Connect with us

Expert Opinion

Shouldn't FCC Rules Over Indecency Just Grow Up? Reflections on Free Speech and Converging Media

WASHINGTON, November 4 – This article, “TV Has Grown Up. Shouldn’t FCC Rules?” first appeared in the Washington Post Outlook section on Sunday, May 16, 2004, or nearly four-and-a-half years ago. It remains more relevant today than ever: the Supreme Court is today considering Federal Communications Commission v. Fox Television Station, a case about whether the FCC acted properly in sanctioning Fox over the use of the words “fuck” and “shit” on broadcast television.

Published

on

Commentary

Editor’s Note: This article of mine, “TV Has Grown Up. Shouldn’t FCC Rules?” first appeared in the Washington Post Outlook section on Sunday, May 16, 2004, or nearly four-and-a-half years ago. It remains more relevant today than ever: the Supreme Court is today considering Federal Communications Commission v. Fox Television Station, a case about whether the FCC acted properly in sanctioning Fox over the use of the words “fuck” and “shit” on broadcast television. (November 4, 2008)

We Americans have always been on intimate terms with our televisions. They sit in our living rooms. They keep us company. They show us family values, from “I Love Lucy” to “All in the Family” to “The Cosby Show.” So it seems only natural that if our TV friends misbehaved by speaking foul language or showing too much skin, they would be in trouble — perhaps even grounded — very quickly.

Television and radio have always occupied a unique space in the nation’s public conversation, and politicians going back to at least Franklin Roosevelt and his “fireside chats” have understood the power of the electronic soapbox. Part of its influence came from an inherent limitation: The finite number of broadcast frequencies. That led the government to create the Federal Communications Commission, which regulated who could and couldn’t use the airwaves. The FCC also developed rules on what broadcasters couldn’t say.

But now our televisions and radios have grown up, and they have gotten married to all sorts of other electronic devices and technologies. These marriages are producing multimedia offspring that bear little or no resemblance to the bulky boxes of yesterday. This “convergence” of various technologies, as this trend is known in the industry, renders obsolete many of the rules that have governed broadcasting for decades.

It no longer makes any sense to impose one set of rules on the “over-the-air” networks while cable, Internet, satellite and music providers can send — almost unimpeded — all sorts of programming directly to your living room, car, laptop and even your cell phone.

Consider these three scenarios:

• A couple in Los Angeles — I’ll call them the TechnoYuppies — bought a 50-inch wide-screen plasma Gateway Media Center in March, just in time to watch the blood-soaked fifth season premiere of HBO’s “The Sopranos” in high-definition color and surround sound. With their $6,999 television-computer video player hooked up to Time Warner’s digital cable system, the family can also order many cable programs on demand — something their 3-year-old daughter likes because she doesn’t need to wait for the next “Scooby-Doo” on Cartoon Network. Mr. TechnoYuppie is particularly fond of the Media Center because it will allow him to access the Internet with a remote control and download episodes of “Fawlty Towers” (soon to be available on BBC’s Web site), which he will then be able to watch over the high-speed cable modem.

• Surfer Dude, a college student, used to tune into shock jock Howard Stern on a local radio station owned by Clear Channel Communications Inc., but when the FCC went after Stern for “indecency” a few months ago Clear Channel dropped Stern from its broadcasting stations. Surfer Dude hopes Stern will syndicate his show to satellite radio, where Stern can shock to his heart’s content. (In anticipation of such a deal, Surfer Dude recently installed a $260 Kenwood digital radio in his car and subscribed to the new Sirius satellite service.) Meanwhile, he spends drive time listening to Eminem’s uncut rap tracks on his Apple iPod, which he plays over his car radio with a $69 wireless transmitter.

• Mr. and Mrs. Protective Parents try to keep the influence of the media from their four children, ages 5 to 13. Unlike most Americans, this high-tech couple knows how to use the “V-chip” now included in all new televisions, and blocks all programs rated TV-14 or TV-MA. The family decided to enter the digital age in April, buying the RCA digital versatile disc player from Wal-Mart with parental controls by ClearPlay. The software is smart enough to skip over scenes of nudity or profanity in box-office hits such as “Terminator 3.”

