Fred Upton

Mr. UPTON

Mr. UPTON. Mr. Speaker, I yield myself 4 minutes. Mr. Speaker, I rise in support of this manager's amendment offered by me and the gentleman from Massachusetts (Mr. Markey). I want to again thank the gentleman from Massachusetts (Mr. Markey), the gentleman from Texas (Chairman Barton), and the gentleman from Michigan (Mr. Dingell) for their bipartisan cooperation on this amendment, as well as the entire legislation. What this amendment does is it makes seven noncontroversial changes to the underlying bill. First, the amendment clarifies that the liability standard for non- licensees is willful and intentional. Second, the amendment clarifies that for individual non-licensees to be found liable, their indecent statements must have made knowing or having reason to know that the statements would be broadcast. Third, the amendment requires the FCC to look at the impact of a forfeiture penalty on an individual. I want to pay a special tribute to the gentlewoman from California (Mrs. Bono) for her work on these three issues during the committee consideration of this bill. These three changes simply clarify our intent to ensure that performers as non-licensees are treated fairly. During the committee consideration, there were some concerns expressed that the individual-performer liability provisions in H.R. 310 could be used to fine artists that use offensive language when their recordings are played on the radio. The phrase ``willfully and intentionally'' in this amendment is meant to include those situations where an individual intentionally utters material consciously and deliberately which he or she knows or has reason to know will be broadcast. For instance, a live interview of a player at a basketball game or Janet Jackson's performance at the Super Bowl are clear examples where the performer intentionally said or did something knowing it would be broadcast. Alternatively, when an artist records a song in a studio, he or she perhaps has a hope that the song will be broadcast, but does not sing the lyrics with the intent to broadcast at that moment or even knowing that it will be broadcast in the future. Similarly, if an athlete or a coach in the heat of a sporting event, such a baseball player being hit by a pitch, reflexively yells out an obscene, indecent, profane utterance caught by a field microphone, the situation would also not be captured by the willful and intentional standard, as his or her actions were not intentionally done and knowing that they would be broadcast. In addition, the manager's amendment underscores the FCC's requirement that when setting penalties for individual performers, it must look at the ability of that individual to pay, as required by existing law, and the FCC must take into consideration the impact of the forfeiture penalties on that individual. Clearly, not all individuals who may run afoul of the law have the same ability to pay. A pro athlete or a blockbuster recording artist may have significantly greater worth than a struggling artist or college athlete. That is why we require the FCC to factor this in when setting such penalties, and underscore that in this amendment. Fourth, the amendment changes the General Accounting Office to its new name of Government Accountability Office. Fifth, the amendment requires the FCC's annual indecency enforcement report to include data going back to 2000. Sixth, it requires the GAO's indecency enforcement report to include data going back to 2000. Lastly, the amendment requires the FCC to update its broadcast indecency enforcement guidelines at least every 3 years. I want to thank the gentlewoman from Wyoming (Mrs. Cubin) for her work on that issue, I want to thank the gentleman from Massachusetts (Mr. Markey) for his bipartisan cooperation and cosponsoring this amendment with me, and thank the Committee on Rules for making it in order. I would urge all of my colleagues to support it. Mr. Speaker, I reserve the balance of my time.

Mr. UPTON. Mr. Speaker, I offer an amendment.

Mr. UPTON. Mr. Speaker, I yield back the balance of my time.

Mr. UPTON. Mr. Speaker, I just want to remind my colleagues we are not changing the standard; we are simply raising the fines on the existing standard. This is not about ``Saving Private Ryan.'' Those charges were dismissed some time ago. It has aired a number of times. But it is about what some Members have looked at, the transcripts from broadcasts that have been fined, and I would dare to say that there is not a Member of this body who wants some of this filth to ever be said or broadcast again. That is what this legislation is intended to stop, so that when we are listening to the radio or watching TV, particularly with our kids, that they are not going to be exposed to stuff that has been on the books for decades and the courts have affirmed.

Mr. UPTON. Mr. Speaker, I yield 2 minutes to the gentleman from New Jersey (Mr. Ferguson), a member of the subcommittee.

Mr. UPTON. Mr. Speaker, I yield 2 minutes to the gentleman from Illinois (Mr. Shimkus), again a cosponsor of the legislation, very active in pursuing its goal today.

Mr. UPTON. Mr. Speaker, I would just say that the FCC said they were not going to fine them.

Mr. UPTON. Mr. Speaker, will the gentleman yield?

Mr. UPTON. Mr. Speaker, I yield myself 15 seconds. I would just remind my friend in the well that the FCC specifically dismissed complaints against ``Saving Private Ryan,'' and with regards to the ad that was trying to be run by United Church of Christ, that was a first amendment right that the station made themselves. I do not think anyone thought that the FCC would fine them for the airing of that commercial. Mr. Speaker, I reserve the balance of my time.

Mr. UPTON. Mr. Speaker, I yield 2\1/4\ minutes to the gentleman from Florida (Mr. Stearns), a member of the subcommittee and a cosponsor of the legislation. (Mr. STEARNS asked and was given permission to revise and extend his remarks.)

