 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
|
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. Harry J. Pappas
Mr. Chairman, Mr. Markey, and Members of the Subcommittee, Good morning and thank you for this opportunity to speak on an issue of great public importance to the millions of viewers of broadcast television programming, and to nearly 1,000 local television stations throughout the nation that are affiliated with the national television networks. I am pleased to testify before you today not only as a broadcaster but also as a concerned citizen, husband and father of two young children. As the members of this committee demonstrated by their thoughtful comments during the previous hearings on this subject, you are well aware that the majority of Americans are outraged by the indecent and profane language and visual content that is now routinely broadcast over America's TV networks. Such program material, which is deeply offensive to most of our viewers and especially harmful to our children, has become all too commonplace on over-the-air television, and on cable and DBS channels -- at all hours of the day and evening when there are substantial numbers of children in the audience. This disturbing trend reached a crescendo several weeks ago during the Super Bowl half-time show when millions of Americans and their children were watching one of America's great sporting events, only to be unwittingly subjected to a particularly offensive display. This and other recent episodes have spurred a reassessment at the Commission and in the Congress, and the introduction of commendable legislation aimed at stemming the tide of indecency and profanity on radio and television. I commend Chairman Upton for his leadership, and I applaud FCC Chairman Powell for condemning this latest incident so forcefully and for personally overseeing the Commission's investigation of it. I particularly wish to commend Chairman Powell and all four Commissioners for their reaffirmation before this subcommittee of the lawful right of local affiliates to reject network programming. Lastly, I commend our network partners for implementing certain enhancements in their tape-delay systems to reduce the risk of broadcasting objectionable content during live broadcasts and for taking other remedial measures, but these steps do not adequately address the root problem or provide the necessary root solution. The bottom line is that local broadcasters are the best defense against offensive program material. While certain blatant incidents of profanity during live programming may be what has brought us here today, the prevalence of indecent or inappropriate material on television is by no means limited to such instances-whether scripted or not-during live programming. Increasingly, taped network series and other taped programming have imitated many of the cable network programs in a race to the lowest common denominator of poor taste, sexual or violent content, and profanity. Much of network daytime and prime-time programming today makes routine use of profane language, sexual innuendo and gratuitous, graphic violence. I cannot tell you what it feels like to be asked by our viewers across America-as I often am-why I am broadcasting obscenity and profanity into their living rooms. Nor what it feels like to have to answer: "Because my networks do not allow me to reject it - short of running the risk of losing my affiliation." Mr. Chairman, I have been in this business for 39 years and this was never about being a cookie-cutter McDonald's franchise. Unfortunately, unless we reverse this trend, local stations will become mere passive network conduits for national network programs, and I don't believe that is what Congress intended. My view is this: I believe that as free over-the-air broadcasters, we have a special and honorable responsibility to program in a manner reflective of the interests and values of the local communities we are entrusted by FCC license to serve. We are a ubiquitous and free over-the-air service that makes use of public spectrum, and as such, have special responsibilities to serve our local communities. We have, for decades, been perpetual guests in America's living rooms. If we choose to emulate cable rather than to show leadership in stemming the tide of profanity and indecency and gratuitous violence, I believe we lose our unique mission, which is our commitment to localism and our statutory obligation to program for our local viewers. Congress authorized local broadcast stations and gave them special responsibilities to serve "local" communities. That is the unique character of and what has made the American broadcast system the envy of the free world. It is a tribute to the genius of Congress when, in l934, it designed a broadcast system to assure that local stations in local communities-not national network executives in Hollywood or New York-would pick the programs for those communities. The holder of the local station license-as a public trustee-is charged under Section 310(d) of the Act and Section 73.658 of the FCC's rules with the legal duty of accepting or rejecting network programs and deciding what programs are most appropriate for that community. A broadcaster cannot abdicate or delegate that duty. Both the FCC and the courts have said so repeatedly. Here's what the FCC said when it adopted the right-to-reject rule: "It is the station, not the network, which is licensed to serve the public interest. The licensee has the duty of determining what programs shall be broadcast over his station's facilities, and cannot lawfully delegate this duty or transfer that control of his station directly to the network.. The licensee is obliged to reserve to himself the final decision as to what programs will best serve the public interest." Section 310 (d) of the Communications Act of 1934, as amended, specifically delegated to local broadcast licensees the responsibility of