Readers who think that these situations seem futuristic should realize that nothing is made up here except for the people. This plethora of viewing and listening choices demonstrates that the current debate over broadcast indecency standards is woefully out of touch with the realities of the digital world as we now know it — not to mention the world that is just over the horizon.

The TechnoYuppies are like 88 percent of current Americans who get cable or direct broadcast satellite services for more channels — and better reception — than they would from a broadcast tower. But unlike the traditional television and radio signals that pass over certain broadcast frequencies, satellite and wireless are “free speech” airwaves — they aren’t subject to the indecency standards that the FCC cited in going after Stern.

This glaring inconsistency has some legislators in Washington scratching their heads and wondering: Why doesn’t everyone live by the same rules?

Some say that cable and satellite are different because consumers have to pay for them. But broadcast and pay channels sit side by side in the electronic programming guide. “The average consumer doesn’t distinguish over-the-air television from cable or satellite,” says Texas Republican Joe Barton, the new chairman of the House Energy and Commerce Committee. His vision? “If I can see it in my living room, and my grandson can click channels, the same rules of indecency apply.”

With the Senate about to debate a bill that would allow the FCC to boost its fines from $27,500 to $500,000, the answer to this question is vital and urgent. Whether you agree with Barton that all television and radio should be barred from transmitting what the government deems “indecent,” or whether you believe that all media should be free from such censorship, as I do, it seems clear that the current model has become unsustainable. That’s why the brief flash of Janet Jackson’s breast may be remembered decades from now not just as a silly show of bad taste, but as a defining moment in the country’s ongoing debate about free speech.

Congress began regulating broadcasters in 1927 on the grounds of scarcity. In return for free and exclusive use of a given wavelength, broadcasters agreed to serve the “public interest, convenience, and necessity” — or at least to do what Congress and the FCC ordered. One element of this agreement was a ban on obscene, indecent and profane language.

This scarcity theory has always lacked substance. Nobel Prize-winning economist Ronald Coase’s reputation is based, in part, on a notable paper he wrote in 1959 that criticized the rationale behind the FCC’s command and control regime of licensing broadcasters. “It is a commonplace of economics that almost all resources in the economic system (and not simply radio and television frequencies) are limited in amount and scarce, in that people would like to use more than exists,” Coase argued in his seminal essay.

But now technology has created new electromagnetic spectrum. Higher wavelengths than those used by traditional radio and television systems have been pressed into service for digital cellular telephones, wireless data connections, and satellite television and radios. The XM and Sirius satellite radio companies each offer hundreds of channels with less spectrum than all FM radio broadcasters combined. And cellular carriers now pack thousands of conversations on a channel that once served a single voice conversation.

Nonetheless, “scarcity” remains the foundation of a bifurcated jurisprudence. Newspapers, magazines, books and the Internet enjoy expansive First Amendment protections. Radio and broadcast television, defined as “public” properties, do not.

The Supreme Court accepted the scarcity theory in a 1943 case, when it upheld the FCC’s power to grant or deny privileges to electronic speakers. In 1969, the court went further, ruling in Red Lion v. FCC that scarcity required a Pennsylvania radio station to give free reply time to an author whose book was criticized over the air. Thus, the “fairness doctrine” was affirmed.

Then came the famous “seven dirty words” — comedian George Carlin’s 1973 satiric monologue about the seven words, as he put it, that “you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say, ever.” Except that the defiant and mischievous Carlin did say them on the radio — over and over and over again.

A father who heard the monologue in his car — with his young son along for the ride — complained to the FCC, which sanctioned the Pacifica station that carried Carlin’s monologue. In 1978, the Supreme Court said the monologue wasn’t obscene, but that it was “patently offensive.” The court ruled in FCC v. Pacifica that the pervasiveness of broadcasting, and its easy accessibility to children, justified the FCC’s authority to impose indecency limitations.

I don’t want my 4-year-old son to see crude or provocative shows when he turns on our television. I also don’t want him to see such material when he turns on our Internet-connected computer. Yet it would be impractical, as well as unconstitutional, for the government to set itself as the censor of cable, satellite and Internet content. It makes more much sense for consumers to determine what comes into their homes.

