that if we were to proceed on the basis that this is obscene, in their judgment a contest by the station would lead to a reversal of our action.

Senator GURNEY. As I understand what you say, then, since there are no decisions in broadcasting on this particular matter, FCC, that is, the present majority of it, and the Justice Department, have decided that nothing is obscene because no court has defined it; is that about it?

Mr. Cox. No. I think that any time

Senator GURNEY. What would you call obscene? Perhaps we can get at it that way.

Mr. Cox. I don't think it is my responsibility, Senator, to imagine what might be broadcasted that would be obscene. I will take those matters that come to my attention about which complaint is made. I will consult with my colleagues, with our General Counsel, and with the Department of Justice. If the consensus is that this is not obscene legally, then I do not think the Commission can treat it as obscene, whether we like it or not.

The essence of noncensorship is that it makes no difference what a Government official thinks of matter that is said, printed, or broadcast-because I think the first amendment applies as fully to broadcasting as it does to the other media

Senator PASTORE. Are you taking the position that before you can declare anything obscene broadcast on radio or television, it must be an offense that is prosecutable?

Mr. Cox. Yes.

Senator PASTORE. My goodness gracious.

Mr. Cox. The Senator is reading a criminal statute for which a man can be prosecuted, put in jail for 2 years, and fined $10,000. If he does something which is criminal, then it is obscene. If it is not obscene enough to be criminal, then it is not obscene.

Senator PASTORE. By the same token, you think they can show "I Am Curious (Yellow)" on television? By your logic, you can show "I Am Curious (Yellow)" tomorrow?

Mr. Cox. I will wait to see when some licensee considers it is in the public interest to present it.

Senator PASTORE. Now you're going off.

Mr. Cox. I cannot imagine the decision

Senator PASTORE. By the standards you are using, would you say with the same logic you are applying now, that you could show "I Am Curious (Yellow)" on television tomorrow?

Mr. Cox. If the Department of Justice said that the broadcast would not be subject to prosecution, I would say it was not obscene.

Senator PASTORE. They have already decided that. The Supreme Court has permitted that "I Am Curious (Yellow)" can be shown in the theaters. Now, you are saying because it can be shown in the theaters, the standards are the same, and it can be shown on television.

Mr. Cox. I think there is a difference here. Such a picture is visual, whereas this poem was entirely oral. I think there is a problem with the visual depiction of matters on the air which has not yet been resolved by the Commission or the courts.

I agree with you—I might under certain circumstances, certainly if it were not a paid performance as to which there would be certain

controlled conditions-I would agree that the broadcasting of certain of the films that are now playing in the local theaters raise very serious public interest questions. Certainly if the licensee were to create a pattern of presenting these pictures, I think that the system in this country, the system of broadcasting we have developed, places considerable responsibility on the licensee. He makes the judgment. He is familiar with the local conditions. He knows what it is that he intends to accomplish by the broadcast.

The Commission clearly has no power in advance, if it knew that this was about to happen, to prevent its being broadcast. Once it has happened, the Commission could, under certain circumstances, impose a forfeiture, if we had a rule, or if it violated the law.

If it can't be prosecuted as being obscene, I don't think it can be said to violate the law. We might, in the case of movies, adopt rules as to hours, as to their character, as to their rating under the motion picture code.

Senator PASTORE. Under what authority would you promulgate these rules?

Mr. Cox. I think under the public-interest standard.

Senator PASTORE. What is wrong with having the same rule with regard to this poem?

Mr. Cox. I think the public-interest standard, as applied to a broadcast service, is applied overall. I don't think you can apply the publicinterest standard to say that because one poem was broadcast on one station in California, you automatically deny another community of this service which has been found to be valuable where it is now presented.

Senator PASTORE. You have already said there have been several of them. After all, as we stand here today, we only know of one case, and that is the Pacifica Foundation. We don't know about these other cases. Maybe they have been brought to your attention.

It strikes me that all these complaints have been lodged against Pacifica for some reason.

Mr. Cox. No, we get complaints against other stations. I think it is probably accurate to say that we have more complaints against Pacifica than against other stations.