Mr. UPTON. Mr. Speaker, I yield myself 5 minutes. Mr. Speaker, I rise in support of this legislation. I want to particularly thank a number of Members. I want to thank the gentleman from Texas (Mr. Barton). Without his dedicated effort, we would not have this bill through the fast track that we have it today, and his support means quite a bit. I also want to thank my friends on the other side of the aisle. I look at the gentleman from Massachusetts (Mr. Markey), my ranking member on the subcommittee; the gentleman from Michigan (Mr. Dingell) who is on the floor, the ranking member of the full committee. This is a bipartisan effort. I would remind my colleagues that last year this legislation passed 391-22. Out of our committee this last week, it passed 46-2. That is true bipartisan spirit and we are delighted that it is up on the floor as early as it is. A little bit more than a year ago, I introduced similar legislation that had all five FCC commissioners, Republican and Democrat, on board. Each of them had lamented in a very public way that the current level of fines was way too low, and with that we moved the legislation that we introduced a couple of weeks ago. We passed it, as I said, 391-22. The Senate passed similar legislation last year, 99-1. I would note that that one that voted against it wanted the bill to be tougher. In essence, unanimous support. Currently, fines for indecency often go uncollected because the cost for the Department of Justice to collect the fines is often greater than the fines themselves. This is no longer going to be the case under H.R. 310. The current cap for fines is $32,500. To put that into perspective, a 30-second ad during the Super Bowl just a couple of weeks ago cost $80,000 a second, $2.4 million for 30 seconds. What we are talking about today is about the public airwaves which are, of course, owned by the U.S. taxpayer. Using the public airwaves comes with the responsibility to follow the FCC decency standards that apply to programming that airs during the family hours from 6 in the morning until 10 at night, the likeliest time that kids might be tuned in. When broadcasters sign on the dotted line to receive their licenses, they agree to follow those decency standards, and I would note that the courts, including the highest in the land, ruled in support of that standard. There has to be a level of expectation when a parent turns on the TV or the radio between those family hours that the content will be suitable for children. A parent should not have to think twice about the content on public airwaves. Unfortunately, the situation is far from reality. I would note very strongly that we do not change the standard in this legislation. We raise the fines. I have asked for the FCC to look for the transcripts of what they have fined. I am not going to put this in the Record under unanimous consent or any other, but I will tell any Member that is here or watching on the floor, if you want to see what the FCC has fined, I have got the transcript here and it is awful, it is vulgar, it has no place on the public airwaves, and I would defy anyone to come over and look at the reading of these transcripts and say that should not be banned. It should be. And broadcasters who violate the standard ought to be fined and it ought to be more than a slap on the wrist, and that is exactly what this legislation does. By significantly increasing the fines for indecency, the fines will be at a level where they no longer are going to be ignored and parents across the country can rest easy. With the passage of this legislation I am confident that broadcasters will think twice and, by the way, the talent themselves as well, the disk jockeys or anybody else, will think twice about pushing that envelope because they are going to be liable as well, and ultimately our kids are going to be better off for it. Mr. Speaker, I rise in strong support of H.R. 310, the Broadcast Decency Enforcement Act of 2005. At the outset, I want to thank Chairman Barton, Ranking Member Dingell, and Mr. Markey for their tremendous bipartisan cooperation on this bill. I also want to thank those Members of the House who have cosponsored the bill. I would tell my colleagues that H.R. 310 mirrors the bill which, last year, the House passed by a vote of 391-22. For the record, we introduced this bill last year weeks before the infamous Super Bowl halftime show featuring Janet Jackson and Justin Timberlake. I was motivated to introduce this bill in large part because I read the transcripts of those broadcasts which the FCC found to contain indecent content. When I read some of those transcripts, I was absolutely sickened and shocked by the filth which had passed over the public's airwaves. Today, I have with me every broadcast indecency Notice of Apparent Liability and Forfeiture Order issued by the FCC since 2000. Each order contains a transcript of the offending content. If any Member is uncertain about the merit of what we are doing here today, I would urge them to read these transcripts. I am confident that you will be as sickened as I am. This legislation would significantly enhance the Federal Communications Commission's broadcast decency enforcement authority. As stewards of the public's airwaves, radio and television broadcasters have an obligation to abide by the decency laws which have been on the books for decades and have been upheld in the courts. Most of our local broadcasters act responsibly, but there are still too many who continue to push the envelope of indecency during the hours of 6 a.m. to 10 p.m., when children are most likely to be in the audience. I would note that some broadcasters have taken to heart the seriousness of this debate and, on their own, have adopted internal policies to better control what goes over the public's airwaves over which they have stewardship. Clear Channel's ``zero tolerance'' policy as part of its ``Responsible Broadcast Initiative'' is one such example of this good corporate citizenship. But for those broadcasters who continue to act irresponsibly, the FCC needs adequate authority to enforce the law, and this bill would deliver that. Currently, the maximum fine which the FCC can impose for violations of the decency laws is $32,500 per violation, which, to some broadcasters, is merely the ``cost of doing business'' and, as such, is hardly a deterrent. H.R. 310 would increase the maximum fine to $500,000 per violation. In addition, under current law, the FCC may hold a license revocation hearing for any broadcaster who is found liable for an indecency violation. However, the FCC has never held such a license revocation hearing. H.R. 310, among other things, would require the FCC to hold a license revocation hearing for any broadcaster who has been found liable for three indecency violations; this is the so-called ``three strikes'' provision. Importantly, in order for a ``strike'' to count toward the three strikes triggering a license revocation hearing under the bill, each finding of liability must have gone through an exhaustive legal process--all the way to final judgment. This is an important element to protect broadcasters' legitimate due process rights. Also, it is important to note that this provision does not require the FCC to revoke the license of a broadcaster after the third strike, it merely requires a hearing to consider the matter with no prejudice toward the outcome of such hearing. Of course, under current law, the FCC can hold a license revocation hearing after the first strike, second strike, or third strike, so all this provision does is require, at a minimum, that such a hearing is held after the third strike. Other provisions in the bill would: Ensure that the FCC, when setting penalties, takes into consideration the degree of culpability of the violator, whether the violator is a company or individual, and if it is a company, the size of the company and market served. Permit the FCC to fine an individual on the first indecency offense. Require the FCC to complete action on indecency complaints within 180 days. Force the FCC to take indecency violations into account during license application, renewal and modifications, and Compel the FCC to report to Congress annually regarding the agency's broadcast decency enforcement activities. This bill significantly strengthens the FCC's enforcement authority, but does not change the underlying broadcast indecency standard which has withstood judicial scrutiny throughout the decades. Later in this debate, I, along with my colleague Ed Markey, will be offering a bipartisan manager's amendment, which makes some non-controversial changes to the bill, in large part clarifying our intent in a number of areas. But for now, I will simply close by urging my colleagues to support the bill and the manager's amendment which will be offered to it. Mr. Speaker, I include for printing in the Congressional Record the statement of administration policy from the administration in support of this legislation. Executive Office of the President, Office of Management and Budget, Washington, DC, February 16, 2005. Statement of Administration Policy h.r. 310--broadcast decency enforcement act of 2005 (rep. upton (r) michigan and 56 cosponsors) The Administration strongly supports House passage of H.R. 310. This will make broadcast television and radio more suitable for family viewing by giving the Federal Communications Commission (FCC) the authority to impose stiffer penalties on broadcasters that air obscene or indecent material over the public airwaves. In particular, the Administration applauds the inclusion in the bill of its proposal to require that the FCC consider whether inappropriate material has been aired during children's television programming in determining the fine to be imposed for violations of the law. The Administration looks forward to continuing to work with the Congress to make appropriate adjustments to the language of the bill as it moves through the legislative process. Mr. Speaker, I reserve the balance of my time.