The technology exists for us to be masters of convergence — whether it’s a V-chip, or Internet and movie filters, or a blocking device that keeps out cable and satellite channels that we don’t want to see. And, of course, it doesn’t require technology to talk with our kids about viewing standards.

Within the next decade it will be impossible to distinguish between televisions and computers. More cable, satellite and high-speed broadband means that it is only a matter of time before all Americans get television over the Internet — wirelessly or through a pipe of fiber or copper. It’s time to recognize that Congress and the FCC can no longer be the nation’s “public interest” nanny. Instead of trying to preserve rules from a world that no longer exists, they would do better to encourage the development of tools that will let us regulate ourselves.

Breakfast Media LLC CEO Drew Clark has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative.

Continue Reading
Click to comment

Leave a Reply

Europe

Helge Tiainen: Fiber Access Extension Eases Connectivity Worries for Operators, Landlords and Tenants

A new law presents an opportunity to reuse existing infrastructure for fiber broadband deployment.

Published

on

The author of this Expert Opinion is Helge Tiainen, head of product management, marketing and sales at InCoax.

Previously, tenants living in the United Kingdom’s estimated 480,000 blocks of flats and apartments had to wait for a landlord’s permission to have a broadband operator enter their building to install faster connectivity. But that is no longer the case.

At the beginning of the year, a new UK law change meant that millions of UK tenants are no longer prevented from receiving a broadband upgrade due to the silence of their landlords. The Telecommunications Infrastructure (Leasehold Property) Act allows internet service providers to access a block of flats 35 days after the ISP’s request to the landlord. It is estimated that an extra 2,100 residential buildings a year will be connected as a result.

Broadband companies have advised that currently around 40 percent of their requests for access to install connections in multi-dwelling units are delayed or blocked, due to no landlord response. Undoubtedly, tenants residing in these flats and apartment blocks are those most effected by a lack of accessibility to ultra-fast connectivity. So, how can ISPs grasp this newfound opportunity?

Harnessing the existing infrastructure

For many ISPs, MDUs pose a market that is largely untapped in the UK. Why is this? Well, for starters, typically these types of properties present logistical challenges, and are lower down in the pecking order in terms of the low hanging fruits readily available when it comes to installing fiber to the premises. The more attractive prospects are buildings in densely populated areas that can be covered easily with gigabit broadband.

Whereas, MDUs have typically been those underserved. Signing a broadband contract with a customer in a single-family unit is easier than an MDU as it involves securing permissions from building and apartment owners for construction works, as well as numerous tenants. For those ISPs tasked with upgrading tenants’ existing broadband connections, there are other challenges prevalent such as rising costs, wiring infrastructure changes and contract requirements, including minimum take-up rates.

So, there has been no better time to use the existing infrastructure readily available within the property. A fiber-only strategy can be supplemented if fiber to the extension point is employed where necessary. A multi-gigabit broadband service can be delivered at a lower cost and reach more customers over existing infrastructure for a short section of wire leading to the customer premises and inside the premises.

Bringing gigabit connectivity floor to floor

The UK government hopes that 85% of the UK will be able to access gigabit fixed broadband by 2025. However, installing fiber to every flat can be a challenge that is expensive, labor-intensive and disruptive to customers. Landlords may be hesitant to grant permissions due to the aforementioned reasons and potential cosmetic damage caused. Historically, fiber deployments in MDUs can be as much as 40% of fiber to the building deployment costs.

MDU buildings have existing coaxial networks, and reusing this infrastructure is a tangible possibility and time-saving alternative for ISPs instead of installing fiber direct to the premises. Which can be costly if the take-up rate is low for new services. The coaxial networks in MDUs can be used in an innovative way as in-building TV networks are upgraded to support higher frequency spectrums thanks to the analogue switchover to digital TV services.

ISPs can potentially opt to use fiber access extension technology for a cost-effective and less complex upgrade of broadband as it utilizes the existing in-house coax cable infrastructure. The technology provides multi-gigabit broadband services, positioning it as a clear frontrunner when optical fiber cannot be deployed due to construction limitations, a lack of ducts, building accessibility, and technical or historical preservation reasons.

