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Prepared Witness Testimony The House Committee on Energy and Commerce
H.R. 3717, the "Broadcast Decency Enforcement Act of 2004
Subcommittee on Telecommunications and the Internet
Mr. Mel Karmazin
Good morning Chairman Upton and Members of the Subcommittee. I am Mel Karmazin, President and Chief Operating Officer of Viacom. Thank you for inviting me to appear before you today. The topic of this hearing is H.R. 3717, "The Broadcast Decency Enforcement Act of 2004." With such a subject naturally comes scrutiny of the state of television and radio in America today. In a universe of television and radio programming that is informative, educational and entertaining, the incidences of indecency are infinitesimal. There are more than 1,700 television stations and nearly 13,500 radio stations nationwide, broadcasting a total of some 8 billion minutes each year. And yet, in any given year, programming that is found to be indecent typically represents a handful of incidents covering only a few hours of that time -even under the vaguest indecency definition that exists today. This illustration is not meant to diminish the serious concerns and legitimate debate about indecency. Rather, it is an attempt to put into perspective the frequency, or more correctly, infrequency, of indecency and to shine a light on all the positive social contributions that we and other broadcasters make. In the interest of time, rather than enumerate all of our efforts, I will submit for the record in this hearing an impressive compendium of the localism, programming and diversity achievements of Viacom's broadcasting divisions. One example you will find discussed in that litany is our HIV/AIDS awareness campaign. Launched last year in partnership with the Kaiser Foundation, the campaign mobilizes the full range of Viacom's properties. In 2003, Viacom devoted $180 million in media value to messages on HIV/AIDS and produced 15 television programs on the topic, which reached more than 50 million people. And for 2004, Viacom has pledged $200 million in ad value to the campaign. Largely unnoticed in the recent controversy was our decision to air a highly valuable spot on HIV/AIDS during the Super Bowl pre-game show. This message reached about 72 million people, and in the 48 hours following its airing, the campaign's website received 215,000 unique visits, allowing individuals to obtain important information on the disease. Equally unnoticed was MTV's launch during the Super Bowl half-time of its "Choose or Lose 2004" campaign with a timely message to young people about voter registration, a cause certain to resonate in these halls. But a few regrettable moments in that same Super Bowl have since overshadowed our many good deeds and the quality programming that our company produces and delivers day-in and day-out. We had eagerly anticipated broadcasting the NFL championship game since 2001, when we last aired the event. Super Bowl XXXVIII was the fifteenth one that CBS has televised. In the months leading up to February 1, CBS Sports and engineers excitedly prepared to showcase in both analog and high definition what has become the centerpiece for a national day of celebration. At the same time, MTV made ready its plans for production of the game's half-time show, featuring some of the most popular recording artists in the music industry: Janet Jackson, Kid Rock, Justin Timberlake, P. Diddy and Nelly. This is the second time that MTV produced the half-time event -it also did so in 2001. MTV's preparations for this year's half-time event included a full review, in tandem with CBS, of the script and lyrics and attendance at all rehearsals throughout the week before the Super Bowl so as to conform to broadcast standards. The script called for no untoward behavior. In rehearsals, Nelly did not reach for an area below his belt, and Jackson and Timberlake certainly did not practice the stunt they performed on air. Further, as Jackson has acknowledged in both written and televised statements, it was devised by her alone, without the knowledge or participation of anyone at CBS or MTV. In addition to these preparations, CBS put in place for the broadcast of both MTV-produced segments on Sunday -the one-hour "TRL Total Request Live" at noon Eastern and the half-time show- a five-second delay device designed to eliminate inappropriate audio. With respect to video, the first line of defense, as is always the case at live entertainment and sporting events, was the cut-away camera, which moves the camera away from inappropriate graphic subjects. Given the history of broadcast television up until this Super Bowl, deleting troublesome video was never a concern, except, perhaps, for the occasional streaker dashing across a sports field. Having taken these steps and with our delay and cut-away systems ready, we truly believed that we had thoroughly prepared and taken all precautions needed to deliver a sports and entertainment event that would be enjoyed and applauded by fans throughout America