Senator PASTORE. That is the point I am making.

Mr. Cox. I think a good part of Pacifica's audience listens in order to complain to us.

Senator GURNEY. Wouldn't this enter into your judgment in your licensing in Houston?

Mr. Cox. I'm not sure I heard you.

Senator GURNEY. You said you had more complaints against the Pacifica Foundation than any other radio broadcasters; isn't that correct?

Mr. Cox. Yes.

Senator GURNEY. Wouldn't this enter into your consideration in deciding whether to give Pacifica a new license in Houston?

Mr. Cox. I think the Commission has periodically reviewed these complaints at license renewal time, and has found them to be acceptable, consonant with the public interest. Or it has found that Pacifica had erred in some particular by presenting some item at the time they presented it, and they indicated they would tighten their procedures to try to avoid this in the future.

I think in the nature of the service Pacifica performs, it is bound to tread on the sensibilities of people more than most commercial stations. Many commercial stations operate on the safe assumption that

Senator GURNEY. What is the overall service that they perform? I am curious about that.

Mr. Cox. I tried to describe it earlier.

Senator SCOTT. Which way do you use the word "service," the service they perform?

Mr. Cox. I think it is a true service to the community. I think if you were to examine their program schedule, you would find that 99 percent of it was quite inoffensive, of a high character, and obviously in the public interest.

Within the course of doing this, because they are committed by their charter to a very broad educational effort, they present people all the way from Communists to John Birchers, and they get complaints from each extreme when the other is being heard.

Senator Scorr. It sounds to me that they present dirty language. Mr. Cox. I think that there is some filthy language on this station. I hear, or see, evidence of filthy language on other stations. I wouldn't say "filthy" so much as language that people find offensive.

I think we live in a very diverse country. We have people with highly different degrees of sensibility. We have people who are offended by words that I am sure would not offend you and me. Senator SCOTT. You mean you could use more dirty words if a Washington station gets the license than you could in Houston? Mr. Cox. I'm not sure that follows from what I said, Senator. Mr. LEE. May I interrupt? On the matter of complaints, I indicated there were perhaps hundreds on each incident. I think perhaps I overdid that. I was thinking of a station in New York, WBAI, which broadcast a very blatant anti-Semitic poem. I think the chairman should ask us to prepare for the record whatever we can find. Certainly, on most of these, there were multiple complaints. Whether or not there were hundreds

Senator PASTORE. The thing that is disturbing me here this afternoon is the general attitude. Of course, we haven't questioned all the members of the Commission. There may be others, the chances are, who do not feel exactly as Mr. Cox does, and there may be others who feel the same way.

Today you are expressing an attitude of helplessness with regard to this permissiveness, and obscenity. You are saying you are almost powerless. You are saying here unless the Attorney General can prosecute under the criminal laws, you are almost obliged to renew a license, that you cannot question it, because you are not sure in your minds what obscenity really means. We are losing sight here of commonsense.

We, as grownup people, know what obscenity is. We know what art is, and we know what obscenity is. When you have a station here that puts on a record with four-letter words, and then does it again and again and again, and you come before this committee and say, "We have received more complaints against this particular station than any others, but we renewed their license, or we gave them a new license," that, to me, is permissiveness even on the part of this Commission. And it frightens-it frightens me no end.

It isn't this case alone. I don't think we are going to make over the world, or this society, whether or not we grant this license to Pacifica. But it is the attitude here today, that you all seem to be helpless about what you can do and cannot do in the public interest. And that frightens me. That frightens me.

Senator HART. Mr. Chairman, if you would yield, I would make a point that on the bill that we are considering, S. 2004, if we don't adopt that bill, then public-interest groups can come in at renewal time and promise to do better; cleaner language, nicer pictures. But if we adopt S. 2004, then we are left with what you regard as an unfortunate situation.

Senator PASTORE. Phil, the thing that you forget is it is the same group that will give the license to somebody else that hasn't got the guts to take it away from a violator. That is your proposition. This is the same strong arm of the Government that has within its power life or death. Whether it is for political purposes or not, they have the power of life or death over somebody's license. They are the ones that can take the license away, and they are the ones who can renew the license, and they are the ones that can revoke the license.

