FAIR Ratings Act

Mr. President. I rise to introduce the FAIR Ratings bill. I am pleased to be joined in introducing this bill by my colleagues, Senators Martinez, Snowe, and Allen.

As a former broadcaster, I understand that when TV stations plan their programming, they and their advertisers must rely on the information provided by commercial TV ratings companies. And it is vital that this data be as accurate, fair, and inclusive as possible, because TV ratings ultimately determine what programming ends up on the air. They also help broadcasters to meet their public interest obligations. For these reasons, I feel that it is very much in the public interest for TV ratings to be fair, accurate, and as fully representative of the population as possible.

The dominant company that provides TV ratings, and has done so for the last 50 years, is Nielsen Media Research. Nielsen is a great company and a great American institution--no doubt about it. The innovation that Nielsen showed in its early years, and continues to show today in other ways, show that its leading role in the field is well-deserved.

Our friends from Nielsen may have already spoken to many of you about this bill, and let me assure you up front that this is not a bill ``against'' Nielsen. It would apply to any other company or new technology whose ratings service determines what we see on TV. But Nielsen will definitely be the most affected party if the bill passes, so let me characterize this instead as a bill to keep Nielsen honest and accountable to its customers, and to the public.

Because Nielsen today is pretty close to being a monopoly, any way you look at it. A private, unregulated monopoly provider of an essential public service. And as basic economics and everyday practice show, monopolies have the ability to abuse their power, because they are not constrained by competition--there is nowhere else for a TV station or advertiser to go if they don't like what they get or how they are treated. Barriers to entry are pretty high in that business-- it is not simple or cheap to set up a nationwide TV ratings service.

And that monopoly power has been abused in the past. Forty years ago or so, there were a couple of nationwide scandals about TV ratings. I remember that well, and some of you may even have seen the movie. Payola and game shows. At that time, Nielsen's service was found to be mixed up with all that in some way, and was reporting flawed data.

And Congress got involved. The Senate had hearings for many months, and at the end of it, there was a report--the Harris Commission report--that called for the creation of an independent, industry-run, private oversight body to audit and accredit Nielsen's ratings measurement systems for accuracy.

That body was created in 1964 and is now called the Media Rating Council. It continues to audit and accredit TV ratings systems to this day, consulting closely with Nielsen and its own members, who are the main consumers of TV ratings data. It has long experience and great expertise at conducting audits of ratings data for quality and accuracy. And it has broad industry support and participation.

The Media Rating Council's role today, and its relationship with Nielsen, or any other TV rating company that may come to equal prominence in the future, are what concern me and moved me to introduce this bill.

Last year, Nielsen introduced a new technology called Local People Meters, which was designed to measure viewer behavior in a more accurate way and to replace the old paper diaries. This system was similar to a technology that Nielsen had introduced in the late 1980s. In both cases, there were big changes in the TV ratings when Nielsen moved from the old system to the new one. To the extent that these changes simply captured viewer preferences more accurately, this was good for the industry and for TV viewers in general. There is no public interest in which channel gets higher or lower ratings, so long as the measurement is accurate.

But in certain cases, in four of our largest cities last year, it was not. It turns out that, since the meters operate differently from the diary system, there were flaws in the measurement of the underlying data by demographic group, due to higher ``fault rates'' among certain groups: African-Americans, Hispanics, younger viewers, larger families, and certain others.

And here is where the Media Rating Council came in. They had audited the data and examined the people meter system in certain cities in advance, in a trial period, and identified these problems. And they told Nielsen about them in advance. And they told Nielsen that the undercounting should be fixed before it sold the data from this system commercially.

And what did Nielsen do? It effectively ignored the MRC's prior findings. It said it would work to fix the system while it was already ``live'' and producing real TV ratings--with those flaws--and would continue to roll out the new technology in other cities before the problems were fixed in the old ones.

I chaired a hearing last summer in the Commerce Committee on this issue, and have continued to monitor the situation closely since then. At that hearing, Nielsen indicated that it would have the problems fixed within a few weeks. Now, a year later, they are still not fixed, despite clear instructions from the Media Rating Council. And while Nielsen has been cooperative with customers and critics--to its credit--the fundamental issue of oversight enforcement has not been resolved.

