the Commission may inquire of licensees what they have done to determine the needs of the community they propose to serve, the Commission may not impose upon them its private notions of what the public ought to hear.’” Specific program requirements generally are considered the most constitutionally suspect among the requirements imposed by broadcasting regulations. The United States Court of Appeals for the District of Columbia Circuit has noted that the “power to specify material which the public interest requires or forbids to be broadcast . . . carries the seeds of the general authority to censor denied by the Communications Act and the First Amendment alike.” Public interest requirements relating to specific program content create a “high-risk that such rulings will reflect the Commission’s selection among tastes, opinions, and value judgments, rather than a recognizable public interest,” and “must be closely scrutinized lest they carry the Commission too far in the direction of the forbidden censorship.” In those instances in which Congress has adopted affirmative obligations – such as the requirement of Section 312(a)(7) of the Communications Act that broadcast licensees provide “reasonable” access to federal political candidates – it has stressed that the requirement must be implemented “on an individualized basis” and not on the basis of “across-the-board policies. The Commission has never attempted to specify what amount of candidate access is “reasonable” and the Supreme Court’s First Amendment analysis of the law assumed that the broadcaster’s editorial discretion would be accorded appropriate deference. In Turner I, the Supreme Court emphasized “the minimal extent” that the government may influence the programming provided by broadcast stations. The Court noted that “the FCC’s oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered by broadcast stations.” Similarly, the United States Court of Appeals for the District of Columbia Circuit expressly avoided approving “a more active role by the FCC in oversight of programming” on educational stations because it would “threaten to upset the constitutional balance struck in CBS v. DNC.” The challenge facing broadcast content regulation is the need to reconcile public interest mandates with constitutional commands and statutory restrictions. 2. Affirmative Programming Mandates As a general matter, broadcast licensees have a public interest obligation to provide programming that is responsive to the needs of the community of license. To ensure compliance, the FCC requires radio and television broadcasters to file quarterly reports listing the programs that have provided the station’s most significant treatment of community issues during the proceeding three month period. This list must include a brief narrative statement describing what issues were given significant treatment and which programs addressed the particular issues. The report must list the air date, day part, as well as program length and title of the programs. The station’s overall performance in serving the community is evaluated at license renewal time. The FCC previously enforced such programming requirements in a far more detailed way. In its 1960 En Banc Programming Inquiry, for example, the Commission listed 14 categories of programs generally considered necessary to serve the public interest, including programs that provided an opportunity for local self-expression, programs that used local talent, children’s programs, religious programs, educational programs, public affairs programs, editorials, political broadcasts, agricultural programs, news, weather and market reports, sports programs, service to minority groups and (finally) entertainment programming. Although the Commission did not prescribe the transmission of particular programs, noting that the specified categories should not be considered “a rigid mold of fixed formula for station operation,” it nevertheless concluded that the listed programming types, provided in some reasonable mix, provided evidence that a licensee was operating in the public interest. This was enforced through the use of formal ascertainment procedures, which required applicants for broadcast licenses to interview community leaders in 19 specified categories ranging from agriculture to religion. In 1981 the FCC eliminated its rules and policies that required radio stations to keep program logs and conduct ascertainment of community problems, imposing non-entertainment programming requirements and limiting the amount of commercial time. The FCC similarly deregulated television, eliminating ascertainment and other requirements in 1984. The Commission also simplified the renewal process, eliminating the detailed program-related questions that had accompanied the ascertainment process. Generally, the FCC moved away from examining the programming formats chosen by broadcast stations, leaving such decisions to marketplace forces. C. The Prospect for Expanded Public Interest Mandates Whether or not Congress or the FCC at the present time could constitutionally adopt more detailed content requirements under the public interest standard is not an easy question to answer. As a threshold matter, it is difficult to assess the potential constitutionality of content regulations in the absence of a concrete proposal. Although the prevailing standard for broadcast regulation articulated in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) has permitted the government to regulate broadcast content more intensively than other media in the past, the courts have never defined how far this power might extend. Additionally, it has been thirty-four years since the Supreme Court decided Red Lion, a case based on “’the present state of commercially acceptable technology’ as of 1969.” Since then, both Congress and the FCC have found that the media marketplace has undergone vast changes. For example, the legislative history to the Telecommunications Act of 1996 suggested that the historical justifications for the FCC’s regulation of broadcasting require reconsidration. The Senate Report noted that “[c]hanges in technology and consumer preferences have made the 1934 [Communications] Act a historical anachronism.” It explained that “the [Communications] Act was not prepared to handle