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

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.