Mr. UPTON

Mr. UPTON. Mr. Speaker, I rise today to pay tribute to the heroic men and women of the 415th Civil Affairs Battalion of the U.S. Army Reserve who have recently returned home after serving their country in Iraq. The sacrifices that these heroes made to protect and secure our country will never be forgotten and we are forever in their debt. The 415th Civil Affairs Battalion is based out of Kalamazoo, Michigan with soldiers coming from throughout the Midwest. Over the last 7 years this battalion has been deployed five times, and is considered to be one of the most deployed battalions in the active or reserve of the Army. During their time in Iraq these selfless individuals rebuilt schools, worked with the creation of water treatment plants and Iraqi hospitals. I would also like to extend my deepest sympathy for the loss of two of their comrades, SPC Nichole Frye and CPT Paul Cassidy. They will always remain in our memories and their families will be in our thoughts and prayers. With our forces fighting overseas today, we are vividly reminded of the debt of gratitude we owe our men and women in uniform who serve our country. The 415th Civil Affairs Battalion is a glowing example of the greatness of our forces and on behalf of the Sixth District of Michigan; I would like to extend my thanks and appreciation for their service.

Mr. UPTON

Mr. UPTON. Mr. Speaker, I rise today to pay tribute to Helen Mayhak who regretfully passed away recently at the age of 91. A dedicated and selfless woman, Helen's charity and work throughout the community made Southwest Michigan an even greater place to live and grow. For the last 40 years Helen served the Hartford community as township clerk, making her one of Michigan's longest-tenured officials. A lifelong resident of Berrien County, Helen was an active member in her community. Whether she was serving hot lunches to students in our public schools, working with the Boy Scouts of America, or assisting in our local hospitals, Helen did her part to improve the lives of everyone she encountered. As a member of the Van Buren Republican Party, she was honored as the Van Buren Republican of the Year. Helen will be remembered for her commitment to the betterment of the lives of those she served. We will certainly miss her enthusiasm and passion that she brought to her work each and every day. On behalf of the Sixth District of Michigan, our prayers and sincere regards go out to Helen's family and friends--she will certainly be deeply missed.

Mr. UPTON

Mr. UPTON. Mr. Speaker, I rise today to pay tribute to the Honorable Carolyn H. Williams, Judge of Probate for the Kalamazoo County 9th Circuit Court, who is approaching the end of a long and distinguished career of public service. A dedicated and committed individual, Judge Williams has served the communities and families of Southwest Michigan for the last 18 years. Through her leadership and enthusiasm to her profession, Judge Williams has helped to make our corner of Michigan an even better and safer place to live and grow. Judge Williams has long been known for her ability to motivate and inspire young people who for some reason or another end in her court. Her evenhandedness and dedication to fairness have followed her throughout her career. No matter how difficult a case may be, Judge Williams always presents a voice of calm and this ability shines through to the individuals before her. Judge Williams has been involved in many facets of our local and state community. Over the years she has served as Co-Chair of Kalamazoo Healthy Futures Initiative, President of Michigan Probate Judges Association, Chair of Kalamazoo Children and Family Consortium, and Greater Kalamazoo United Way Board of Directors. She has also received many accolades including, YWCA Woman of Achievement, Kalamazoo Rotary Red Rose Citation, and Glass Ceiling Award of Greater Kalamazoo Network. Our community is forever in her debt. There is no question that Judge William's passion for the law and betterment of society will be greatly missed. Her contributions to the improvement to our way of life have been immense. I wish Judge Williams and her family all the best in retirement. Although she is leaving the Court, there is no doubt that her life's work of helping and assisting children and families will continue. On a personal note, I have known Judge Williams and her family for many years. There's never been a time that I haven't been impressed with her style and grace as she has looked to follow the law in making our community a better place. Her legal peers know, they have to be prepared as they enter her courtroom. She is deeply respected by all.

Mr. UPTON

Mr. UPTON. Mr. Speaker, I rise today to honor and congratulate the City of Niles, Michigan for the dedication of its downtown ``streetscape'' project. Over the past two years countless individuals tirelessly worked to bring this project to this remarkable pinnacle. With the addition of new streetlights, new planters, new patterned filled sidewalks, new drinking fountains, new benches, and new trash receptacles, the folks of Niles now have a tremendous downtown to be proud of. I had the great privilege of recently visiting the new streetscape and it is terrific. The finishing of the ``streetscape'' couldn't have come at a more appropriate or meaningful time as families and friends come together to celebrate the holidays. Volunteers have diligently worked stringing garlands along fences, threading strands of lights into the trees, and placing ribbons and wreaths on the new historic streetlights, all in an effort to make the downtown ready for its holiday celebration. Southwest Michigan and especially the folks of Niles truly have a magnificent historic downtown to cherish for years to come. On behalf of the Sixth District of Michigan I would like to especially pay tribute and give thanks to everyone who volunteered and worked on preserving and beatifying this great city.

