Expansion of indecency regulation: presented by the federalist society's telecommunications practice group.

• Position: Discussion

JUDGE SENTELLE: I've been alerted that we may start. There will be just a very little introduction, so you'll know you're in the right place. This is the Telecom panel. We will be dealing with the expanding or contracting or changing, or whatever they are, regulations on indecency from the Federal Communications Commission.

I will introduce each speaker briefly, and your first speaker will be presenting, I presume, the case for the Commission, is Kevin Martin, who is the Chairman of the FCC. It's not his first appearance at a Federalist function, as I moderated a panel last year on which the Chairman was speaking. I pointed out then that he holds a Bachelor of Arts degree in political science from the University of North Carolina. I would say that I hold one of those, too. Political science degrees in Chapel Hill were like social diseases; if you stayed there long enough, somebody gave you one.

However, after that, he went on to get further education, including a J.D., cum laude, from Harvard Law School, among other things. He has worked before as a counselor for the Commission; as a member of the Commission; he's now Chairman of it. And without further ado, Chairman Kevin Martin.

MR. MARTIN: Thank you, Judge. And thank you all for inviting me to participate today. Although, I did get nervous when anybody who introduces me says I'm going to be speaking in defense the Commission and the government in general. So that makes me a little bit anxious when I get that role. You know, and I think it's particularly difficult, actually, whenever you're dealing with issues related to indecency or content.

Trying to determine what's appropriate or inappropriate, at times, for what's on television or radio is probably one of the most difficult issues that the Commission faces, and I think it's one of the most difficult ones for all of the Commissioners. And it's obviously a difficult thing to end up doing. At times, it's very uncomfortable trying to figure out where those bounds are. And in general, I recognize, and I think it's important to remember, that the government is generally not as good at trying to make those determinations about content, which is in many ways why there are so many First Amendment protections about making sure the government doesn't get overly involved in content restrictions.

In general, one of the things that gets lost in the debate far too often is that parents and families really are the first and best line of defense for what's appropriate on television and radio. And I think it's one thing that we should be encouraging more active involvement with, and I certainly think everyone at the Commission feels that, to the extent that parents could be taking a more active role; that's the first line of defense--being able to turn inappropriate programming off is what we should all be focused more and more on.

And I also think it's equally important to recognize some of the corporate responsibilities that some of the companies can end up having by trying to be good corporate citizens and making sure that they're putting on programming at times when children are most likely to be in the audience; that is going to be most responsive to the concerns that some of the parents are raising.

But that all being said, the government does have a role, and the FCC does have a role, in enforcing some of its indecency rules. Congress has passed a law that says there are some limits as to what can be placed on over-the-air television and radio. The Commission adopted rules limiting the content that's on television and radio in certain circumstances--and at certain times of the day--when children are most likely to be present. The Supreme Court ultimately upheld those rules when they were challenged, and I think it's the responsibility of the Commission to enforce the rules that are there.

And so, I think there's a variety of things that the Commission can do to try to address the issue. But I think it is important to recognize that there has been, over my time on the Commission, an increasing concern expressed by a lot of parents about exactly the kind of content and the programming that is available and is being put out over the air. You know, when I arrived at the Commission, we received a couple hundred complaints a year. As a matter of fact, in the year 2000, the year before I arrived, we had less than 120 complaints for that year. But by two years later, we were receiving complaints in the thousands; we had almost 14,000 complaints two years later. The year after that, in 2003, we had hundreds of thousands. And in 2004, we had over a million complaints. I think that that's clearly reflective of an increasing concern among parents and uncomfortableness about what is being put on over-the-air in television and radio, and also increasingly frustration about the responsiveness to their concerns.

And so there are several things the Commission has done and needs to do. Obviously, they need to enforce the rules. I think they need to clarify, for example, that the broadcast affiliates have the right to reject inappropriate programming that the networks are providing, and that that's something that's guaranteed as part of their contractual rights and as part of our rules.

I also think there are several things that broadcasters need to do to try to address the issue, and I've encouraged for a long time, for several years, the broadcasters to try to reinstate a family hour, at least one hour of programming a night when they would have programming that is appropriate for families.

And I've also encouraged the cable industry to take several steps to try to address the programming and the content that's available to them. And I think that's included a variety of things that I've encouraged the cable industry to do, including putting on a voluntary family tier, which would have programming that could be sold separately; then their expanded basic tier, which was designed for families. They could give consumers more choice, whether that is an opt-in or opt-out model of programming; some form of a la carte, some form of additional choice within packages. I'll pay forty dollars a month for forty channels, but let them choose which forty channels they want. Or, have some kind of basic standard that should be applied to some of the channels that they are providing in a package. And I think that any one of those options would be important steps that I think the cable industry could take, as well, to try to address the increasing frustration that we see not only on the broadcast side but also on the cable side. We would continue to encourage those.

I think that when you're talking about this issue, I think you do have to put in context some of the levels of the concern that have been expressed. And it's not just the total number of complaints that are filed with the Commission. The Kaiser Family Foundation released a report yesterday talking about the increase in sexual scenes, in sexual content, that's on TV today and how much it's dramatically increased, even since the late 1990s. They released a report two years ago that talked about the use of profanity during what used to be determined as the family hour. It increased by ninety-five percent during that same timeframe, from 1998 to 2002.

Time Magazine had an article this past summer that talked about how sixty-six percent of the people in the country think that there's too much violence on TV; fifty-eight percent believe there's too much coarse language; fifty percent believe there's too much explicit sexual content; more than half of those polled in that Time Magazine survey indicated that the government should do more and be stricter in its enforcement.

Similarly, the Pew Research Center released a report last spring that talked about seventy-five percent of those surveyed favored tighter enforcement of government rules. Sixty-nine percent backed steeper fines, and over sixty percent supported some kind of extension of a standard about what's appropriate to cable television.

While I think the Commission is going to be responsive to the complaints that are filed in front of us, I think that it's not just the complaints that are in front of us. It's also these recent statistics of surveys that indicate that there is a growing frustration among parents and consumers about some of the content that is being put over the airwaves, both on television and radio, and some of the content that's on their cable television channels that are part of the packages of channels that they are required to purchase if they want to get other programming that is being offered.

So, I'm not sure exactly where our discussion will end up taking us, but why don't I just stop there, and then I'll look forward to having a continuing and interactive dialogue as the other panelists go forward.

JUDGE SENTELLE: Very good. I'm not going to get back up, since nobody else seems to be. I understand that one of those complaints to the FCC came from a woman who said there was way too much sex and violence on her husband's DVD player.

I don't think that was filed by the wife of Adam Ciongoli, who's our next speaker. He's Senior Vice President and General Counsel for Time Warner Europe. Prior to that, he's been counselor to Attorney General John Ashcroft on constitutional matters, among others; chief counsel to the Senate Committee on the Constitution; he taught constitutional law at Georgetown; he's a graduate of Georgetown University Law Center; and among other things, he was law clerk to someone named Samuel A. Alito, whom you may have heard of lately. And he probably won't take a question about that, but he will about the FCC regulation.

Adam.

MR. CIONGOLI: Thank you, Judge. I'm actually happy to talk about both, and it might be easier to talk about Judge Alito.

Over lunch today, I was sort of reviewing my notes and asking myself how I got talked into this. You know, Leonard Leo calls me from...