and around the world. We were wrong. Although we are proud of 99 percent of what people saw on CBS last Sunday during eight hours of Super Bowl sport, pageantry and music, we understand what a difference one percent can make. We apologized right after the incident. And I take this occasion to apologize again, to our viewers, to our affiliates, to both teams and the NFL, and to our advertisers for not having in place the technology needed to remove objectionable video before it reached our audience. Some have publicly stated that they don't believe that we were duped by Jackson and Timberlake. Even with the facts before them, they never will. Yet, logically, there was nothing to gain for Viacom -not for ratings, not for advertising dollars, not for promotional value. Our reputation and the reputations of CBS and MTV are too valuable to risk by engaging in such stunts. Others have said that we should have anticipated what would happen because of the talent involved. Yet, to our knowledge, neither Jackson nor Timberlake, seasoned performers in numerous live television events, had ever engaged in such an antic. The well-received half-time show MTV produced three years ago had also included performances by Timberlake and Nelly. The unfortunate Super Bowl half-time episode instructs us that unacceptable conduct may occur at live entertainment events on broadcast television that the cut-away camera approach cannot cure. Artists are pushing new limits, and as they do, high definition digital technology is delivering their words and actions clearly and crisply and often on very large screens into America's homes. Personal video recorders, like TiVo, transform what once was a fleeting, did-that-really-happen television moment into a repeated performance. It was reported that TiVo subscribers hit rewind on the Jackson-Timberlake incident nearly three times more than they did on any other moment in the Super Bowl, even those nail-biting final seconds of the game. These TiVo-recorded images of fleeting television moments are then magnified and transported around the world almost instantaneously via the Internet. Of course, the enlarged still photos appearing on websites are not what a Super Bowl viewer saw. Our first-line defense of the cut-away camera did work to make the incident truly fleeting. And the cut-away camera did, a few moments later, manage to completely protect the home audience from viewing a streaker who had eluded heavy police security and darted across Reliant Stadium's field in front of 70,000 fans. We must be vigilant at the moment of broadcast to protect our own viewers, but we cannot be responsible for the images that are stilled, distorted and then disseminated via a medium over which we have no control. However, we do understand that our first line of defense has to be made more effective. For the live Grammy Awards show this past Sunday, the CBS Television Network implemented an enhanced delay system for deletion of any inappropriate audio and video footage, had it been needed. Under this system, the broadcast of the live Grammy Awards event was delayed by a full five minutes. Developed by CBS engineers on short notice, at great cost, and under tremendous pressure, the system is groundbreaking -no other network has ever undertaken the task of creating a system that is capable of eliminating video from a live program. In fact, the system we used for the Grammys truly is an invention in process, and we are at the mercy of the technology and of our personnel on the scene. While we would like to commit to using this enhanced technology for all potentially problematic live network events, we are still studying how it works. But I pledge to you that the CBS Television Network will use it or something better whenever appropriate. We do note a concern that anything more drastic could mean eliminating all live programming. That would not be a good outcome for viewers of broadcast television. Moreover, with an enhanced delay system in place, some celebrities in fact may believe they can do and say anything based on the assumption that the network will catch the inappropriate-for-broadcast behavior before it airs. Our rigorous attempts to deal with inappropriate footage during live events leads to a discussion of Congressman Upton's bill, which seeks to increase fines ten-fold for violations of the FCC's indecency policies. The ultimate goal of any indecency law or rule should be to keep indecency from being broadcast to American listeners and viewers. Fines have a deterrent effect, for sure, and, if assessed judiciously, can also motivate broadcasters to take more precautions, which, in turn will minimize indecent broadcasts. But it is also important that, as the FCC levies fines, it exercise its discretion to adjust the amounts downward for behavior that is clearly not deliberate, that is, where the broadcaster has taken all reasonable precautions to comply with the indecency rules. One other point I would like to make is that the enormous fines proposed under the legislation could