NAB's Lombardo fights for First Amendment rights

I'd like to recognize you and your colleagues at The Media Institute for being on the front lines defending the First Amendment. In this town, it can be a lonely and unpopular fight. But it's a fight worth waging, and we need more groups like The Media Institute to constantly remind us that free speech can never be taken for granted.

Having said that, I want to promise all of you that my remarks today will be clean. If you're looking for HBO-like language - - or a "wardrobe malfunction" - - you've come to the wrong place. That's as close as I will come to humor today, because it's hard to find anything amusing in Washington related to broadcasters and the First Amendment.

I come here to discuss an issue that my colleagues in free, over-the-air broadcasting are watching with intense interest. As a local broadcaster for nearly 50 years, I can honestly say there's never been more concern among my colleagues with respect to the government's crackdown on controversial and cutting-edged programming.

Broadcasters today are living in a state of tremendous uncertainty. The FCC's inconsistent application of indecency rules - - coupled with concern over a small number of what some would call "tasteless" programs - - has prompted unprecedented anxiety at every level of our business.

In 2004, the FCC levied a record $7.7 million in indecency fines against broadcasters, up from just $48,000 in 2000. Compare that $7.7 million in broadcaster fines to the ZERO fines levied against cable and satellite providers, and you can appreciate the local broadcaster's growing concern over indecency.

The "indecency disconnect" in Washington is apparent for all to see. At the same time that indecency regulations are being ratcheted up against local broadcasters, cable giants like Comcast and Time Warner are raking in hundreds of millions a year from pay-per-view, hard core pornography.

And just yesterday, The Los Angeles Times reported that Adelphia Cable has reversed course and begun providing Triple X rated porn to cable customers. "People want it, so we are trying to provide it," said an Adelphia spokeswoman. "The more Xs, the more popular."

At the same time, local broadcasters are being tied in knots by rules that fail to recognize today's evolving multichannel market. Our conundrum was highlighted two and a half weeks ago, when the "S-word" was uttered during a Tsunami Aid concert aired on a variety of NBC platforms. Under FCC rules, broadcast affiliates of NBC, Pax TV and Telemundo are potentially subject to sizeable FCC fines, while NBC cable properties CNBC, MSNBC, USA Network, Bravo, Trio and the Sci-Fi Channel are off the hook.

The breadth of this disparate treatment creates a confusion among both broadcasters and consumers. In an era of expanding program diversity, when nearly 85% of households receive local television signals from cable or satellite, is it appropriate for only one medium - - broadcasting - - to face large fines and threats of license revocation? Does the average cable and satellite customer even differentiate between an over-the-air channel and a cable or satellite channel?

Cable programming targets younger, appealing demographics with uncut Hollywood movies and sexually explicit and violence-laden shows like "Sex and the City" and "The Sopranos." For their part, satellite radio providers XM and Sirius are doing the same by luring Opie and Anthony and Howard Stern away from "free radio."

Howard Stern himself blames the indecency crackdown for his switch to a pay satellite platform. Here's a direct quote from the self-described "King of All Media": "I guarantee I will reinvent myself, because I can go further than I have ever gone. You can't reinvent yourself if you've got the government breathing down your neck."

The indecency crackdown is also causing confusion when broadcasters cover live, breaking news, even when it involves a war hero. Six months ago, Phoenix TV stations briefly aired live coverage of a eulogy for Pat Tillman, the Arizona Cardinal pro football player killed in Afghanistan after enlisting as an Army Ranger. During the eulogy, Tillman's brother uttered the "F-word." Phoenix stations concerned over FCC retribution immediately shifted to previously scheduled programming.

In time of war, surely something is amiss when a local broadcaster can't air a fallen warrior's funeral out of concern for retaliation from the FCC.

Today's indecency rules stem from the famous Pacifica case, when the Supreme Court found that because of broadcasting's "uniquely pervasive presence," restrictions could be placed on the airing of a George Carlin monologue.

You have to wonder if the Supreme Court today would find broadcasters as "uniquely pervasive" as it did in the Pacifica case nearly three decades ago. In 1978, cable TV was in its infancy. Satellite TV was still in gleam in Stan Hubbard's eye. And, of course, Al Gore had not even invented the Internet.

Yet despite all evidence suggesting that broadcasters are less pervasive today - - thereby warranting a need for less regulation of speech -- policymakers are even more strictly regulating free, over-the-air stations with more content regulation.

I would submit it is our viewers and listeners who suffer the most from the government crackdown. Case in point: after the FCC reversed its own staff and found Bono's fleeting use of the "F-word" to be profane, ABC affiliates in 66 cities across America preempted a Veterans' Day airing of "Saving Private Ryan," - - even though the film aired twice previously.

Applying the Bono decision, we calculated that if my company had run "Saving Private Ryan" on our three ABC affiliates, Citadel Communications could have been liable for over $3 million in fines to the FCC.