Mr. UPTON

Mr. UPTON. Mr. Speaker, I thank the gentleman for the time, and I commend him for his excellent work on getting things done on this vital issue. Being one of the last speakers, I know a lot of things have been said about this bill. I do not want to take too much time to reiterate some of them, but let me tell my colleagues what this bipartisan agreement does. It improves communications between parents and appropriate school personnel related to the development of the individual education plan. It reduces the number of reevaluations required for students whose disability does not change as they age and progress through school. They ensure that the Federal dollars for IDEA flow to the local districts and cannot be diverted for other State purposes. Very important. Continues to send the majority of Federal funds to local school districts where children are served. It protects parents from being forced to medicate their children. The NCLB ensures, of course, that all children will be taught by highly qualified teachers. All children need to be taught by highly qualified teachers, and special education teachers are particularly in demand. To meet that goal, the NCLB is providing dramatic funding increases for teacher quality grants, and funds can be used for training and professional development specifically for special education teachers. Two other things about this bill today that have not been said. The first is that it takes a major issue off the front burner as this committee works to help our kids in the next Congress so that we can focus on higher education and Head Start. This issue now is behind us, and to do it in the waning hour is a terrific accomplishment not only for the committee but for every Member, particularly my chairman. For the gentleman from Ohio (Mr. Boehner), my chairman, this is always a very tough weekend for him. It is the weekend that the Wolverines beat the Ohio State Buckeyes, and he is usually in a very foul mood about four o'clock tomorrow afternoon. He will be very happy today with this passage, and I am sorry that he will be so unhappy tomorrow with the score put up on the board. God bless the Wolverines.

Mr. UPTON

Mr. UPTON. Mr. Speaker, I rise today to pay tribute to John La Montagne, Ph.D., Deputy Director of the National Institute of Allergy and Infectious Diseases, who died suddenly on November 2, 2004. He was a true public servant who worked tirelessly to improve public health in the United States and across the world. He is sorely missed in the public health community, by Elaine, his beloved wife of 37 years, his family, and the many persons in his community who were blessed to be able to call him friend and know his warmth, compassion for others, humor, and quiet modesty and dignity. Dr. La Montagne's contributions to the national and international effort against infectious diseases are remarkable. Trained as a microbiologist, Dr. La Montagne was a leader in the effort to develop a safer pertussis vaccine and new vaccines against childhood diarrhea and pneumonia. He guided the National Institute on Allergy and Infectious Disease's response to the emerging AIDS crisis and led the effort to respond to severe respiratory syndrome within months of the first outbreak. Globally, he played a central role in the organization of the Multilateral Initiative on Malaria. He served as a member of the Scientific Advisory Groups of Experts on Vaccines and Biologicals as well as for Vaccines and Immunization for the World Health Organization. He chaired the WHO Task Force on Strategic Planning for the Children's Vaccine Initiative, advised the Pan American Health Organization on its programs in vaccine research implementation, and served as a member of the board of the Global Alliance for Tuberculosis Drug Development. As an influential contributor to the field of infectious diseases, Dr. La Montagne delivered many major lectures all over the world. He received many prestigious awards for his scientific accomplishments, including the Public Health Service Special Recognition Award for leadership in childhood vaccine research programs, the Surgeon General's Certificate of Appreciation, the Presidential Meritorious Executive Rank Award, the Distinguished Executive Award for his work in the areas of infectious diseases research of global health relevance, the Secretary's Award for Distinguished Service for leadership of acellular pertussis vaccine trials, and most recently the Secretary's Award for Distinguished Service for design and implementation of critically important biodefense strategies. As Dr. Zerhouni, the Director the National Institutes of Health said, ``Personally, he was a dear friend and one of the finest people I have ever known. Professionally, in an NIH career spanning nearly thirty years, his leadership and commitment to improving global health were remarkable. His generosity, wit, even-handedness and kindness made him a friend to all who knew him. He will be sorely missed.'' On November 2nd, our country and the world lost a great and good man.

Mr. UPTON

Mr. UPTON. Mr. Speaker, I rise today to pay tribute to John M. (Mike) Henry who is retiring after a long and distinguished career of public service. A dedicated and selfless individual, Mike has served as County Coordinator for Berrien County for the past sixteen years. During his tenure, Mike assisted the citizens of Southwest Michigan in a number of capacities, all with great distinction. Since 1988, Mike's contributions to our community have been tremendous. He has consistently received accolades and recognition for his inspired work. During his time as County Coordinator, Mike crafted, managed and executed budgets exceeding $2 billion, had the unique ability to manage large sums of public funds--always meeting the highest level of auditing standards, and exhibited great competence and success in working with the legislative, executive, and judicial branches of government. In addition to his remarkable service to Berrien County, Mike also served his country with great distinction. He served in the U.S. Army for 20 years, including two tours in Vietnam, flying attack helicopters. During his extraordinary years of service, Mike was awarded with, among others, the Purple Heart, the Bronze Star, and the Meritorious Service Medal. Our community is in debt to Mike for his continued public service since 1988. I wish him and his family all the best in retirement. His service will be truly missed by the folks in Southwest Michigan.

Mr. UPTON

Mr. UPTON. Mr. Speaker, as we come together as a nation to celebrate Veteran's Day, I would like to honor two American patriots who are receiving long-overdue medals commemorating their service to our country. The sacrifices that these heroes made to protect our country and defend freedom will never be forgotten. Mr. David Matthew Bielski, a Vietnam War veteran from Kalamazoo, Michigan, has been awarded with the Silver Star and the Army Commendation Medal. From April 25th to April 26th, 1968, in the A Shau Valley of Vietnam, David gallantly fought enemy soldiers, and located trapped and wounded American troops. During his service, David was wounded three times, which he received the Purple Heart. In addition to these two high honors, David has also been awarded with the Vietnam Service Medal with 4 Bronze Service Stars and the Good Conduct Medal. Mr. Miland W. Bills, a World War II veteran from Kalamazoo, Michigan, has been awarded with the POW Medal. During his service to our country, Miland was a POW in Germany from December 31, 1943 to May 3, 1945. In addition to the POW Medal, Miland has also received the Air Medal, Good Conduct Medal, American Defense Service Medal, European-African-Middle Eastern Campaign Medal with 1 Bronze Service Star, World War II Victory Medal, and the Honorable Service Lapel Button, WWII. The sacrifices that these two individuals gave to our country are immeasurable--they both answered their country's call to serve with great honor. I wish I could have been present to celebrate these awards with both Mr. Bielski and Mr. Bills. However, on behalf of the Sixth District of Michigan, I would like to extend my greatest wishes and tribute to these valiant heroes.