the growth of cable television” and that “[t]he growth of cable programming has raised questions about the rules that govern broadcasters” among others. The House of Representatives’ legislative findings were even more direct. The House Commerce Committee pointed out that the audio and video marketplace has undergone significant changes over the past 50 years “and the scarcity rationale for government regulation no longer applies.” The FCC has reached similar conclusions over the years. In the mid-1980s, for example, the Commission “found that the ‘scarcity rationale,’ which historically justified content regulation of broadcasting . . . is no longer valid.” Most recently, in complying with the congressional mandate to conduct a biennial review of broadcast regulations, the FCC once again found that the media landscape has been transformed. It concluded that “the modern media marketplace is far different than just a decade ago,” finding that traditional media “have greatly evolved” and “new modes of media have transformed the landscape, providing more choice, greater flexibility, and more control than at any other time in history.” People coming of age in this environment enjoy an “extraordinary level of abundance in today’s media marketplace” and thus “have come to expect immediate and continuous access to news, information, and entertainment.” Of course, if Congress or the FCC chose to adopt new public interest requirements, they would be expected to adopt new legislative or regulatory findings. But any new rules regulating broadcast content would necessarily implicate the First Amendment, and reviewing courts would not be required to defer to the policymakers’ findings. In this context, it is not easy to predict how the Supreme Court might treat new content regulations. It has been a long time since the Court has directly confronted the constitutional status of broadcasting, and where the issue has come up in dictum, its endorsement of Red Lion has been lukewarm at best. In Turner I, for example, the Court rejected the government’s bid to extend the principles of Red Lion to the regulation of cable television. After noting the Commission’s “minimal” authority over broadcast content, the Court pointed out that “the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation, whatever its validity in the cases elaborating it, does not apply in the context of cable television.” Lower court decisions in this area have reached mixed results. The case that provides the strongest support for some type of expanded public interest requirement is Time Warner Entertainment Co. v. FCC, which used a straightforward application of Red Lion to uphold a 1992 Cable Act provision requiring Direct Broadcast Satellite (“DBS”) operators to set aside four to seven percent of their channel capacity for “noncommercial programming of an educational or informational nature.” The panel reasoned that the provision “should be analyzed under the same relaxed standard of scrutiny that the court has applied to the traditional broadcast media.” However, a deadlocked court of appeals denied rehearing in that case, and five judges endorsed a dissenting statement that casts a shadow over the panel’s strong endorsement of Red Lion. The five dissenters pointed out that “[e]ven in its heartland application, Red Lion has been the subject of intense criticism,” noting that the assumptions underlying spectrum scarcity are suspect in light of the scarce nature of all economic goods. Judge Williams noted that the Red Lion Court suggested that the reason for such relaxed treatment would vanish along with the end of scarcity, and pointed out that, even in its nascent state, “[t]he new DBS technology already offers more channel capacity than the cable industry, and far more than traditional broadcasting.” The dissent further reasoned that the DBS set-aside requirement for “educational” or “informational” programming is content-based, and that “as a simple government regulation of content, the DBS requirement would have to fall.” In light of the 5-5 deadlock among the D.C. Circuit judges, the Time Warner case represents more of a hung jury than it does a constitutional mandate for new content regulations. Other cases further suggest that reviewing courts will closely scrutinize any new regulation of broadcast content. In MPAA v. FCC, the D.C. Circuit vacated the Commission’s video description rules. Although the court analyzed only the question of whether the FCC had been given statutory authority to adopt the rules, it explained that it interpreted the Commission’s powers narrowly because any regulation of programming content “invariably raise[s] First Amendment issues.” It expressed no opinion on the constitutional issues, but the thrust of the holding was that the FCC’s general public interest authority over programmung is far less expansive than was previously assumed. The same conclusion follows from the D.C. Circuit’s decision in RTNDA v. FCC, where the court ordered the Commission to repeal the personal attack and political editorial rules. There, the court held that the FCC had the burden to justify rules that “interfere with editorial judgment of professional journalists and entangle the government in day-to-day operations of the media.” Although the court did not decide whether such rules are constitutional or would serve the public interest, it was unwilling to allow the FCC to continue to enforce the content restrictions (that already had been subject to protracted review) while the Commission assessed their validity. Conclusion The First Amendment and the public interest standard require Congress and the FCC to “walk a tightrope” between the enforceable public obligations of broadcast licensees and the Constitution’s command that “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .” That task is made more difficult by rapidly changing technology that alters the assumptions upon which previous theories of regulation were grounded. It is especially problematic since the regulations at issue uniquely apply to only one medium – broadcasting – that is less and less unique in an age of convergence. Accordingly, it would be prudent for policymakers to proceed cautionsly in this area.
Mr. Barry M. Faber
Click here for a PDF version of Mr. Faber's remarks.