Now I agree with Nielsen, and most others do too, that the people meters, when implemented correctly, produce better numbers than the diaries. And we should be glad that Nielsen is devoting the resources to developing new technologies, as it should. The diary system, after all, hasn't really changed much since the 1950s.

But it is also clear that Nielsen should not have moved ahead without the full prior approval of the Media Rating Council, which is the expert organization set up--at the behest of Congress--to ensure TV ratings accuracy. It was this action, more than any of the other details of the controversy, that indicated to me that the oversight system was missing some essential teeth.

So my bill simply makes prior Media Rating Council accreditation for TV ratings systems mandatory, not voluntary, as it is today. It backstops a system that has been in place for 40 years.

It is not a bill about the Local People Meter system. It is not a bill about the ratings of one broadcast company or any group of companies. It is not even a bill about Nielsen, although it will clearly be the most affected company.

Further, there is no government role whatsoever envisioned in this bill. It does not create any new government standards, regulation, or bureaucracy: the oversight will be carried out by a private, self- governing, industry body that has already been operating for 40 years.

So, I hope we can all agree that accurate TV ratings are in the public interest. I hope we can all agree that private industry oversight, by the entity set up by Congress 40 years ago, is the best way to ensure that. And if we can, I hope all of my colleagues in the Senate will support this bill, on behalf of all television viewers throughout the United States.

Mr. President. I rise to introduce the FAIR Ratings bill. I am pleased to be joined in introducing this bill by my colleagues, Senators Martinez, Snowe, and Allen.

As a former broadcaster, I understand that when TV stations plan their programming, they and their advertisers must rely on the information provided by commercial TV ratings companies. And it is vital that this data be as accurate, fair, and inclusive as possible, because TV ratings ultimately determine what programming ends up on the air. They also help broadcasters to meet their public interest obligations. For these reasons, I feel that it is very much in the public interest for TV ratings to be fair, accurate, and as fully representative of the population as possible.

The dominant company that provides TV ratings, and has done so for the last 50 years, is Nielsen Media Research. Nielsen is a great company and a great American institution--no doubt about it. The innovation that Nielsen showed in its early years, and continues to show today in other ways, show that its leading role in the field is well-deserved.

Our friends from Nielsen may have already spoken to many of you about this bill, and let me assure you up front that this is not a bill ``against'' Nielsen. It would apply to any other company or new technology whose ratings service determines what we see on TV. But Nielsen will definitely be the most affected party if the bill passes, so let me characterize this instead as a bill to keep Nielsen honest and accountable to its customers, and to the public.

Because Nielsen today is pretty close to being a monopoly, any way you look at it. A private, unregulated monopoly provider of an essential public service. And as basic economics and everyday practice show, monopolies have the ability to abuse their power, because they are not constrained by competition--there is nowhere else for a TV station or advertiser to go if they don't like what they get or how they are treated. Barriers to entry are pretty high in that business-- it is not simple or cheap to set up a nationwide TV ratings service.

And that monopoly power has been abused in the past. Forty years ago or so, there were a couple of nationwide scandals about TV ratings. I remember that well, and some of you may even have seen the movie. Payola and game shows. At that time, Nielsen's service was found to be mixed up with all that in some way, and was reporting flawed data.

And Congress got involved. The Senate had hearings for many months, and at the end of it, there was a report--the Harris Commission report--that called for the creation of an independent, industry-run, private oversight body to audit and accredit Nielsen's ratings measurement systems for accuracy.

That body was created in 1964 and is now called the Media Rating Council. It continues to audit and accredit TV ratings systems to this day, consulting closely with Nielsen and its own members, who are the main consumers of TV ratings data. It has long experience and great expertise at conducting audits of ratings data for quality and accuracy. And it has broad industry support and participation.

The Media Rating Council's role today, and its relationship with Nielsen, or any other TV rating company that may come to equal prominence in the future, are what concern me and moved me to introduce this bill.

Last year, Nielsen introduced a new technology called Local People Meters, which was designed to measure viewer behavior in a more accurate way and to replace the old paper diaries. This system was similar to a technology that Nielsen had introduced in the late 1980s. In both cases, there were big changes in the TV ratings when Nielsen moved from the old system to the new one. To the extent that these changes simply captured viewer preferences more accurately, this was good for the industry and for TV viewers in general. There is no public interest in which channel gets higher or lower ratings, so long as the measurement is accurate.