Mr. UPTON

Mr. UPTON. Mr. Speaker, I regret to inform the House that during the October break, a great American, the Reverend Doctor Bobby Joe Tolbert passed away. His memorial service was held October 12th at the Bethel Baptist Church in Three Rivers, Michigan. Rev. Tolbert was a strong man of faith and he was a pillar of strength in St. Joe County. He was respected by all and made a difference for thousands--whether it was thru his service on the school board, pulpit, business board member, Dad, and husband. All that knew him miss him but know he is now praying for us. I ask that the Celebration of Life obituary be printed in the Record. A Celebration of Life Dr. Bobby Joe Tolbert was the fourteenth child born to the union of Woodie and Jatie Tolbert in Montevello, Alabama. He was preceded in death by both parents and nine siblings; Woodie, Jr., Madelyn McComb, Andrew Tolbert, William Tolbert, Lonnie Tolbert, Rosie Bell Tolbert, Georgia Harris, Lois Mays, and Earlene Williams. Dr. Tolbert received his early education and confessed his faith and hope in God in Montevello. As a young man, Dr. Tolbert moved to Chicago, Illinois where he played professional baseball in the Negro American League. From there he entered the White Sox Organization, playing in the Minor Leagues for the Kansas City Monarchs. He attended Cortez Peters Business College where he met his loving and devoted wife. This union was blessed with two sons Darryl Wayne and Reginald Fitzgerald. Under the mentoring of his father-in-law, Reverend F.L. Porter, Sr., he received his call to the ministry--thereby moving from the ball team to ``God's Team.'' Desiring to prepare for the ministry, he matriculated to Chicago Baptist Institute, De Paul University and he received an Honorary Doctor of Divinity Degree from Tennessee School of Religion, Memphis, Tennessee. Dr. Tolbert was called to the pastorship of Bethel Baptist Church in Three Rivers, Michigan over thirty-six years ago, where he served as a steadfast and devout leader of God's people until he went home to be with the Lord. Under his charge, they built a new church edifice; he developed and built a Recreation and Learning Center; and he set up a College Scholarship Program for underprivileged students. In addition to all of Dr. Tolbert's spiritual endeavors, he made a lasting impact on the whole city of Three Rivers. His civic activities over the years of dedicated service include: Three Rivers Community Chest Board, St. Joseph County Mental Health Board, President of Three Rivers Ministerial Association, Sixteen years as President of the Three Rivers Branch NAACP, Sixteen years on the Three Rivers Hospital Authority Board, Kalamazoo/St. Joseph County Private Industry Council (five years), Three Rivers Community School Board of Education (five years), two of those years as President. Dr. Tolbert participated in the organization and implementation of the Biddy Basketball program (now called Junior Pro), and Fraternal Order of Police Baseball Program which he coached for five years. As a member of the Civitan Service Club, he helped organize the first youth chapter of Civitan. Dr. Tolbert served on the Three Rivers School Board Committee for the building of Three Rivers Middle School, and many other advisory committees. Pastor Tolbert has supported the total community, all while serving his people in the Pastoral Ministry position. Dr. Tolbert's life work centered on his deep commitment to do God's will as a spiritual leader, his family and his community. He was a man of faith, integrity, and deep conviction. The legacy he has left will be a guiding force for countless numbers. His memory, the lessons he taught and the love he shared is motivation for us to continue to carry the torch and make this world a better place. He leaves to cherish his memory and celebrate his life: his beloved wife of forty-five years--Henri'Etta; two sons-- Darryl Wayne (Connie) of Flint, Michigan and Reginald Fitzgerald (Victoria) of Jacksonville, Florida; six grandchildren--Wayne Tolbert, Daniel Tolbert, and Dylan Tolbert of Three Rivers, Michigan and Jessica Tolbert, Brittany Marie Tolbert, and Joshua Tolbert of Jacksonville, Florida; four sisters--Mary Ella Bender of Montgomery, Alabama, Ethel Crenshaw (John) of Chicago, Illinois, Helen Tinker of Chereville, Indiana, and Wilma Abrams (Walter) of North Chicago, Illinois; a host of nieces and nephews; a very special friend, Dr. Leroy Shelton; adopted parents, Dr. W.G. and Mary Terry; his wonderful and loving Bethel Church Family; and a countless number of friends.

Mr. UPTON

Mr. UPTON. Mr. Speaker, I rise today to commemorate the National Hunger and Homelessness Awareness Week and to pay tribute to the countless shelters and staffs throughout the country who tirelessly work to address this ever-growing problem. Throughout our nation help is increasingly needed to create safe places for people to call home. The face of homelessness does not have an age, race, or creed. Over one million of our nation's homeless are children and families comprise of nearly 40 percent of the entire homeless population. There is no question that homelessness is a serious problem, and we must ensure that our shelters are provided with the necessary assistance. One particular shelter that is truly making a difference is the Emergency Shelter Service Inc., of Benton Harbor, Michigan. The service, care, and opportunity that this shelter provides for the homeless folks of Southwest Michigan is tremendous. I recently had the chance to visit with the staff and residents of the shelter. It was heartwarming to see firsthand, individuals getting back on their feet, ready to start anew. The shelter provides the helping hand that many folks need. The nine-bedroom shelter, a 100-year old house along Pipestone Street, currently houses 35 people, many of which are children. Residents stay for a maximum of 30 days, and the shelter staff work with them to find affordable, appropriate housing. I am pleased to report that the top floor of the house was recently insulated for the winter which will allow a few more people to have shelter during the coldest months of the year. But the unfortunate reality is that more people seek assistance than the shelter can provide for, and folks seeking a warm bed and a roof over their heads must find shelter elsewhere. On behalf of the Sixth District of Michigan, I pay tribute to the great service of this admirable shelter. I commend the selfless efforts of Alysia Babcock and her staff who dedicate themselves to provide a safe haven for those in need. Southwest Michigan is better off for their efforts. As we approach the holiday season, it is vitally important that our communities and cities get involved to raise awareness and work to combat the problems of hunger and homelessness. Any contribution to the Benton Harbor shelter will be greatly appreciated, whether it be a blanket, some food or even a couple of dollars. Even the smallest donation makes an impact.

