[Senate Report 109-210]
[From the U.S. Government Publishing Office]
109th Congress Report
SENATE
1st Session 109-210
_______________________________________________________________________
Calendar No. 352
TRUTH IN BROADCASTING ACT OF 2005
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 967
DATE deg.December 20, 2005.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred ninth congress
first session
TED STEVENS, Alaska, Chairman
DANIEL K. INOUYE, Hawaii, Co-Chairman
JOHN McCAIN, Arizona JOHN D. ROCKEFELLER IV, West
CONRAD BURNS, Montana Virginia
TRENT LOTT, Mississippi JOHN F. KERRY, Massachusetts
KAY BAILEY HUTCHISON, Texas BYRON L. DORGAN, North Dakota
OLYMPIA J. SNOWE, Maine BARBARA BOXER, California
GORDON H. SMITH, Oregon BILL NELSON, Florida
JOHN ENSIGN, Nevada MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia FRANK LAUTENBERG, New Jersey
JOHN E. SUNUNU, New Hampshire E. BENJAMIN NELSON, Nebraska
JIM DeMINT, South Carolina MARK PRYOR, Arkansas
DAVID VITTER, Louisiana
Lisa Sutherland, Staff Director
Christine Drager Kurth, Deputy Staff Director
David Russell, Chief Counsel
Margaret Cummisky, Democratic Staff Director and Chief Counsel
Samuel Whitehorn, Democratic Deputy Staff Director and General Counsel
Calendar No. 352
109th Congress Report
SENATE
1st Session 109-210
======================================================================
TRUTH IN BROADCASTING ACT OF 2005
_______
December 20, 2005.--Ordered to be printed
_______
Mr. Stevens, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 967]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill joint resolution deg. (S.
H.R. deg. 967) TITLE deg. to amend the
Communications Act of 1934 to ensure that prepackaged news
stories contain announcements that inform viewers that the
information within was provided by the United States
Government, and for other purposes, having considered the same,
reports favorably thereon without amendment deg.
with amendments deg. with an amendment (in the nature
of a substitute) and recommends that the bill joint
resolution deg. (as amended) do pass.
Purpose of the Bill
The purpose of S. 967 is to amend the Communications Act of
1934 to ensure that Federal Government-produced prepackaged
news stories contain announcements that inform viewers that the
information within was provided by the United States
Government. The bill will require Federal agencies to provide,
within the text or audio of any prepackaged news story prepared
or produced by that Federal agency and intended for broadcast
or video distribution in the United States, clear notice that
such story was produced by the Federal Government. In turn,
broadcasters, cable and satellite companies would be allowed to
remove or modify such notices only in circumstances to be
determined by the Federal Communications Commission. However,
broadcasters, cable and satellite companies that only utilize
government ``B-roll'' or segments of a video news release
within their own creative work product are not subject to the
disclosure requirements of this bill. The disclosure
requirements are limited to the broadcast or video distribution
of complete, ready-to-use audio or video news segments produced
by the government. The bill, as amended, provides that nothing
in the legislation shall be construed to apply to any lawful
and authorized intelligence activity of the United States
Government.
Background and Needs
Prepackaged news stories are ready-to-use, complete audio
or video news segments designed to fit seamlessly into a
private broadcast. They are essentially the radio or television
equivalent of a government press release. Video prepackaged
news stories, known as video news releases (VNRs), have been
used for decades by both Democratic and Republican
administrations to communicate with the public. Since 1951,
language in yearly appropriations laws has required that
Federal agencies not conceal the government origin of VNRs.
Specifically, appropriations laws have prohibited the use of
Federal funds for covert ``publicity or propaganda'' unless
otherwise authorized by Congress. The provisions included in
appropriations laws are temporary, year-long prohibitions that
expire when the appropriations laws expire.
On May 11, 2005, President Bush signed the Emergency
Supplemental Appropriations Act For Defense, The Global War On
Terror, And Tsunami Relief, 2005, P.L. 109-13 (Defense
Supplemental). A provision in that law required Federal
agencies to disclose the government origin of prepackaged news
stories. Specifically, section 6002 of the Defense Supplemental
provided that, unless otherwise authorized, none of the
appropriated funds may be used by an executive branch agency to
produce any prepackaged news story intended for broadcast or
distribution in the United States unless the story includes a
clear notification within the text or audio of the prepackaged
news story that the prepackaged news story was prepared or
funded by that executive branch agency.
