Related Amendments by Brownback to the FY08 Financial Services and General Government Appropriations Bill

July 12, 2007

The Honorable Robert C. Byrd
Chairman
Committee on Appropriations
United States Senate
Washington, DC 20510

The Honorable Thad Cochran
Ranking Member
Committee on Appropriations
United States Senate
Washington, DC 20510

Dear Chairman Byrd and Ranking Member Cochran:

As you prepare to mark-up the FY08 Financial Services and General Government Appropriations bill, 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, writes to strongly oppose two amendments expected to be offered by Senator Sam Brownback (R-KS) related to the Federal Communications Commission's (FCC) authority to regulate indecent and "excessively violent video" programming on television.

Government regulation over broadcasting should be kept to the 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. Therefore, there is not apublic interest justification for further government regulation of the broadcasting industry.

Senator Brownback's amendment on indecency attempts to reinstate an FCC policy that was found by the 2nd Circuit, after six months of review, to be "arbitrary and capricious." Even though it sent the policy back to the FCC for further review, the Court in its decision expressed doubt whether the agency could ever craft a rationale that would pass constitutional challenge.

It is important to note that while the 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 the amendment would be to unreasonably subject broadcasters to a $325,000 penalty for the random utterance of an expletive at a live sporting event, convention, or performance.

Senator Brownback's amendment on "excessively violent video programming" is fatally flawed because it fails to acknowledge that descriptions or depictions of violence on television are protected as free speech by the First Amendment of the Constitution. Rather than banning all such programming, the goal of the amendment can be achieved through other less restrictive means, such as the use of the V-Chip and other blocking technologies. The amendment is also unconstitutionally vague and overly broad. It appears to cover everything from fictional violence to war coverage to sporting events. The resulting regulatory uncertainty would needlessly harm the ability of the broadcast industry to supply the type and variety of television programming sought by the American television viewer. Indeed, the amendment could severely distort the market and alter business models by forcing programming and all associated advertising onto alternative media platforms, such as the Internet.

Moreover, the amendment would constitute government intervention where there is not a market failure. If a show does not achieve high enough ratings, it is removed from the schedule. At the same time, parents have the tools needed to protect their children. According to a recent survey commissioned by the TV Watch coalition:

• 60% of parents disagree with the statement: "The current parental controls and ratings systems have failed. It's time for government to step in and do more"; and
• 92% of parents agree with the statement: "Government involvement in curbing the amount of violence on television is okay in theory, but at the end of the day, the best way to prevent a child from seeing content deemed inappropriate is a parent in the home...not a politician in Washington."

For all of these reasons, the U.S. Chamber urges you to vote against the two amendments expected to be offered by Senator Brownback on the FCC's ability to regulate television content.

Sincerely,

R. Bruce Josten

Cc: Members of the Committee on Appropriations