Mr. UPTON

Mr. UPTON. Mr. Speaker, I would like to submit the following Remarks for the Record. We have before us H.R. 4518, the ``Satellite Home Viewer Extension and Reauthorization Act of 2004'' (SHVERA). H.R. 4518 reauthorizes certain expiring communications and copyright act provisions that govern the retransmission of broadcast television signals by direct broadcast satellite (DBS) providers such as DirecTV and EchoStar. It also modernizes other provisions to enhance consumer choice, increase parity between satellite and cable operators, and further promote competition. Because the bill implicates both communications and copyright issues, the House Energy and Commerce Committee and the House Judiciary Committee have worked closely in drafting the legislation. Indeed, pursuant to a compromise between the House Energy and Commerce Committee and the House Judiciary Committee, H.R. 4518 has now been amended to combine its copyright provisions with the Communications Act provisions of H.R. 4501. H.R. 4501 resulted from an extensive examination of satellite television issues in the House Energy and Commerce Committee. The Subcommittee on Telecommunications and the Internet held an oversight hearing on March 10, 2004, and a legislative hearing on April 1, 2004. The Subcommittee then marked up legislation on April 28, 2004, and the full Committee marked up legislation on June 3, 2004. That legislation became H.R. 4501. The Committee filed a report on H.R. 4501 (H. Rept. 108-634) on July 22, 2004. What follows is a section-by-section analysis of some of the Communications provisions in Title II of H.R. 4518, as amended, that have changed from the provisions that originated in H.R. 4501. Mr. Barton, Chairman of the House Energy and Commerce Committee, has also addressed some of the changes. Section 202. Cable/Satellite Comparability Section 340(f) creates a mechanism to enforce the new provisions regarding satellite delivery of significantly viewed signals. Under section 340(f)(1), the FCC may issue a cease and desist order if it finds in response to a complaint that satellite operators are carrying broadcast signals in violation of Section 340. If a broadcast station seeks damages, section 340(f)(1)(A) authorizes the FCC to award the station up to $50 per subscriber illegally served, per station illegally carried, per day of the violation if the FCC finds that the satellite operator did not have a good-faith belief that provision of the signal was lawful. Conversely, if a broadcaster seeks damages and the FCC finds that the broadcaster's claims were made in bad faith, section 340(f)(1)(B) allows the FCC to award the satellite operator up to $50 per subscriber, per station, per day that the broadcaster alleged the satellite operator was serving in violation of Section 340. If the broadcaster does not seek damages, however, the FCC may not grant damages to either the broadcaster or the satellite operator. Section 340(f)(2) gives the FCC 180 days from the submission of a complaint to render a decision. If the pleadings indicate that material facts underlying the case are subject to genuine dispute, the FCC may--but is not required--to hear witnesses. Section 340(f)(3) makes clear that an FCC proceeding under Section 340 is available in addition to any remedies that may be available under the Copyright Act. For example, a broadcaster who also holds copyrights in the programming it carries might bring a claim before the FCC if it believes a satellite operator has carried a signal in a way that violates the Communications Act conditions for providing significantly viewed signals, as well as a suit in court if it believes that the same carriage also violates the terms under which a compulsory license is available under the Copyright Act. Section 340(f)(4) makes clear that any action or inaction by the FCC in response to a section 340 complaint shall have no bearing on a copyright suit, and that filing a section 340 complaint with the FCC is not a prerequisite for filing a suit in court alleging that carriage of a purportedly significantly viewed signal has violated a copyright. Section 340(g) requires satellite operators to give local broadcasters 60 days notice before retransmitting into a market the signal of distant stations that are significantly viewed over the air in the local market, and to list on their web sites the significantly viewed signals they carry. This provision is intended to help make consumers aware of what signals the satellite operators are offering. It is also intended to help local broadcasters monitor satellite compliance with the conditions SHVERA creates for the provision of significantly viewed signals. Section 340(h)(1) gives the FCC until April 30, 2005, to revise its rules so that a network station may elect ``carry-one, carry-all status'' from a satellite operator on a community-by-community basis within a local market. Under current law, when a satellite operator offers local-into-local service in a market, the local broadcasters may choose between carry-one, carry-all status and retransmission consent. If the local broadcaster elects carry-one, carry-all status, the satellite operator must carry the station, but the station is not entitled to compensation. If the station chooses retransmission consent, the broadcaster can try to negotiate for compensation, but runs the risk of not getting carried at all. Because cable systems are subject to local franchising, each community within a local market generally has a separate cable system. If a cable system is carrying a significantly viewed signal in a community, a local broadcaster of the same network can elect must-carry for that system, but still negotiate retransmission consent for cable systems elsewhere in the local market where no significantly viewed signal for the same network is being carried. Because satellite operators have a nationwide--rather than local- franchise-based--service area, however, local broadcasters ordinarily must choose between carry-one, carry-all status and retransmission consent as an all-or-nothing proposition throughout the entire local market. To accommodate the new significantly viewed authority for satellite operators and to recreate, as best as possible, a similar bargaining framework for local broadcasters as exists with cable systems, section 340(h)(1) allows a local broadcaster to elect carry- one, carry-all status in communities with a significantly viewed signal from the same network, while continuing to negotiate retransmission consent in other communities in the market. To ease the administrative burden on the satellite operator, section 340(h)(2) specifies that the community-by-community elections within a local market shall take place in a unified negotiation between each satellite operator and broadcaster. There is no particular time limit on the negotiation. Nor must it take place in one sitting. The broadcaster shall, however, ``lay all its elections on the table at once'' so that the satellite operator can see the entire picture in anticipation of any retransmission consent negotiations that may be necessary in the communities where the broadcaster does not elect ``carry one, carry all.'' To facilitate the community-by-community election process, section 340(h)(3)(A) gives the FCC until April 30, 2005, to revise its rules to require satellite operators to notify broadcasters in advance of any communities in which they intend to carry significantly viewed signals. The satellite operators are permitted to carry significantly viewed signals only in communities for which the satellite operators provide such notice. Section 340(h)(3)(B) recognizes that a satellite carrier could begin importing a ``significantly viewed'' signal after the expiration of a long-term retransmission consent contract but before the next three-year election cycle would allow the television station to choose between retransmission consent and carry one, carry all on a community-by-community basis. Consequently, section 340(h)(3)(B) allows a broadcaster to choose between retransmission consent and carry one, carry all on a community-by-community basis for any portion of the three-year cycle not covered by an existing retransmission consent agreement. One way the FCC might implement section 340(h)(3) for a station that entered into a retransmission consent agreement before the effective date of the Act, and that expires before the end of 2005, would be to require the satellite operator to send the station, by certified mail, at least 60 days before the agreement expires, the required notification for any period between the date of expiration of that agreement and December 31, 2005. If the satellite carrier gives that notice, the station could then, within 30 days of receipt, choose retransmission consent or mandatory carriage for those communities covered by the notification