On May 12, 2005, the Commerce Committee held a hearing on
prepackaged news stories. In that hearing, witnesses
representing the broadcast and news distribution industry
expressed concern that S. 967 as originally introduced might be
unnecessary in light of long-standing, self-imposed ethical
guidelines concerning the attribution of third-party sources.
Moreover, the Federal Communications Commission clarified, in a
Public Notice released in April 2005, that disclosure of third
party sources was already required under its rules in certain
circumstances.
The Defense Supplemental expired on September 30, 2005.
That same day, the Government Accountability Office released a
report criticizing the administration for its use of VNRs
without clearly notifying the public of their government
origins. Specifically, the GAO found that since prepackaged
news stories are purposefully designed to be indistinguishable
from news segments broadcast to the public, their broadcast
without attribution to the government makes them no longer
purely factual.
During consideration of S. 967 in Committee, Senator
Stevens offered a substitute amendment that would impose a
disclosure duty on Federal agencies preparing or funding
prepackaged news stories. The substitute amendment is closer to
the prohibition in section 6002 of the Defense Supplemental
than the provisions of S. 967. The substitute requires
government agencies to provide noticewithin prepackaged news
stories (including VNRs) intended for broadcast or video distribution
within the United States. It also directs the FCC to determine under
what circumstances broadcasters, cable and satellite television
companies should be allowed to remove or modify the notices placed in
prepackaged news stories by or on behalf of the Federal agency
preparing or funding them. Senator Lautenberg's second degree amendment
would provide that the new provisions shall not apply to any lawful and
authorized intelligence activity of the United States Government.
Summary of Provisions
S. 967, the Prepackaged News Story Announcement Act, amends
the Communications Act to require prepackaged news stories
produced or funded by, or on behalf of, the Federal Government
to contain a clear disclosure of such stories' government
origins. The bill, as amended, further provides that the
circumstances under which such disclosure may be removed are to
be determined by the Federal Communications Commission. As
explained in the definitions section, the legislation applies
only to a prepackaged news story, not to other individual
segments contained in a video news release. The bill further
provides that nothing in the legislation shall be construed to
apply to any lawful and authorized intelligence activity of the
United States Government.
Section 1 contains the short title of the bill, the
``Prepackaged News Story Announcement Act of 2005.''
Section 2 amends the Communications Act of 1934, by
inserting a new Section 342, ``Announcement of United States
Government Sponsorship of a Prepackaged News Story.''
The new subsection 342(a) requires prepackaged news stories
produced by or on behalf of a Federal agency and intended for
broadcast over the air, or distribution by a ``multichannel
video programming distributor,'' within the United States to
clearly notify the audience that the story was prepared or
funded by the Federal Government. The notice required by
subsection 342(a) must be contained within the text or audio of
the story broadcast or distributed.
The new subsection 342(b) tasks the Federal Communications
Commission with promulgating rules governing the circumstances
under which broadcasters or multichannel video programming
distributors may remove or modify the notification required by
subsection 342(a).
The new subsection 342(c) defines the term ``prepackaged
news story'' as a complete, ready-to-use audio or video news
segment designed to be indistinguishable from a news segment
produced by an independent news organization. It also defines
``multichannel video programming distributor'' to have the
meaning given that term by section 602(13) of the
Communications Act of 1934, a meaning that encompasses cable
television and satellite television providers.
The new subsection 342(d) exempts from the new law any
lawful and authorized intelligence activity of the United
States Government.
Legislative History
The ``Truth in Broadcasting Act of 2005'' (S. 967) was
introduced by Senator Lautenberg on April 28, 2005 and referred
to the Senate Committee on Commerce, Science, and
Transportation. There are nine cosponsors of S. 967, including
six original cosponsors. The original six cosponsors are
Senators Kerry, Clinton, Kennedy, Dorgan, Boxer, and Dayton.