But in certain cases, in four of our largest cities last year, it was not. It turns out that, since the meters operate differently from the diary system, there were flaws in the measurement of the underlying data by demographic group, due to higher ``fault rates'' among certain groups: African-Americans, Hispanics, younger viewers, larger families, and certain others.

And here is where the Media Rating Council came in. They had audited the data and examined the people meter system in certain cities in advance, in a trial period, and identified these problems. And they told Nielsen about them in advance. And they told Nielsen that the undercounting should be fixed before it sold the data from this system commercially.

And what did Nielsen do? It effectively ignored the MRC's prior findings. It said it would work to fix the system while it was already ``live'' and producing real TV ratings--with those flaws--and would continue to roll out the new technology in other cities before the problems were fixed in the old ones.

I chaired a hearing last summer in the Commerce Committee on this issue, and have continued to monitor the situation closely since then. At that hearing, Nielsen indicated that it would have the problems fixed within a few weeks. Now, a year later, they are still not fixed, despite clear instructions from the Media Rating Council. And while Nielsen has been cooperative with customers and critics--to its credit--the fundamental issue of oversight enforcement has not been resolved.

Now I agree with Nielsen, and most others do too, that the people meters, when implemented correctly, produce better numbers than the diaries. And we should be glad that Nielsen is devoting the resources to developing new technologies, as it should. The diary system, after all, hasn't really changed much since the 1950s.

But it is also clear that Nielsen should not have moved ahead without the full prior approval of the Media Rating Council, which is the expert organization set up--at the behest of Congress--to ensure TV ratings accuracy. It was this action, more than any of the other details of the controversy, that indicated to me that the oversight system was missing some essential teeth.

So my bill simply makes prior Media Rating Council accreditation for TV ratings systems mandatory, not voluntary, as it is today. It backstops a system that has been in place for 40 years.

It is not a bill about the Local People Meter system. It is not a bill about the ratings of one broadcast company or any group of companies. It is not even a bill about Nielsen, although it will clearly be the most affected company.

Further, there is no government role whatsoever envisioned in this bill. It does not create any new government standards, regulation, or bureaucracy: the oversight will be carried out by a private, self- governing, industry body that has already been operating for 40 years.

So, I hope we can all agree that accurate TV ratings are in the public interest. I hope we can all agree that private industry oversight, by the entity set up by Congress 40 years ago, is the best way to ensure that. And if we can, I hope all of my colleagues in the Senate will support this bill, on behalf of all television viewers throughout the United States.

Mr. President, I rise today to introduce legislation on behalf of myself and Senator Conrad that has to do with the desecration of the flag. All of us are angered when we see someone burn or otherwise desecrate the American flag, and I believe it is appropriate that we take such steps as are appropriate to deal with such desecration.

Over the years I have been in the Senate, I have opposed amending the Constitution to deal with this issue for two reasons. First, there are not that many cases of flag desecration for us to see as we look around the country. And I am reluctant to amend the Constitution to deal with a non-problem. Flag desecration hit its peak during the Vietnam years, but it has virtually disappeared now and occurs, ironically, only when debate about amending the Constitution becomes a subject of public discourse. We seem to stimulate flag desecration when we have the debate on amending the Constitution with respect to it.

So for that reason, I have consistently opposed a constitutional amendment on desecration of the flag.

However, as I have studied the matter and spent time with the legal experts at the Congressional Research Service over at the Library of Congress, I have found that there are things that can be done with respect to flag desecration that also establish our reverence for the flag, but do not require a constitutional amendment.

I have introduced this legislation before. It has not progressed in the congressional process to the opportunity for a vote, and I am not sure it will this time. But I wish to make it clear to my constituents and to others who have concern about this problem that my objection to a constitutional amendment should not be construed as demonstrating indifference to the issue of reverence for the flag.

Senator Conrad has joined me on this occasion as he has at previous times when this legislation has been introduced, and I am happy to have him as an original co-sponsor on the bill at this time.

I will be happy to yield.

Mr. President, I am happy to ask unanimous consent that the honorable Senator from West Virginia be added as an original co- sponsor to the bill.