Time for change

Not only does this landmark new law allow ISPs to seek rights to access a flat or an apartment if the landlord required to grant access is unresponsive, but it also prevents any situations where a tenant is unable to receive a service simply due to the silence of a landlord.

This is a crucial opportunity to reuse existing infrastructure for broadband access as TILPA enables subscribers and service providers to circumvent landlords who fail to provide access permission.

As many ISPs look to seamlessly execute their fiber deployment strategies, using cost-effective solutions can accelerate the addressable number of subscribers and allow for a major return on investment.

As head of product management, marketing and sales at InCoax, Helge Tiainen is responsible for developing sales and marketing of existing products and new business opportunities among cable, telecom and mobile operators by developing use cases and technologies within standard organizations as Broadband Forum, MoCA, Small Cell Forum and other working groups. He also manages partnerships of key technology partners suited with InCoax initiatives. This piece is exclusive to Broadband Breakfast.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

Continue Reading

Asia

Dae-Keun Cho: Demystifying Interconnection and Cost Recovery in South Korea

South Korean courts have rejected attempts to mix net neutrality arguments into payment disputes.

Published

on

The author of this Expert Opinion is Advisor in Dae-Keun Cho, a member of the telecom, media and technology practice team at Lee & Ko.

South Korea is recognized as a leading broadband nation for network access, use and skills by the International Telecommunications Union and the Organisation for Economic Co-operation and Development.

South Korea exports content and produces platforms which compete with leading tech platforms from the US and China. Yet few know and understand the important elements of South Korean broadband policy, particularly its unique interconnection and cost recovery regime.

For example, most Western observers mischaracterize the relationship between broadband providers and content providers as a termination regime. There is no such concept in the South Korean broadband market. Content providers which want to connect to a broadband network pay an “access fee” like any other user.

International policy observers are paying attention to the IP interconnection system of IP powerhouse Korea and the lawsuit between SK Broadband (SKB) and Netflix. There are two important subjects. The first is the history and major regulations relating to internet protocol interconnection in South Korea. Regulating IP interconnection between internet service providers is considered a rare case overseas, and I explain why the Korean government adopted such a policy and how the policy has been developed and what it has accomplished.

The second subject is the issues over network usage fees between ISPs and content providers and the pros and cons. The author discusses issues that came to the surface during the legal proceedings between SKB and Netflix in the form of questions and answers. The following issues were identified during the process.

First, what Korean ISPs demand from global big tech companies is an access fee, not a termination fee. The termination fee does not exist in the broadband market, only in the market between ISPs.

In South Korea, content providers only pay for access, not termination

For example, Netflix’s Open Connect Appliance is a content delivery network. To deliver its content to end users in Korea, Netflix must purchase connectivity from a Korean ISP. The dispute arises because Netflix refuses to pay this connectivity fee. Charging CPs in the sending party network pay method, as discussed in Europe, suggests that the CPs already paid access fees to the originating ISPs and should thus pay the termination fee for their traffic delivery to the terminating ISPs. However in Korea, it is only access fees that CPs (also CDNs) pay ISPs.

In South Korea, IP interconnection between content providers and internet service providers is subject to negotiation

Second, although the IP interconnection between Korean ISPs is included in regulations, transactions between CPs and ISPs are still subject to negotiation. In Korea, a CP (including CDN) is a purchaser which pays a fee to a telecommunications service provider called an ISP and purchases a public internet network connection service, because the CP’s legal status is a “user” under the Telecommunications Business Act. Currently, a CP negotiates with an ISP and signs a contract setting out connection conditions and rates.

Access fees do not violate net neutrality

South Korean courts have rejected attempts to mix net neutrality arguments into payment disputes. The principle of net neutrality applies between the ISP and the consumer, e.g. the practice of blocking, throttling and paid prioritization (fast lane).

In South Korea, ISPs do not prioritize a specific CP’s traffic over other CP’s because they receive fees from the specific CP. To comply with the net neutrality principle, all ISPs in South Korea act on a first-in, first-out basis. That is, the ISP does not perform traffic management for specific CP traffic for various reasons (such as competition, money etc.). The Korean court did not accept the Netflix’s argument about net neutrality because SKB did not engage in traffic management.