devastate small broadcasters, who will have much less ability to pay and could be driven to bankruptcy. As a broadcaster, I urge you to consider the significant impact of the legislation on small station owners. However, we firmly believe that instituting increased fines is putting the cart before the horse. There is a chronic problem that is not cured by increased fines, and that is the vagueness of the FCC's indecency standard. Before the FCC levies any fine, it must determine that a broadcaster has violated a rule. In the case of indecency, the rules are neither clear nor static. The precedent constantly changes, and the standard is not clearly articulated to broadcasters. For example, in two prominent decisions released shortly after the FCC published its long-awaited "Industry Guidance" on indecency in 2001, the FCC issued fines for Eminem and Sarah Jones performances found to be indecent. The FCC later reversed course, found the performances not to be indecent and rescinded the fines. More recently, the FCC's Enforcement Bureau, consistent with Commission precedent, found Bono's use of a particular word on a live awards show to be so fleeting and non-sexual as to be deemed not indecent. Now it is reported that the FCC intends to reverse course and find Bono's utterance to be indecent. These multiple course "corrections" in the context of adjudicatory proceedings typically involving a single party and taking months, or even years, of deliberation, illustrate the difficult task facing broadcasters as an industry in determining whether certain program material -especially in live broadcasts when they are under timing pressures- crosses the line. In short, broadcasters need a much better roadmap. The FCC should undertake a full rule making proceeding in which all interested parties can participate so that the constitutional parameters of indecency enforcement can be made as intelligible as possible. The Commission has never held such a proceeding relating to indecency, nor has the FCC ever tried to establish a mechanism by which it can reliably ascertain the required contemporary community standard for the broadcast medium. Given the fast-paced nature of change in our society, such an updated standard is critically needed. Then the courts can decide whether the lines have been drawn in proper deference to the First Amendment. Our request for clear guidelines from the FCC and the courts is in no way an abdication of our responsibility as broadcasters in setting our own internal guidelines. Therefore, I take this opportunity today to reaffirm and explain these long-standing commitments and practices, as well as to announce the institution of a new one, to our CBS and UPN viewers and to Infinity listeners. First, we reaffirm our policy across the networks and our owned radio and television stations that certain expletives like those contained in the George Carlin monologue "Filthy Words" and which led to the Supreme Court's Pacifica decision should not be broadcast at any time of the day, including "safe harbor" periods -except in the rare instance where deleting such language would undermine classic creative content delivered in context. Several years ago, for example, CBS aired a live production of "On Golden Pond," in which we allowed language we would not have otherwise permitted. We also note that other networks have taken the same approach when airing movies such as "Schindler's List" and "Saving Private Ryan." When such exceptions are used, however, warnings to viewers about language are frequently interspersed within the programming. As has always been the case, appropriate action, up to and including termination, will be taken against any Viacom employee who violates this policy. Second, it has been the practice for several years now, that all of our Infinity radio stations that produce their own potentially problematic live entertainment or news programming, or sporting events containing a live entertainment or interview element, have in place delay systems and the personnel to operate those devices in order to delete inappropriate expletives, as well as other unacceptable sexual descriptions or depictions within that programming. We will continue to use these systems and discipline Infinity employees who fail to vigilantly utilize them. And third, starting this quarter, for the first time all of our owned and operated CBS and UPN televisions will purchase and install delay systems to be used under the same circumstances as described for the Infinity radio stations. In conclusion, we hope that these policies and changes help reassure you and our viewers and listeners of our commitment to continue to deliver the high quality programming they expect and deserve from our company. On behalf of our entire organization let me again state that I regret the incident that occurred during the Super Bowl half-time show. Our country has the finest free broadcasting system in all the world, and Viacom is proud to be a part of that system.
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