As a small market broadcaster, I cannot stay in business paying those kinds of fines; that's a risk that I could not take. So, unfortunately, our stations preempted "Saving Private Ryan."

I should add that many ABC affiliates did air the movie, and that the American Family Association has filed numerous complaints at the FCC in protest.

Some may find it self-serving, but I'll say it anyway: Broadcasters take seriously our role as stewards of the airwaves. Our industry has a proud and unmatched record of public service. We are committed to localism, because we are the only electronic medium that is local. Staying in tune with the communities we serve is what keeps us in business.

If local broadcasters are subjected to million dollar indecency fines, what happens to the tens of thousands of hours of local news and public affairs programming, targeting the specific needs of each community?

Or, to the countless lives we save each year with Amber Alerts and emergency weather warnings? Or, to a broadcaster's ability to remain viable and continue its close involvement in a community?

Local radio and TV stations generate hundreds of millions annually for charity through radiothons, telethons and other on-air fundraising appeals. The FCC may dismiss the money that local stations raise for charity, but I can guarantee you this: the charities themselves don't dismiss it. Indeed, the charities know that much of their good works would go for naught if not for the specific benefits derived from donated airtime and fundraisers from local stations.

When tornadoes ripped through Lincoln, Nebraska last May, my station - - KLKN - - aired many hours of coverage without commercial interruption, and scores of viewers thanked us for saving their lives. If KLKN had been fined over $1 million for airing "Saving Private Ryan," the cash flow of our station would have been wiped out. Simply put, we would not have had the resources or the staff to provide this type of coverage.

We should not forget that over-the-air broadcasting is free to the consumer. Local stations are in a fierce battle with our pay cable and satellite competitors to provide compelling - - and yes, occasionally "edgy" entertainment. It's that entertainment programming - - and the ad revenue generated from those shows - - that enable stations to provide local audiences with a broadcast service that is the envy of the world.

When you view the current media landscape, it raises a number of questions.

Are policymakers on the verge of killing free-over-the air broadcasting with rules that stifle our ability to compete in today's multi-channel universe?

Should broadcasters be expected to 'dumb down" much of our programming to avoid fines and/or possible license revocation, thereby eroding our audience and the advertising base that supports our medium?

Are activist groups trying to drive broadcasters off the air through Internet campaigns based on complaints from people who never actually hear or watch programs they're protesting?

It's worth noting that the FCC last year fined Fox and its affiliates $1.2 million for a program that received just 23 complaints. All but four of those complaints were identical, and only one came from a viewer who claimed to have actually seen the show. By contrast, the program in question was seen by an audience of 5.1 million households.

Moreover, Media Week - - citing the FCC as its source -- reported that post-Janet Jackson, 99.9% of all indecency complaints in 2004 were generated by a single activist group, the Parents Television Council.

All of these are difficult questions, and ones that broadcasters have struggled with for years. Nearly a decade ago, local TV stations put in place a rating system for TV programs which, when working in concert with V-chip technology, permits parents to screen out objectionable programs. This safeguard goes beyond the ultimate safeguard - - which, of course, is the on-off switch.

In recent months, scores of radio and TV stations have been forced to buy equipment that delays a broadcast by five seconds to protect against indecency fines. Five-second delays have been added to live programming like Monday Night Football, The Academy Awards and the Grammys.

All of this is being done to protect against the occasional alleged indecent utterance. Incidentally, I am not aware of a single 5-second delay instituted by a cable operator or cable network anywhere in America.

Further, the NAB has appointed a Task Force to respond to concerns of policymakers in the program content area, and we will have a final proposal ready soon. Responsible self-regulation is what we are about.

In closing, I would remind everyone that there are 16,000 local radio stations and 1,700 local television stations all across America. The vast majority of those stations have never been the subject of an indecency complaint. These stations are invested in the fabric of the communities we serve, and the people running them are parents and civic leaders.

America is a vast country, with community standards that differ region-by-region, state-by-state, and community-by-community. What's appropriate in New York City may not be considered appropriate to audiences in Salt Lake City.

My hope is that policymakers ultimately agree that local broadcasters, serving local citizens, are the best arbiters of program choices and are capable of making those decisions with limited government involvement.

And speaking of limited government involvement, I will end with quotes from two different Powells - - one, the late Supreme Court Justice Lewis Powell, the other, FCC Chairman Michael Powell.

Justice Lewis Powell clearly understood the gravity involved in government intrusion into the First Amendment rights of broadcasters. In the famous Pacifica decision, he wrote that the FCC does not have - - and I quote - - "unrestricted license to decide what speech, protected in other media, may be banned from the airwaves in order to protect unwilling adults from momentary exposure to it in their homes."

Further, Justice Powell wrote: "The Commission may be expected to proceed cautiously."

Contrast that with Chairman Michael Powell, who last year testified before Congress that the FCC was preparing to "sharpen our enforcement blade."

We would respectfully submit that it is Justice Powell who had it right.