The other cosponsors are Senators Akaka, Feingold, and Corzine.
On October 20, 2005, the Committee considered the bill in an
open Executive Session. Senator Stevens offered a manager's
amendment in the nature of a substitute, and Mr. Lautenberg
offered an amendment to Senator Stevens' substitute. Mr.
Lautenberg's amendment clarified that the requirements of S.
967 would not apply to lawful and authorized intelligence
activities of the United States Government. The Committee,
without objection, adopted both amendments and ordered that S.
967, with the new short title ``Prepackaged News Story
Announcement Act of 2005,'' be reported with the amendments.
Estimated Costs
In compliance with subsection (a)(3) of paragraph
11 of rule XXVI of the Standing Rules of the Senate, the
Committee states that, in its opinion, it is necessary to
dispense with the requirements of paragraphs (1) and (2) of
that subsection in order to expedite the business of the
Senate. deg.
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
November 2, 2005.
Hon. Ted Stevens,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 967, the Prepackaged
News Story Announcement Act of 2005.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas Holtz-Eakin.
Enclosure.
S. 967--Prepackaged News Story Announcement of Act of 2005
CBO estimates that enacting S. 967 would have no
significant impact on the federal budget. Enacting the bill
would not affect direct spending or revenues. S. 967 contains
no intergovernmental or private-sector mandates as defined in
the Unfunded Mandates Reform Act and would not affect the
budgets of state, local, or tribal governments.
S. 967 would amend the Communications Act of 1934 to
prohibit federal agencies from producing prepackaged news
stories without disclaimers that identify the government as the
source. A prepackaged news story is a complete, ready-to-use
news item designed to be indistinguishable from a news story
produced by an independent author or news organization. In
addition, the legislation would require the Federal
Communications Commission to promulgate rules governing when
the government disclaimers can be modified or removed.
The CBO staff contact for this estimate is Matthew
Pickford. This estimate was approved by Peter H. Fontaine,
Deputy Assistant Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
The Federal Communications Commission may issue regulations
to implement the requirement set forth in the reported bill
that announcements be included in broadcasts and video
distributions by parties subject to the Commission's
jurisdiction. The reported bill also requires the Federal
Communications Commission to determine the circumstances in
which the announcements required by the legislation may be
removed or modified. The Commission would be required to
develop regulations to implement these requirements, so
individuals or businesses that broadcast radio or television
programs, or distribute video programming, that is subject to
the legislation would become subject to new or modified
regulations.
ECONOMIC IMPACT
S. 967 would not have an adverse economic impact on the
nation's economy. The Act would require that prepackaged news
stories contain announcements that inform audiences that the
information within was prepared or funded by the United States
Government.
PRIVACY
The reported bill would have no impact on the personal
privacy of U.S. citizens.
PAPERWORK
The reported bill should not significantly increase
paperwork requirements for individuals and businesses.
Section-by-Section Analysis
Section 1. Short title
Section 1 would establish the short title of the bill as
the ``Prepackaged News Story Announcement Act of 2005.''
Section 2. Prepackaged news story announcements
This section would amend the Communications Act of 1934 by
adding a new section 342 to the end of Title III.
A new section 342(a) would require Federal agencies to
include a disclosure within any government prepackaged news
story that is intended for broadcast or video distribution
within the United States, by a broadcaster, or cable or
satellite company, that such prepackaged news story was
prepared or funded by the United States Government.
A new section 342(b) would require the Federal
Communications Commission to promulgate rules on the
circumstances under which the announcement required under the
new Section 342(a) may be removed or modified.
A new section 342(c) would set forth the definitions used
in the bill. This subsection defines ``prepackaged news story''
as a complete, ready-to-use audio or video news segment
designed to be indistinguishable from a news segment produced
by an independent news organization. It also defines
``multichannel video programming distributor'' as having the
meaning set forth in Section 602(13) of the Communications Act
of 1934 (47 U.S.C. 522(13)).
A new section 342(d) would provide that nothing in S. 967
shall be construed to apply to prepackaged news broadcast or
distributed outside the United States with respect to
activities to which Title V of the National Security Act of
1947 relate.