programming in a manner reflective of the needs and interests of diverse local communities and the concomitant responsibility to control the content that we disseminate to our viewers in each local market. Section 73.658 (e) of the Commission's Rules clearly states: "No license shall be granted to a television broadcast station having any contract, arrangement or understanding, express or implied, with a network organization which, with respect to programs offered or already contracted for pursuant to an affiliation contract, prevents or hinders the station from: (1) Rejecting or refusing network programs which the station reasonably believes to be unsatisfactory or unsuitable or contrary to the public interest, or (2) Substituting a program which, in the station's opinion, is of greater local or national importance." Mr. Chairman, I watched the last hearing of this subcommittee on the subject of indecency with great interest, and I was heartened to hear Chairman Powell and all four FCC Commissioners reaffirm so clearly the statutory and regulatory right and obligation of local station licensees to reject or preempt network programming that includes objectionable content. But the fact remains that many of the current form of network affiliation contracts include provisions that inhibit the exercise of those statutory and regulatory duties. Those responsibilities, which Congress expressly delegated to local broadcasters to ensure their ability to program in a manner reflective of the needs and interests of diverse local communities, have been diminished over time. In reality, networks have strong-armed affiliates with their superior bargaining power to require affiliates to relinquish their programming responsibilities by contract. Networks today routinely abrogate the right to reject or preempt national network programming through the use of contractual provisions that explicitly threaten termination of the affiliation as a consequence of "unauthorized" rejection or preemption of network programming and substitution of non-network programming. As a consequence, the networks have largely succeeded through contract in reducing the statutory rights and public stewardship responsibilities of local broadcasters to accept or reject network programming to a mere vestige of the clear and unambiguous duties expressly mandated by Congress. If the right to reject rule says what it appears to say unequivocally, then such contractual provisions are clearly incompatible with both the law and FCC regulation. Let us be clear: There is a significant causal connection between the increasing prevalence of profanity and indecency on network television and the erosion of broadcast licensees' rights under the Communications Act of 1934, as amended, to control the content that we broadcast on our stations to our local viewers. While the Communications Act specifically grants the right to reject or pre-empt, local broadcasters today do so only at great peril. This tension between the law and the true realities of the network-affiliate relationship have been clearly outlined by the Network Affiliated Stations Alliance in its petition filed on behalf of the CBS, ABC and NBC Affiliates Associations before the Federal Communications Commission in March of 2001. The NASA Petition documents the manner in which the networks now demand and obtain contract provisions that effectively require affiliates to air all of the programming of a network rather than a locally selected mix of programming-which provisions plainly violate the Communications Act, the localism principle, and the basic Commission requirement that local stations retain the right to select programming. The Report and Statement of FCC Policy from the 1960 En Banc Programming Inquiry states that "broadcast licensees must assume responsibility for all material which is broadcast through their facilities." However, today, local affiliates have been virtually stripped of any right to receive network programming in advance and to evaluate its content. The "clearance" process has become a mere rubber-stamp. The truth is that in virtually every current network affiliation agreement, an affiliate risks losing its affiliation if it preempts any or more than a few hours of network programming without the network's prior consent. Such consent is rarely given. I am submitting to the Subcommittee a copy of the initial "Petition For Inquiry Into Network Practices" and a follow-up pleading entitled "NASA's Early Comments and Motion For Declaratory Ruling" that local network affiliates filed with the FCC on the very issues being addressed by this hearing. I respectfully request that these documents be inserted into and made a part of the record of these hearings. A brief summary of the Petition is attached to this statement as Attachment A. The network practices outlined in the NASA Petition threaten core public interest values of program diversity and localism and must be addressed. In all fairness to the networks, I understand that it is the job of network executives to get their programs shown on all of their affiliated stations. Conversely, however, it is the legal responsibility of local station licensees to make sure those programs are both suitable and of interest to their communities of license. The networks are the most important business partners local network affiliated stations have. My stations are affiliated with Fox, CBS, ABC, the WB, UPN and Azteca America in 15 markets in 10 states across the country, and I will attest to the fact that the networks produce a lot of very high quality programming for a national audience. It is certainly not my intent to suggest otherwise. However, the truth remains that the audience I am licensed to serve in Los Angeles or San Francisco is very different from the audience I am licensed to serve in Greensboro or Fresno or Omaha or El Paso. And as the result of unduly relaxed federal oversight, the networks-in