*Pages 1--8 from Microsoft Word - 34011* Remarks of Commissioner Kevin J. Martin 21st Annual Institute on Telecommunications Policy & Regulation December 5, 2003 Thank you, Dick, for that kind introduction. And thanks to the PLI for inviting me to speak to you today. At this conference last year, I said I hoped to spark a healthy debate. I think I did that. I’ll try to make my remarks as interesting this year. I thought I would touch on two things this morning. First, I’m going to talk briefly about one of the media issues that has been getting an increasing amount of attention lately and that I think will be in the forefront of the next year: broadcast indecency. I’ll then spend a little more time on what I see as one of the biggest issue confronting the telecommunications sector: the deployment of broadband services. Broadcast Indecency Most of you likely are aware that there has been an increasing concern about the appropriateness of today’s programming on television and radio. Indeed, some have recently described the Commission as loosening its indecency standard. For example, it has been reported that recent Commission decisions mean that the “Seven Dirty Words” are now OK to use on broadcast. 1 Some observers have begun to make fun of this trend. The Parents’ Television Council filed a copy of the following show with the FCC, pointing out that it was taunting the Commission and poking fun at the agency’s reasoning. I hope my airing of this clip does not offend anyone. [Transcript of video: Ms. Choksondik: Alright, children. In lieu of the common usage, I’m supposed to clarify the school’s position on the word “shit.” Stan: Wow! We can say “shit” in school now?! Kyle: This is ridiculous! Just because they say it on TV, it’s alright? Ms. Choksondik: Yes, but only in the figurative noun form or the adjective form. Cartman: Huh? Ms. Choksondik: You can only use it in the non- literal sense. For instance, [turns and writes on the board] "That's a shitty picture of me." is now fine. However, the literal 1 See, e. g., Jennifer Armstrong, “Curses! Dirty words are sneaking into TV,” Entertainment Weekly, Oct. 24, 2003 at 21; Nell Minow, “Standards for TV language rapidly going down the tube,” Chicago Tribune, Oct. 7, 2003 at C2. 1 2 noun form of [writes] "This is a picture of shit." is still naughty. [crosses out the sentence]. Cartman: I don’t get it. Stan: Me neither. ] Unfortunately, I fear some at the Commission thought the show actually was advocating a new line of reasoning. Listen to a recent Bureau- level Order (and again, I apologize for the language): The word “fucking” may be crude and offensive, but, in the context presented here, did not describe sexual or excretory organs or activities. Rather, the performer used the word “fucking” as an adjective or expletive to emphasize an exclamation…. Thus, because the complained- of material does not fall within the scope of the Commission’s indecency prohibition, we reject the claims that this program content is indecent. 2 I don’t get it, either. There is something wrong when our agency draws technical lines that even the people “on the edge” find laughable. I cannot comment on the specifics of this case, but I am not sure that a word otherwise considered indecent becomes acceptable merely because it is used as an adjective. Our concept of what constituted “indecent” material changed from the “Seven Dirty Words” because the Commission thought that definition was too narrow. We took context into account in order to broaden what would constitute indecent material. But now we seem to be saying even the most objectionable of those words is OK? The FCC plays an important role in protecting Americans, particularly children, from indecent programming. We have a statutory mandate to prohibit indecency on broadcast, and I take this responsibility seriously. I am concerned that the Commission is not doing all it should in this area. We may be interpreting the statute too narrowly. We also may need to enforce our rules more stringently. For instance, I have been advocating counting each indecent utterance in a broadcast program as a separate violation, as the statute on its face appears to call for. 3 In fact, in the clip I just showed, you might have noticed a counter in the corner 2 Complaints Against Various Broadcast Licensees Regarding Their Airing Of The “Golden Globe Awards” Program, File No. Eb- 03- Ih- 0110 (EB Oct. 2003) (emphasis added). 3 See, e. g., Statement of Commissioner Kevin J. Martin, Infinity Broadcasting Operations, Inc., Licensee of Station WKRK- FM, Detroit, Michigan, Notice of Apparent Liability, 18 FCC Rcd 6915 (2003). See also 18 U. S. C. § 1864 (“ Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both”). 2 3 adding up the number of times the swear word was used. Counting each utterance as a separate violation could significantly increase the amount of fines that we could levy. If we were implementing our statutory mandate effectively, our rules would serve as a significant deterrent to broadcasters considering the airing of obscene, indecent and profane material, and our fines would punish violators sternly. I am concerned that we are failing on both fronts. Just this past quarter, for instance, indecency complaints increased from 351 to 19,920. Clearly, consumers are concerned. I also am concerned that use of such profanity reflects a regrettable coarsening of the language and images on television today. Many observers have commented on the increase in gratuitous sexual, violent, and offensive programming on broadcast television. I have been troubled by this trend for some time now, and have been actively encouraging broadcasters and cable operators to offer more tools for parents to deal with this trend. For example, in an article I wrote at the end of 2002 and in my remarks before the National Association of Television Program Executives last January, I expressed my disappointment in the choices facing parents who want to watch television together as a family. 