There is no violation of net neutrality in the transaction between Netflix and SKB. There is no action by SKB to block or throttle the CP’s traffic (in this case, Netflix). In addition, SKB does not undertake any traffic management action to deliver the traffic of Netflix to the end user faster than other CPs in exchange for an additional fee from Netflix.

Therefore, the access fee that Korean ISPs request from CPs does not create a net neutrality problem.

Why the Korean model is not double billing

Korean law allows for access to broadband networks for all parties provided an access fee is paid. Foreign content providers incorrectly describe this as a double payment. That would mean that an end user is paying for the access of another party. There is no such notion. Each party pays for the requisite connectivity of the individual connection, nothing more. Each user pays for its own purpose, whether it is a human subscriber, a CP, or a CDN. No one user pays for the connectivity of another.

Dae-Keun Cho, PhD is is a member of the Telecom, Media and Technology practice team at Lee & Ko. He is a regulatory policy expert with more than 20 years of experience in telecommunications and ICT regulatory policies who also advises clients on online platform regulation policies, telecommunications competition policies, ICT user protection policies, and personal information protection. He earned a Ph.D. in Public Administration from the Graduate School of Public Administration in Seoul National University. This piece is reprinted with permission.

Request the FREE 58 page English language summary of Dr. Dae-Keun Cho’s book Nothing Is Free: An In-depth report to understand network usage disputes with Google and Netflix. Additionally see Strand Consult’s library of reports and research notes on the South Korea.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

Continue Reading

Expert Opinion

Luke Lintz: The Dark Side of Banning TikTok on College Campuses

Campus TikTok bans could have negative consequences for students.

Published

on

The author of this expert opinion is Luke Lintz, co-owner of HighKey Enterprises LLC

In recent months, there have been growing concerns about the security of data shared on the popular social media app TikTok. As a result, a number of colleges and universities have decided to ban the app from their campuses.

While these bans may have been implemented with the intention of protecting students’ data, they could also have a number of negative consequences.

Banning TikTok on college campuses could also have a negative impact on the inter-accessibility of the student body. Many students use the app to connect with others who share their interests or come from similar backgrounds. For example, international students may use the app to connect with other students from their home countries, or students from underrepresented groups may use the app to connect with others who share similar experiences.

By denying them access to TikTok, colleges may be inadvertently limiting their students’ ability to form diverse and supportive communities. This can have a detrimental effect on the student experience, as students may feel isolated and disconnected from their peers. Additionally, it can also have a negative impact on the wider college community, as the ban may make it more difficult for students from different backgrounds to come together and collaborate.

Furthermore, by banning TikTok, colleges may also be missing out on the opportunity to promote diverse events on their campuses. The app is often used by students to share information about events, clubs and other activities that promote diversity and inclusivity. Without this platform, it may be more difficult for students to learn about these initiatives and for organizations to reach a wide audience.

Lastly, it’s important to note that banning TikTok on college campuses could also have a negative impact on the ability of college administrators to communicate with students. Many colleges and universities have started to use TikTok as a way to connect with students and share important information and updates. The popularity of TikTok makes it the perfect app for students to use to reach large, campus-wide audiences.

TikTok also offers a unique way for college administrators to connect with students in a more informal and engaging way. TikTok allows administrators to create videos that are fun, creative and relatable, which can help to build trust and to heighten interaction with students. Without this platform, it may be more difficult for administrators to establish this type of connection with students.

Banning TikTok from college campuses could have a number of negative consequences for students, including limiting their ability to form diverse and supportive communities, missing out on future opportunities and staying informed about what’s happening on campus. College administrators should consider the potential consequences before making a decision about banning TikTok from their campuses.

Luke Lintz is a successful businessman, entrepreneur and social media personality. Today, he is the co-owner of HighKey Enterprises LLC, which aims to revolutionize social media marketing. HighKey Enterprises is a highly rated company that has molded its global reputation by servicing high-profile clients that range from A-listers in the entertainment industry to the most successful one percent across the globe. This piece is exclusive to Broadband Breakfast.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

Continue Reading

Signup for Broadband Breakfast

Twice-weekly Breakfast Media news alerts
* = required field

Broadband Breakfast Research Partner

Trending