I have been interested at the reaction that has come from my constituents as I have held this position over the years. I remember a conversation with Utah's most respected pollster just before I cast my first vote against the flag amendment. He said: Senator, according to my polls, 80 percent of the people of Utah are in favor of a constitutional amendment with respect to the flag, and something like 60 percent of them consider it a voting issue. That is, they would be more likely to vote against a candidate who voted against the flag amendment than they would to vote for him. We talked about it, and he said: What are you going to do? I said: Regardless of the poll numbers, I am going to vote against the amendment. He laughed a little and he said: That is what I thought. I think it will stand you in good stead with your constituents who will respect your courage even if they do not agree with your position.

I was grateful for those words of encouragement, and I am happy to report that has happened.

I ask unanimous consent that at the end of my statement, two editorials be printed in the Record from Utah's two newspapers with the highest circulation, the Salt Lake Tribune and the Deseret Morning News.

The Salt Lake Tribune editorial makes this comment:

If respect for something has to be required by law, then it

isn't respect. If regard for a symbol of freedom has to be

imposed by carving a hole out of our basic charter of rights,

then it isn't freedom.

And it concludes with this sentence:

The rare act of torching an American flag is one of two

things: pointless or meaningful. If it is pointless, the

worst it could be called is vandalism, and should be treated

as such. If it is meaningful, even full of meaning we don't

like, then it is and must remain constitutionally protected

expression.

Now turning to the editorial from the Deseret Morning News, the lead paragraph there says:

Once again, the House of Representatives has passed a

constitutional amendment to protect the American flag from

desecration. This is an annual event almost as predictable as

the swallows returning to Capistrano. So, too, is the

Senate's annual ritual of not passing it.

They conclude with this comment which I am happy to include in the record because it says nice things about me. We always like comments that do that. It says:

One of the Senate votes against it belongs to Utah Senator

Bob Bennett, who normally agrees with much that Senator Hatch

supports. He has said he is unwilling to overturn 200 years

of tradition in regard to the First Amendment.

He's right. The Constitution is no place for feel-good

amendments that do nothing but restrict freedoms.

Finally, Mr. President, I share with you the comment that I have had from one of my colleagues also, and I will not speak directly for him but associate myself with the line. He said: When my Senate career is over, I don't want the most important constitutional vote that I have cast to be one that weakens the first amendment.

I ask unanimous consent the text of the bill be printed in the Record.

Mr. President, I join the Senators from Missouri and Connecticut in introducing the Unsolved Civil Rights Crime Act. I do so because I believe that this legislation takes the right approach when dealing with the wrongs of our past. It takes action. It takes positive steps forward to correct injustices. It recommits us to one of our highest ideals as Americans--that justice will not be denied.

Specifically, the bill creates a new office within the Department of Justice Civil Rights Division specifically tasked to investigate ``cold case'' murders from the civil rights era. It will commit the resources of the Department of Justice to work in conjunction with State and local law enforcement to aggressively prosecute criminals in those cases.

The Unsolved Civil Rights Crime Act might well be named in honor of James Chaney, Michael Schwerner, and Andrew Goodman--the three civil rights workers who were shot to death by former Ku Klux Klansman Edgar Ray Killen. Forty-one years later, thanks to the efforts of the victims' families, Mississippi State officials, and many others who would not let this crime go unpunished, Killen sits in solitary confinement in a State prison outside Jackson, Mississippi, right where he belongs.

Justice will not be denied. And the Unsolved Civil Rights Crime Act will see to it that others like Edgar Ray Killen are punished for their crimes. It will pour new resources into the investigations of other unsolved cases--like that of 14-year old Emmett Till, who was kidnapped and murdered in 1955.

Recently, the Senate apologized for the failure of earlier Senators to enact federal antilynching legislation in the 1930s and 1940s. In discussing that resolution, I reminded my colleagues of how often we as a Nation have failed to live up to our great ideals. But usually when we have failed, we have recognized that failure and recommitted ourselves to those ideals and reached for them again. We did not simply acknowledge our failure and give up--we took action to correct our shortcomings. We abolished slavery. We granted women the right to vote. We desegregated our schools. Here, with this bill, we take action once more.

Actions speak louder than words. If the Edgar Ray Killen conviction is any indication, then the action we would take by passing this bill would speak very loudly indeed. When Killen was convicted, the Nashville City Paper ran an editorial, which I will include in full following my remarks, that summed up just why taking action is so important. The editorial concluded, ``As long as Civil Rights era killers are still alive and free, justice has not yet been fully served. Hunting them down and bringing them to account for their actions is far and away the best apology any of us can make for their crimes.''