4 I encouraged broadcasters to bring back the Family Viewing Hour – to devote the first hour of prime time to family- friendly programs. Yet, according to a recent study, it is during this hour that the greatest increase (95%) of inappropriate language has occurred. 5 But I would not place the burden on broadcasters alone; I also have called on cable and satellite operators to offer a family- friendly programming package, so that parents could enjoy the excellent family- oriented channels available without being forced to subscribe (and pay for) the channels they believe have less appropriate programming. Together, these steps would empower parents and enhance the value that television can offer. I believe that this issue will increasingly become the center of debate at the Commission and on the Hill. Broadband: Where We Are Today Last year, I had the privilege to speak before this conference. I noted that the Commission was at a “crossroads.” We were about to embark on fundamental policy decisions regarding local competition and broadband issues. In that speech, I urged the 4 Copies of these documents are available on my website at http:// hraunfoss. fcc. gov/ edocs_ public/ attachmatch/ DOC- 234613A1. doc and http:// www. fcc. gov/ Speeches/ Martin/ 2003/ spkjm301. pdf. 5 The Parents Television Council tracked the use of common swear words in 400 hours of prime time programming shown on the 6 largest broadcast networks in 1998, 2000, 2002. The use of these words increased in the 7- 8 p. m. time slot increased 94. 8% from 1998 to 2002. Nell Minow, “Standards for TV language rapidly going down the tube,” Chicago Tribune, Oct. 7, 2003 at C2. 3 4 Commission to make its top priority promoting new investment and the deployment of advanced network infrastructure. I noted that we should focus first on creating the right incentives for companies to invest in and deploy advanced services. That call for action was based mainly on the advocacy of incumbent telephone companies, who argued with vigor that they would not build new infrastructure nor roll out new advanced services unless they received regulatory relief for that new investment. The message delivered by the incumbent phone companies was simple: they claimed they wanted the opportunity to roll out broadband facilities throughout America, but they were hampered by a federal regulatory framework that, at best, created disincentives to investment in new infrastructure. Much has happened since last December. In the past year, the Commission took important steps to craft a package of balanced regulations that would help encourage investment in next- generation broadband infrastructure, and also preserve existing competition for local telephone service— the competition that has enabled millions of consumers to benefit from lower telephone rates. The critical policy decisions made during the course of this past year create a “window of opportunity” for incumbent telephone companies – an opportunity for incumbents to invest their way out of legacy regulation. As many of you are aware, in the 1996 Act, Congress established a careful balance: if incumbent monopolists opened up their local voice telephone market to competition, in return, they would receive the opportunity to compete for new revenue streams in new markets. By demonstrating the existence of competition, the RBOCs would be allowed to enter new markets and provide services subject to less regulation. Competition first, then deregulation. The framework created by Congress necessarily required the loss of the incumbents’ exclusive monopoly franchise. I frequently am struck by analyst reports that cite unexpected line loss by the incumbents. By definition, opening their markets to competition would result in access line loss and a potential decrease of market share for local voice services. However, those losses would be offset by entrepreneurial opportunities created in new markets, such as long distance and data. Today, under this framework, all the RBOCs in every state have the opportunity to offer bundled local and long distance service packages. Indeed, the Commission completed the Section 271 process this week. The competitive trade- off appears to be working successfully in the marketplace. While 13 million local access lines are now being served by competitive service providers using unbundled elements, nearly 29 million consumers have chosen to take bundled local and long distance service packages from the incumbent RBOCs. As these consumers choose bundled local and long distant offerings, they are selecting largely unregulated packages. I believe it is the incumbents that are now at a crossroads. Do they remain providers of traditional voice services subject to regulation, or do they seize the 4 8 there is the same level of confusion about what we meant in recent orders, I agree we should address these issues. But, to the extent incumbents are seeking to get out of regulations that apply to their legacy infrastructure or to diminish competition for legacy voice services that Congress expected, I will be less inclined. Again, thank you for inviting me here today. 8