ADDITIONAL VIEWS OF SENATOR LAUTENBERG AND SENATOR KERRY
This legislation makes it clear that the Federal Government
has the legal obligation to identify itself as the source of
prepackaged news stories it has funded or prepared. This law is
necessary to resolve a disagreement between the Government
Accountability Office (GAO) and the Administration on
disclosure requirements when the Federal Government funds or
prepares prepackaged news stories.
On May 19, 2004, GAO ruled that Medicare prepackaged news
stories produced and distributed by the Department of Health
and Human Services (HHS) were illegal covert propaganda because
they did not identify HHS as the source of the news story. On
January 4, 2005, GAO ruled that unattributed prepackaged news
stories produced and distributed by the Office of National Drug
Control Policy (ONDCP) were illegal covert propaganda. In both
cases, GAO found that the misuse of appropriate funds were also
a violation of the Antideficiency Act (31 U.S.C. 1341), which
prohibits expenditures that exceed budget authority, because no
appropriations are available for illegal covert propaganda.
In each case, GAO distinguished a video news release (VNR)
from a prepackaged news story (which is often just one segment
of a VNR). A full VNR may include a prepackaged news story,
video clips or ``B-roll,'' and ``slates'' or ``slides'' with
information on the agency or the program in question, as well
as other promotional materials. GAO took issue specifically
with the prepackaged news stories within the larger VNR.
On February 17, 2005, GAO sent a memo to all Federal
agencies instructing them to identify themselves in all
prepackaged news stories. Then, on March 11, 2005, the Office
of Management and Budget (OMB) and the Department of Justice
(DOJ) sent a memo to all Federal agencies telling them to
ignore the directives in the GAO memo, claiming that agencies
do not need to identify the Government as the source of
prepackaged news stories.
On May 11, 2005, a provision in the Emergency Supplemental
Appropriations Act for Defense, The Global War on Terror, And
Tsunami Relief, 2005, P.L. 109-13 (Defense Supplemental)
imposed a requirement that a prepackaged news story prepared or
funded by a Federal agency include a clear notification that
the agency was the source of the story.
The Defense Supplemental expired on September 30, 2005.
That same day, the Government Accountability Office (GAO)
released a report finding that Department of Education
prepackaged news stories promoting the Administration's ``No
Child Left Behind'' program were illegal covert propaganda.
This was the third such ruling by the GAO against the use of
Government funds for ``covert propaganda'' since May 2004. As
with the previous two violations, GAO also found this misuse of
appropriated funds to be a violation of the Antideficiency Act.
However, as was the case with the other two GAO legal
decisions, the Administration rejected the legal findings.
It is in this context that legislation is necessary to
permanently require a clear notification within a prepackaged
news story produced by or on behalf of a Federal agency that
the story was prepared or funded by the United States
Government.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
material is printed in italic, existing law in which no change
is proposed is shown in roman):
TITLE 47, UNITED STATE CODE
Subtitle III. Special Provisions Relating to Radio
Part I. General Provisions
SEC. ANNOUNCEMENT OF UNITED STATES GOVERNMENT SPONSORSHIP OF A
PREPACKAGED NEWS STORY.
(a) Disclaimer Required.--Any prepackaged news story
produced by or on behalf of a Federal agency and intended for
broadcast over the air or distribution by a multichannel video
programming distributor within the United States shall contain
a clear notification within the text or audio of the
prepackaged news story that the prepackaged news story was
prepared or funded by the United States Government.
(b) Removal of Disclaimer.--The Commission shall
promulgate rules governing the circumstances under which
broadcasters or multichannel video programming distributors may
remove or modify the announcement required under subsection
(a).
(c) Definitions.--In this section:
(1) Prepackaged news story.--The term ``prepackaged
news story'' means a complete, ready-to-use audio or
video news segment designed to be indistinguishable
from a news segment produced by an independent news
organization.
(2) Multichannel video programming distributor.--
The term ``multichannel video programming distributor''
has the meaning given that term by section 602(13).
(d) Intelligence Activities.--Nothing in this section
shall be construed to apply to any lawful and authorized
intelligence activity of the United States Government.