for the period between the date of expiration of the agreement and the end of 2005. For existing retransmission contracts that expire later but between election periods under 47 C.F.R. 76.66, the FCC could require the satellite carrier to provide the station by certified mail, at least 60 days before the election date under section 76.66 that immediately precedes the expiration date of the contract, the required notification for any period between the date of expiration of the agreement and the end of the next three-year election cycle under section 76.66. If the satellite carrier gives that notice, the station could then, on the same schedule provided under section 76.66, elect retransmission consent or mandatory carriage for those communities covered by the satellite carrier's notification for the period between the date of expiration of the agreement and the date of expiration of the next three-year election cycle. Retransmission consent contracts entered into after the effective date of the Act will not be affected by this harmonization provision, because negotiators will be able to take into account the possible importation of significantly-viewed stations in the future. Section 203. Carriage of Local Stations on a Single Dish Section 203(b)(1) of the bill amends sections 338(a)(1) and (a)(2) of the Communications Act (47 U.S.C. 338(a)(1)-(2)) to make clear that the FCC may enforce satellite operators' carry-one, carry-all obligations. The Communications Act currently grants the FCC authority to enforce cable operator's must-carry obligations to carry all local broadcast stations upon request. There apparently is some ambiguity regarding the FCC's authority to enforce satellite operators' analogous carry-one, carry-all obligations. Section 203(b)(1) of the bill is intended to remove any doubt that a carrier can seek enforcement from the FCC under the Communications Act, in addition to any remedies it may have in court under the Copyright Act. Section 203(b)(1) of the bill also adds section 338(a)(3) of the Communications Act (47 U.S.C. Sec. 338(a)(3)) to clarify that satellite carriage of low-power television stations is permissive, not mandatory. Section 104 of the bill grants satellite operators a compulsory copyright license to carry low-power stations. Section 338(a)(3) of the Act, as amended, makes clear that carriage of such stations does not fall within the carry-one, carry-all requirements of Section 338. Sections 203(b)(2) and (b)(3) of the bill make conforming changes to the Act to implement section 203(b)(1) of the bill, and to define ``low power television station'' for purposes of that section. Section 204. Replacement of Distant Signals with Local Signals Section 204 of the bill amends section 339 of the Communications Act (47 U.S.C. Sec. 339) to require a satellite operator to stop providing distant signals of a network to certain subscribers in a market once the operator begins providing local signals of that network in that market, absent a waiver from the affected network station. It does, however, permit certain subscribers to continue receiving distant signals, and allows future distant signal subscribers in non-local- into-local markets to continue receiving such signals under certain circumstances. Section 204 does not apply to carriage of distant signals from non-network stations. New section 339(a)(2)(A) requires certain grandfathered subscribers to choose between receiving a distant and a local signal of a network. Under SHVIA, some households that can receive a ``Grade B'' intensity over-the-air signal from a local network affiliate but not a ``Grade A'' signal qualify as ``unserved'' by that network because of a grandfathering provision in the Copyright Act (17 U.S.C. Sec. 119(e)). These grandfathered customers are sometimes referred to as ``Grade B doughnut'' households. The grandfathered status of these subscribers is set to expire at the end of this year. Under section 339(a)(2)(A), once a satellite operator makes the local signal of a network available under section 338 to customers receiving the distant signal under the Grade B doughnut provisions, the customers must choose between the local signal and the distant signal. They may continue to receive the distant signal if they elect to do so, but the subscribers may not receive both the distant and local signals of the network. Customers who were eligible for distant signals under the Grade B doughnut provisions but were not receiving such signals under those provisions on October 1, 2004, will no longer be eligible for such grandfathering. Thus, the universe of grandfathered households is fixed as of that day and cannot be expanded thereafter. New section 339(a)(2)(B) allows a satellite operator to provide both a local and a distant signal of a network to a subscriber who is unserved over-the-air by a Grade B signal of the network's local affiliate, so long as the satellite operator was offering the local signal of the network pursuant to section 338 by Jan. 1, 2005, and complies with certain notice obligations. If the satellite operator was not offering the local signal of the network pursuant to section 338 by Jan. 1, 2005, the satellite operator may provide both the distant and local signals to the subscriber only if the subscriber sought to subscribe to the distant signal before the satellite operator made the local signal available, and the satellite operator meets certain notice obligations. New section 339(a)(2)(C) provides that a satellite operator may not provide a signal of a distant affiliate of a network to a consumer if the consumer is not lawfully receiving the signal from the satellite operator on the date of enactment of SHVERA and the consumer seeks to receive the distant signal after the satellite operator began making the local signal of that network available in the market. New section 339(a)(2)(D) allows a local affiliate to waive any of the limitations in section 339(a)(2) as they apply to the retransmission, into the local affiliate's local market, of the distant signals of a station affiliated with the same network. The waiver can be as broad or as narrow as the affiliate wants. For example, a local affiliate can waive the application of section 339(a)(2) to one or more consumers in the local market, with respect to one or more specific distant affiliates of the same network, and with respect to one or more satellite operators. The broadcaster may do so as part of a negotiated agreement and for any reason, including common ownership among the stations. This is intended to be a private negotiation, not one over which the FCC or any other governmental body must preside; nor must any governmental body grant or approve the waiver. Whether to grant a waiver is a decision to be made solely based on the broadcaster's own business judgment, although a broadcaster may grant a waiver as part of an agreement made with a satellite operator or other parties. A broadcaster is also not required to execute any particular document as part of the waiver process, although parties who intend to rely on such a waiver or any attendant agreement will likely want to reduce the waiver and the agreement to writing, so that they have something to refer to should any dispute arise in the future. Such waivers are distinct from the waivers referred to in section 339(c)(2) of the Communications Act, although broadcasters are free to execute both types of waivers in tandem or with a single document. Unlike the section 339(c)(2) waivers, broadcasters must affirmatively grant section 339(a)(2)(D) waivers; they shall not be deemed granted by the broadcaster just because the broadcaster has not responded to a request within a certain amount of time. Nor are section 339(a)(2)(D) waivers or agreements subject to the section 325 good-faith negotiation requirement. Section 339(a)(2)(D) will facilitate agreements that provide consumers with more viewing choices. New section 339(a)(2)(E) requires satellite operators to provide networks, within 60 days after enactment of SHVERA, with lists of certain subscribers to whom they offer distant signals. It also requires satellite operators, within 60 days after commencing in a market local-into-local service under section 338, to provide networks with lists of the subscribers to whom they offer certain distant signals. The notice obligations are designed to help networks monitor compliance with the new ``no-distant-where-local'' requirements that SHVERA creates. New section 339(a)(2)(F) makes clear that the distant-signal limitations of section 339(a)(2) do not apply to the provision of significantly viewed signals under new section 340, or to the provision of distant signals to trucks and recreational vehicles. Nothing in section 204 of the bill is intended to affect any existing waivers under section 339(c)(2) of the Communications Act.