a competitive effort to maximize profits-now are in a position to effectively deny local stations the ability to reject network programs that may simply be unsuitable for their markets, or to substitute programs of greater local interest or importance. This difference, of course, presents, a conflict. That conflict has grown in intensity in recent years as the networks have grown more powerful and local stations have been forced increasingly to succumb to the networks' demands to the detriment of our viewers. Mr. Chairman, I commend you and Mr. Markey for introducing H.R. 3717, The Broadcast Decency Enforcement Act, which would increase the penalties that the Commission could apply for violations by television and radio broadcasters of the prohibitions against transmission of obscene, indecent, and profane content. I, too, am deeply troubled by the now commonplace profanity on network television, and by the upset it has caused to most of our viewers, as well as by the potential legal liability that it entails for our stations for unwittingly, and indeed unwillingly, transmitting such material over our airwaves. I support your efforts to increase the penalties for indecent broadcasts, and I, personally, would be willing to accept the punishment if I were to commit the offense. However, the conundrum for local broadcasters is that while we, as licensees, are the legally liable entities, it is typically network-originated programming that potentially places us at risk of sanction. The truth is my fellow local broadcasters have done a good job on the whole of adhering to the indecency prohibitions. As a consequence, of the thousands of complaints received by the FCC over the last several years relating to television, only a fraction related to locally originated programming. I am greatly appreciative that many of the members of this subcommittee have publicly acknowledged during these proceedings that the local affiliate is often placed between a rock and a hard place, and I applaud Congressman Green for proposing an amendment that is designed to indemnify affiliates for network-originated content. But I also believe that we can do even more to protect the interests of the public we serve by reaffirming our statutory rights to program. In order for the more robust fining regime you are considering to be truly effective, the FCC should at a minimum reverse the Enforcement Bureau's unfortunate decision in the Bono case and start to actively levy fines against the networks for indecent broadcasts in whatever form they take. Congress should also reaffirm the prohibition against any use of profane language regardless of its context during the hours of 6AM and 10 PM-and in so doing, remove the ambiguity that has clouded this matter to the detriment of the vast majority of the viewing public. There are ample studies that clearly demonstrate that exposure to indecent content is harmful to children, and Congress should not be reticent to make such a finding. Nor should Congress be reluctant to legislate in this area for fear that ridding our families' living rooms of indecent content cannot pass Constitutional muster. Certainly there is a distinction to be drawn between First Amendment protection of political speech or content that adults choose to view or read, on the one hand, and content that is beamed into the home at all times of the day and night when children are watching what is, after all, still America's great pastime. If shouting fire in a crowded theatre when not true is impermissible speech, surely so is conduct in speech or image on our airwaves which demonstrably harms the most vulnerable in our society-our children. As the Commerce Committee undertakes hearings into the critical matter, I respectfully request that members of the Committee bear in mind that stemming the tide of indecency on the nation's airwaves requires a reaffirmation by the FCC of the local licensee's unfettered right and responsibility to broadcast only that programming which the licensee, as public trustee, deems appropriate to and reflective of the tastes and mores of the community the licensee has been licensed to serve. Frankly, there is no one thing the FCC could do at the moment to more effectively and quickly stop the "race to the bottom," as Chairman Upton so aptly described it, than to take action to restore to local stations and their communities the ability to accept or reject national network programming. For, while I do believe it is appropriate that affiliates be indemnified by the networks for indecent content that is network-originated, our primary responsibility is to our audiences and to ensuring that we discharge our responsibilities to them. We proudly accept the public stewardship that Congress entrusted to us as local broadcasters. We only request, in turn, that the FCC unequivocally reaffirm our legal right to reject unsuitable network programming and to air non-network programming of greater local importance, and thereby to enable us to discharge our responsibilities to our viewers and your constituents. Once our right to clear and reject network programs is affirmed, we, as local broadcasters, will gladly accept the responsibility for the content of those programs. After all, if we are to be subject to penalties because we bear the legal responsibility and liability for the content we transmit over our airwaves, then we must also be given back the de facto ability to prevent the broadcast of sanctionable content. It is my firm belief that local broadcasters are - as Congressman Markey suggested two weeks ago - the best defense against offensive, profane or indecent program content. I respectfully urge this subcommittee to do whatever it can to enable local broadcasters to discharge that critical responsibility for the benefit of our viewers. Mr. Chairman, I commend you and the subcommittee for taking this important legislative initiative. Thank you.
|
|||||||||||
|