You are still talking to the same group of people. To me, it is a question of guts. If anybody has a license and they are not living up to the law, I say to you, refuse to renew it. And the mere fact that you have never done it, to me shows weakness, and not strength. It is no excuse to defeat the bill.

Senator HART. I was just voicing that as an aside, Mr. Chairman. Senator PASTORE. Yours was an aside, but mine was an argument. Senator GURNEY. Commissioner Lee, let me ask you what was the educational program of Pacifica Foundation? As I understand it they have an FM educational station; isn't that right?

Mr. LEE. Yes, sir.

Senator GURNEY. What was this educational program?

Mr. LEE. Actually, in the proceeding here in Washington, whether or not they are an educational station in the true sense, is an issue, and we will adjudicate it. I don't think on the facts as I read them they meet the

Senator GURNEY. They were granted the license in Houston on the basis of their being an FM educational station; isn't that right? Mr. LEE. Yes, that is right.

Senator GURNEY. What educational programs do they run?

Mr. LEE. Well, I don't think that they qualify under our terms of an educational institution, in that they are not affiliated, as far as I know, with educational institutions.

I think, in all fairness, it must be said that much of their programing is very proper and really meets a need. They have some great classical music programs, and so on. I wouldn't want to leave the impression that this is nothing but a dirty, filthy station, but there is enough of it there that I don't think we should renew them.

Senator GURNEY. Do they run any educational programs at all? Mr. LEE. I am not aware of them. Perhaps someone else is. Senator GURNEY. Do you have other instances where you issue educational license to FM stations that are like this that really aren't in the educational business?

Mr. LEE. I couldn't name any. We have a number of FM educational stations that are pretty generally affiliated with the universities. Senator GURNEY. Is this the only instance where a foundation qualifies under an educational license?

Mr. LEE. Yes. I believe that is so.

Senator GURNEY. It is really unique, isn't it?
Mr. LEE. I think it is quite unique.

Senator GURNEY. How did that come about?

Mr. LEE. Well, it started, I think, a little before my time. They came in originally with a programing proposal, either in San Francisco or Los Angeles. They did have an affiliation with the university, I believe, at that time, and on that basis we found them to be educational stations.

Since that time, as we have given other licenses, we have used that original finding to make them qualified as an educational station.

I raised the point as to the fact that, even if they are an educational station in Los Angeles, it doesn't necessarily make them one in Houston or Washington, D.C.

Senator GURNEY. As I understand it, apparently there was an exception perhaps here that they were intended to be a commercial station, but perhaps that wasn't available and they qualified for an educational license; isn't that the fact?

Mr. LEE. I am really not sure, Senator. The original instance was a little before my time. They are the only group educational operation that I know of, by the way. I don't necessarily say that is wrong.

Senator GURNEY. I think Commissioner Cox talked about this briefly but there were many other things, and we didn't get into it. This is not a commercial station. What are Pacifica's sources of finances and funds for keeping it in business?

Mr. LEE. They exist on the basis of a popular subscription, as I understand it. Listeners send their money.

Senator GURNEY. Has the Commission taken detailed evidence on how much it costs to run the operation in New York and the three in California, and how much income comes in?

Mr. LEE. We have not taken detailed information on that point. I think it will be developed in the Washington hearing.

Senator GURNEY. Why wasn't detailed information taken on this long before this?

Mr. LEE. I think that in that era, when nobody else wanted the license, perhaps we were a little too lenient.

Mr. Cox. We have the same financial information from them that we get from all the other stations. We receive form 324's filed by all stations, indicating their revenues and expenses, and these have been filed regularly by Pacifica.

Senator GURNEY. What does it show with respect to Pacifica?

Mr. Cox. I don't recall the figures. It shows they were able to make ends meet. There was a question raised by Commissioner Lee in his dissent in Houston, whether they were going to be financially qualified there.

Senator PASTORE. We will have to interrupt. That was a bell for a vote. Then we will hear from Mr. Burch, after you finish your

sentence.

(Recess.)