Letter Opposing S. 1780

July 17, 2007

The Honorable Daniel K. Inouye
Chairman
Committee on Commerce, Science and Transportation
United States Senate
Washington, DC 20510

The Honorable Ted Stevens
Vice Chairman
Committee on Commerce, Science and Transportation
United States Senate
Washington, DC 20510

Dear Chairman Inouye and Vice Chairman Stevens:

The U.S. Chamber of Commerce, the world's largest business federation representing more than three million businesses and organizations of every size, sector, and region, strongly opposes S. 1780, the "Protecting Children from Indecent Programming Act," because it would create regulatory uncertainty, chill speech, and needlessly harm the ability of the broadcast industry to supply the type and variety of television programming sought by American television viewers.

Government regulation of broadcasting should be kept to a minimum and exercised only to the degree clearly required by the public interest. Parents currently have the tools necessary to protect their children from inappropriate content. Since 2000, American consumers have purchased 180 million TV sets with V-Chip technology that allows parents to block the display of television programming based upon its rating. Approximately 85% of all households have cable or satellite service that includes additional blocking technology so parents can control their children's access to programming more suitable for older teens and adults. Moreover, two-thirds of all U.S. households do not even include a child under 18.

S. 1780 attempts to reinstate a Federal Communications Commission (FCC) policy that was found to be "arbitrary and capricious" by the 2nd Circuit after six months of review. Even though it sent the policy back to the FCC for further review, the Court in its decision expressed doubt whether FCC could ever craft a rationale for the policy that would pass constitutional challenge.

It is important to note that while the 2nd Circuit Court of Appeals decision affects the FCC's ability to find broadcasters liable for the airing of fleeting or isolated expletives, it does not impact the FCC's ability to assess fines of up to $325,000 per utterance in cases where multiple or repeated expletives were aired in violation of FCC rules. Therefore, the only effect of S.1780 would be to unreasonably subject broadcasters to a $325,000 penalty for the random utterance of an expletive or airing of an offending image at a live sporting event, convention, or performance.

For nearly 30 years and consistent with the Supreme Court's 1978 ruling in FCC v. Pacifica (the George Carlin "seven dirty words" case), the FCC did not consider the broadcast of a fleeting or isolated expletive as a violation of its indecency rules. However, in 2004, the FCC inexplicably changed course and decided that in these cases broadcasters now may be held in violation of the FCC's indecency rules. The FCC has declared that they will review broadcasts on a "contextual basis," meaning that there are no clear rules for broadcasters to follow.

Faced with this regulatory uncertainty, broadcasters in some communities have refused to air certain shows rather than face the possibility of huge FCC fines and other sanctions. Without clear regulations, the vagueness of the process chills all speech, not just speech that may be indecent. This silencing of the airwaves harms the ability of the marketplace to respond to the demands of the American television viewer. Indeed, by reinstating the FCC's policy, S.1780 could severely distort the market and alter business models by forcing programming and all associated advertising onto alternative media platforms, such as the Internet.

For all of these reasons, the Chamber urges you to oppose S. 1780.

Sincerely,

R. Bruce Josten

Cc: Members of the Committee on Commerce, Science, and Transportation