Mr. UPTON

Mr. UPTON. Mr. Chairman, I rise in support of the Barton Amendment. Part of the spectrum which the broadcasters are to return at the end of the DTV transition has been earmarked for public safety interoperable radio communications. The tragic events of 9/11 underscore the need for this, and that is why we must move with deliberate speed to complete the transition. But moving with deliberate speed does not mean moving recklessly, and it does not mean grasping at well-intentioned half-measures that would either cause scores of television stations to literally go dark or would actually set us back in our efforts to get spectrum into the hands of public safety because they are riddled with ill-defined exceptions. Moreover, we need to consider consumers' analog television sets which could go dark once broadcasters cease analog broadcasts--if we do not take care to do this right. Helping public safety and minimizing consumer disruptions need not be mutually goals. I support the Barton amendment because it says that we should impose a hard-date for the end of the entire transition as part of a comprehensive digital television transition bill to be enacted next Congress. I look forward to working in the Energy and Commerce Committee next Congress on this and other proposals to minimize consumer disruptions, focusing on how to get low-cost digital-to-analog converter boxes into the hands of consumers, not to mention other policy matters that are relevant to the transition. The Barton Amendment signs us up to move--not with reckless abandon--but with deliberate speed to ensure that we really get spectrum into the hands of public safety in an expeditious fashion. I urge all of my colleagues to support the Barton Amendment.

Mr. UPTON

Mr. UPTON. Mr. Speaker, I rise today to pay tribute to Coy Dean Fortson who regretfully passed away recently. A life-long resident of Berrien County, Michigan, Coy was a dedicated family man whose extensive charity and dedication to local individuals and the community as a whole made southwest Michigan an even greater place to live and grow. Coy valiantly served his country in the U.S. Air Force during the Korean War, and was a member of the Air Force Reserves for more than 30 years. Over his inspiring career at the Whirlpool Corporation, Coy helped to improve the lives of countless individuals who had the fortune of crossing his path. There is no question that Coy's passion for the betterment of our corner of Michigan will be greatly missed. He undoubtedly touched many lives as a member of Berrien County's FEMA Emergency Planning and Response Team. Coy also served on the Board of Directors for the local public library, where he spent many hours volunteering in order to expand the availability of educational resources for our extended community. On behalf of the Sixth District of Michigan, our prayers and sincere regards go out to Coy's family and friends--he will certainly be deeply missed.

Mr. UPTON

Mr. UPTON. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, today we are considering H.R. 4518, which is alternatively named the ``W.J. `Billy' Tauzin Satellite Television Act of 2004,'' in honor of our former chairman, Billy Tauzin. It is particularly fitting that this is named after Boudreaux friend, Billy Tauzin, since he was the chief architect of the regulatory landscape which promoted the creation of a vibrant satellite TV industry to the benefit of so many consumers across the country. Mr. Speaker, our prayers remain with Billy Tauzin as he continues his fight against cancer, and I know that he is fighting with the same vim and vigor that characterizes his very able public service. This bill reauthorizes certain expiring provisions in the communications and copyright acts. It also modernizes other provisions to increase parity and enhance competition between satellite and cable operations. And given that this bill affects both communications and copyright issues, the Committee on Energy and Commerce worked very closely with the House Committee on the Judiciary on a bipartisan basis in putting this bill together. Procedurally, this bill combines the elements of H.R. 4501, which was reported by the House Committee on Energy and Commerce, with elements of H.R. 4518, which was reported by the House Committee on the Judiciary. I want to commend my colleagues on both committees, on both sides of the aisle, for their cooperation and dedication of this mission, particularly the gentleman from Wisconsin (Mr. Sensenbrenner), chairman of the Committee on the Judiciary; the gentleman from Texas (Mr. Smith), chairman of the Subcommittee on Courts, the Internet, and Intellectual Property; and, obviously, the ranking member of the Committee on Energy and Commerce, the gentleman from Michigan (Mr. Dingell) and the ranking member of the Subcommittee on Telecommunications and the Internet, the gentleman from Massachusetts (Mr. Markey), for their very active work on this legislation. This bill resulted from an extensive examination of satellite TV issues in our committee. The subcommittee on Telecommunications and the Internet held an oversight hearing on March 10, a legislative hearing on April 1, subcommittee markup to legislation on April 28, and the full committee markup to legislation on June 3 that would become H.R. 4501. As I recall, that bill passed in both the subcommittee and full committee on a voice vote. It was extensively bipartisan from the very start. And without a doubt, by extending these expiring provisions, increasing parity between satellite TV and cable operators, promoting competition between satellite TV and cable, the bill will enhance consumer choice and service. Mr. Speaker, this bill builds upon the solid foundation laid by our friend Billy Tauzin. I commend this bill to my colleagues on both sides of the aisle and urge its passage. Mr. Speaker, I yield back the balance of my time.