Separate Statement of Commissioner Susan Ness
                                
In Re: Industry Guidance on the Commission's Case Law Interpreting 
18 U.S.C. 1464 and Enforcement Policies Regarding Broadcast Indecency
                                
Our enforcement of the broadcast indecency statute compels the FCC to reconcile two competing
fundamental obligations: (1) to ensure that the airwaves are free of indecent programming material during
prescribed hours when children are most likely to be in the audience; and  (2) to respect the First
Amendment rights of broadcasters regarding program content. 
      
Understandably, the public is outraged by the increasingly coarse content aired on radio and television at
all hours of the day, including times when children are likely to be listening or watching. The flood of
letters and e-mails we receive reflect a high degree of anger.  As a parent, I share the public's frustration. 
Many parents feel that they cannot enjoy watching daytime or primetime television with their children for
fear that their youngsters will be exposed to indecent material   content that just a few years ago would
have been unimaginable on broadcast television.

Despite an onslaught of on-air smut, the Commission necessarily walks a delicate line when addressing
content issues, and must be careful not to tread on the First Amendment -- the constitutional bulwark of
our free society.  Even words that might be construed as indecent are subject to some constitutional
protection against government regulation.  

That said, the Supreme Court has seen fit, despite declining broadcast audience shares, to reaffirm the
FCC's broadcast indecency enforcement role, given the "pervasive" and "invasive" characteristics of the
free over the air broadcast medium.  Our Policy Statement on indecency reconciles our statutory mandate
and constitutional obligation by providing helpful guidance to broadcasters and the public alike.  The
guidance we offer   a restatement of existing statutory, regulatory, and judicial law    establishes a
measure of clarity in an inherently subjective area. 

Recommended Procedural Improvements 

We should strive to make our complaint procedures as user-friendly as possible.  I believe that our
complaint process could be improved if, prior to acting on an indecency complaint, the Commission
routinely forwarded the complaint to the licensee in question.  The Policy Statement concedes that in
"many [indecency] cases, the station may not be aware that a complaint has been filed."  Moreover,
many consumers feel that the Commission mechanically dismisses their complaints. I do not believe that
broadcasters' First Amendment rights would be threatened if we were to send broadcasters a courtesy
copy of complaints filed with the FCC.  Indeed, most broadcasters want to be made aware of audience
complaints.  And consumers would be reassured that their views were being treated seriously.

Broadcasters Are Part of a National Community

Release of this Policy Statement alone will not solve the festering problem of indecency on the airwaves.
However, it is entirely within the power of broadcasters to address it  -- and to do so without government
intrusion. It is not a violation of the First Amendment for broadcasters on their own to take responsibility
for the programming they air, and to exercise that power in a manner that celebrates rather than debases
humankind.  

It is time for broadcasters to consider reinstating a voluntary code of conduct.  I encourage broadcasters,
the Bush Administration, and Congress swiftly to resolve any antitrust impediments to such action and
move ahead.

We all are part of a National Community.  As stewards of the airwaves, broadcasters play a vital
leadership role in setting the cultural tone of our society. They can choose to raise the standard or to lower
it. I hope that broadcasters will rise to the occasion by reaffirming the unique role of broadcasting as a
family friendly medium.  The public deserves no less.