Mr. L. Brent Bozell IIIPresidentParents Television Counsel
Chairman McCain, Senator Hollings and Members of the Committee, I appreciate the opportunity to appear before you to testify on this important issue. Today I represent the Parents Television Council’s 800,000 members, and untold millions of parents who, like me, are disgusted, revolted, fed up, horrified -- I don’t know how to underscore this enough -- by the raw sewage, ultra violence, graphic sex, and raunchy language that is flooding into our living rooms night and day by giant media corporations with no concerns whatsoever for community standards. That’s why I strongly support the effort to return the media ownership cap to 35%. Citizens not only have a right but also a need to have a voice in their local communities. In 1989 the Big Three networks—NBC, ABC, and CBS—held a 17% ownership share of TV programming. By 2002 it had increased to 48%. Now add Fox, AOL/Time Warner, and AT&T/Liberty, and these six megacorporations today control two-thirds of all viewers on television. Let’s be clear here: further deregulation will give them even further control of the airwaves. And the losers are the local communities whose standards of decency are being ignored, completely ignored, by these media giants. There will be the same old tired voices that will say this is about competition. Lets be clear on this - - there is NO competition here. You can’t compete against multi-billion dollar oligopolies. There are many reasons not to give these six megacorporations even more control of our airwaves, one of them being their utter lack of attentiveness to community standards. In the last year the PTC has sent out over 1.5 million community standard audits, of which over 128,000 have been returned. The numbers speak for themselves: 94.2% believe there shouldn’t be graphic violence during children’s viewing time, 94.3% are against descriptions of sexual encounters, and 94.6% are opposed to strong sexual language during children’s viewing times. Guess what? All these things can now be found on television, courtesy of these six megacorporations. They could care less who they offend and now want even more control of the airwaves where they can offend even more. This is a first amendment issue. It’s about the right of citizens to speak up about what they want coming across the broadcast airwaves they own, in their local communities, where their voice should count the most, without being silenced by corporate executives in New York and Los Angeles. This is how the networks feel about local community standards. In a PTC survey of network owned-and-operated affiliates, not one told us it had willingly preempted network programming on the basis of community standards. Some told us that because of network contractual obligations, they could not preempt network programming. In fact, some Fox and CBS affiliates said they weren’t allowed to see advance copies of reality programming. When NBC aired Maxim’s Top 100, 26 independent NBC affiliates chose not to telecast the program that many believed bordered on the pornographic and which was certainly not in keeping with their community standards. And yet not one NBC owned and operated affiliate preempted it based on community standards. In a 43-page petition brought to the FCC on behalf of more than 600 affiliates nationwide, the Network Affiliated Stations Alliance (NASA) complained that under virtually every current affiliation agreement, an affiliate risks losing its affiliation if it preempts more than a few hours of network programming without approval. The president of NASA said, “We are partners with the networks, but we cannot stand by and let them control our local stations. We know what works best for our local communities, and by law those decisions cannot be made in Hollywood or New York.” Now ask those New York and Hollywood media behemoths how important the issue of indecency is to them. I wonder if you will find one executive—I don’t know of a one—who will even speak out about it publicly, much less do a thing to stop it. Consider Keen Eddie, a new show on the Fox entertainment network which aired on June 10, at 9:00 p.m. I don’t mean to offend, but you must know what is being broadcast over the public airwaves to millions of impressionable children – perhaps your own children – in their living rooms. Keen Eddie featured a plot about a band of thugs trafficking in horse semen and hiring a prostitute to perform a sex act with a horse, so as to extract the semen from it. Here is the actual dialogue: Prostitute: “No, that’s not natural!” Thug: “Extraction for insemination. If you look at the picture on page 45 you’ll see how natural it is.” Second Thug: “You’re a 40-year-old filthy slut, you’ll do anything.” Prostitute: “With a human.” But the prostitute agrees to go through with it, except the horse suddenly drops dead, at which point she says, “I never laid a finger on it. I lifted up my blouse, that’s all… He needs to get aroused.” On national television. To millions of impressionable children. Over the public airwaves, into the family home, “The one place,” according to the Supreme Court, “where people ordinarily have the right not to be assaulted by uninvited and offensive sights and sounds.” Chairman Powell has called it “garbage” that anyone would suggest the FCC cares as little about community concerns as the networks it is meant to be monitoring. Let’s see about that. Over 10,500 complaints were sent to the FCC about the Keen Eddie sewage. Not one person, to my knowledge, has heard back. Not one. And guess how many stations the FCC has fined in the continental United States for airing indecency in the entire history of the FCC? Are you ready? Not a single one. In other words, according to the FCC, nothing, but nothing, on television has ever been indecent. You would be hard pressed to find a parent anywhere in America to agree with that assessment. It is NOT “garbage” to say the FCC doesn’t care and is not doing its job. There are some at the FCC who are trying to do their job regarding the filth coming across our airwaves, but as a whole, this Commission has failed. It is my fervent hope that Congress will tell the FCC that it will not permit its Pontius Pilate-like decision to allow these media titans -- who have so badly abused their privilege to broadcast on the public airwaves -- even more access to them. It is my further hope that the Congress will demand that the FCC start doing its job.