Today, we do not merely rest on words of apology--we take action. When it comes to questions of civil rights that has always been what I have tried to do. In 1962 when I was the student newspaper editor, Vanderbilt University's undergraduate school was segregated. I could have apologized for the actions of the board of trust; instead, I helped integrate the school. As Governor and President of the University of Tennessee, instead of apologizing for my predecessors, I appointed the first African American Supreme Court Justice and university vice-presidents. Instead of apologizing for Tennessee legislatures that had refused to enact the Martin Luther King Holiday, I helped make it law. I did not think it was effective merely to apologize for what others had failed to do. America is a work in progress. If we were to apologize for every failure to reach our lofty goals, there would be no end to it.

I believe it is better to look forward and take action rather than look backward and apologize for others. I believe this bill does just that. Passing this bill today hopefully means that tomorrow one more unsolved case is opened; one more criminal is brought to justice; one more family can find peace.

Justice delayed is justice denied. This bill will help make sure that justice will be delayed no longer. And it is for that reason that I am proud to join my colleagues in cosponsoring the Unsolved Civil Rights Crime Act.

I ask unanimous consent that the article I referenced earlier be printed in the Record.

I thank the Chair. I am glad to be here in the Chamber during the remarks of the Senator from Utah and have him explain for all of our benefit his position on important issues such as flag desecration. While I think some of us differ about the means to the end, I think the end is important, and that is protecting the symbol of our country and the symbol of our freedom. For myself, I think if we can offer protection to a symbol of our country like the bald eagle, then we should offer protection to other symbols of our country including our flag. But I always consider Senator Bennett to be one of the wise men in the Senate, and I certainly defer to his great judgment and wisdom. I appreciate his introduction today, and I look forward to studying it more closely.

Exhibit 1

[From the Deseret Morning News, Jun. 24, 2005]

Dump the Flag Amendment

Once again, the House of Representatives has passed a

constitutional amendment to protect the American flag from

desecration. This is an annual event almost as predictable as

the swallows returning to Capistrano. So, too, is the

Senate's annual ritual of not passing it.

This year, there is reason to think the Senate may be

inching closer to passing it, and that's a concern.

Few things are as reprehensible as watching someone protest

the government by burning the flag. Particularly at a time

when the nation is involved in a military conflict, it is a

stunning affront to brave men and women who are sacrificing

their all for freedom.

But it would be wrong to rewrite the Constitution to equate

a forced honoring of the flag with other freedoms guaranteed

by the Bill of Rights. As upsetting as it is, flag burning is

a form of expression every bit as much as flag waving. And a

nation that attributes part of its greatness to its

willingness to tolerate dissent and protest can't afford to

stifle this type of speech.

Flag burning--an occurrence so rare most Americans would be

hard-pressed to pinpoint the last time they saw it--would not

disappear because of an amendment. Chances are, it would

become more prevalent, out of some misguided attempt to stand

on principle. That would harm public morale at an important

point in history, and the pride many Americans feel in their

ability to tolerate free speech would feel more hollow.

Besides, an amendment would raise a number of troubling

questions that surely would be tested by 1 the nation's

detractors. Would it be illegal to desecrate something that

was almost a flag? For instance, if protesters create

something that looks like the flag but has less than 50

stars, could they be punished for burning it? And what about

hanging the flag upside down or in other ways considered

disrespectful? A lot of clothes these days, from hats to T-

shirts to blue jeans, contain images of the flag. Would

these, too, be covered under the amendment? Would they,

themselves, be illegal?

Courts would be kept busy for decades answering these and

other questions.

This is the sixth time the flag amendment has passed the

House. Should it pass the Senate, where its sponsor is Utah

Sen. Orrin Hatch, it would be almost assured of ratification

by the states. All 50 states already have resolutions calling

for it to pass.

One of the Senate votes against it belongs to Utah Sen. Bob

Bennett, who normally agrees with much that Hatch supports.

He has said he is unwilling to overturn 200 years of

tradition in regard to the First Amendment.

He's right. The Constitution is no place for feel-good

amendments that do nothing but restrict freedoms.