The Progress & Freedom Foundation Blog

(1) Should Our Clear-As-Mud Indecency "Standard" Really Be Applied More Broadly?: The constitutionality of the FCC's indecency regime has always been suspect even in the context of over-the-air broadcasting. That is more clearly the case today than ever before. Take a look at the recent "Saving Private Ryan" decision that I blogged about here.

The decision is about as clear as mud and does little to clarify modern indecency "standards." Why else would 66 ABC affiliates refused to air the movie in the first place? And why else would PBS self-censor a war documentary about life on the front lines in Iraq for fear that its public TV stations could not afford the FCC fines?

Read my blog for more details about just how arbitrary this new indecency regime is and then ask yourself just how much more complicated things will get if we try to apply it all to cable and satellite television.

(2) Intruder in the Home or Invited Guest?: The best argument in favor of some level of broadcast TV or radio censorship is that over-the-air signals come into our homes uninvited. In Pacifica, the Supreme Court stressed this point, arguing that broadcasting was a "pervasive" influence in our society and "uniquely accessible" to children. (That's why Rockefeller and Hutchison use that language in their bill). Of course, even though over-the-air broadcast signals do come right through the walls of our homes, those televisions and radios didn't just walk in and plop themselves down in our living rooms. We put them there. So, in a sense, this "TV as invader" logic has always been a little weak.

But let's ignore all that for a moment and return to the question of how this logic might apply to cable and satellite. Cable and satellite television are subscription-based media outlets. They require that consumers take affirmative steps (and spend a fair amount of money) to bring video programming services into the home. Cable television, for example, requires a monthly subscription that averages just under $40 per month for expanded basic service. Satellite subscriptions cost even more. Add the digital tier, a few premium channels, and a couple of set-top boxes, and you're probably well over $60 bucks a month. Thus, considering how much time and money adults must expend to bring these media devices into the home, the "media-as-invader" logic completely breaks down when you try to apply it to cable and satellite. These technologies are not "intruders" in the home; they are invited guests.

Moreover, the parental responsibility argument has to count for something here. Once parents spend this sort of money to bring media devices into the home, it does not absolve them of their responsibility to be good parents and monitor how their children use them. After all, parents don't bring other products home -- such as cars, weapons, liquor, or various chemicals -- and then expect the government to assume responsibility from there. But that is essentially the logic that some members of Congress are using to justify censorship of subscription-based television.

The real danger here is that we're moving toward a regulatory regime that holds that once a given technology becomes popular, and therefore more pervasive in the home, its First Amendment status changes. In other words, "popularity = pervasiveness," and that ends up triggering Pacifica-esque indecency regs. This is a very troubling notion, and it clearly isn't the standard our government applied to print outlets (newspapers & magazines) as they grew in popularity. Nor is it the standard we apply to the Net. (More on that below).

Worse yet, if "popularity = pervasiveness" does become the standard the feds apply to subscription-based media, it would mean some of the most popular channels on basic cable or satellite (Comedy Central, FX, USA Network) would likely be forced to migrate to premium or pay-per-view tiers in order to avoid the growing indecency enforcement net. If that happens, it will produce two unintended consequences. First, many cable subscribers will be forced to pay more--perhaps considerably more--to get the channels they currently receive as part of their subscription to the basic tier. Second, if those channels and viewers do migrate to other tiers, it will likely end up raising, not lowering, the cost of the basic tier. That's because the more popular shows in the basic tier often help cross-subsidize much of the less popular channels in the basic tier. [Read this filing of mine from last year to get a better understanding of the how the economics work here.]

But here's the really interesting question: If large numbers of viewers do flock to premium or pay-per-view tiers to get their favorite programming, does that mean the "popularity = pervasiveness" calculus will eventually apply to premium channels as well? Many will scoff at the suggestion that premium channels (like HBO) might be censored at some point in the future, but just a few years ago the notion that Congress would regulate any channels on cable or satellite networks seemed absurd. But now the heads of both Commerce Committees and the next likely chairman of the FCC have all embraced the idea. So, if 85% of Americans subscribe to HBO, why not regulate it under this new "popularity = pervasiveness" standard? And why not apply that standard to Howard Stern as he moves his popular radio show to satellite?

Stated differently, exactly how much money will Americans have to spend to escape the indecency cops?

(3) Bit Convergence and the Slippery Slope: I've always been fond of Nicholas Negroponte's theory that in our all-digital world, bits are bits are bits. All media is converging; it's becoming increasingly difficult to separate broadcast bits from cable bits from Internet bits. Heck, you can even get TV dramas and soap operas delivered directly to your cell phones now. So, what does this mean for our nation's indecency laws?

Consider Fox's outstanding drama "24." I'm absolutely addicted to this show, but I've never watched it live on broadcast television. I rented the first few seasons on DVD from Netflix and watched them straight through. I've recorded the current season on my new cable PVR and will watch it all that way one day. Fox offers video streams of clips from the show on it's website too. You can easily imagine a day when they offer pay-per-view downloads of the show directly from their website. And now they've developed a cell phone "mobisode" version of the show too. In other words, we can now watch versions of "24" on broadcast TV (or retransmitted via cable or satellite,) on DVDs, on cell phones, or via the Internet.

In the future, all media will be like this; platform-agnostic and hyper-ubiquitous. There will no longer be "broadcasting bits" or "cable bits" or "cell phone bits." There will just be bits. Lots of them. Everywhere. And when IPTV (Internet protocol television) kicks into high gear and gains the sort of steam we're witnessing behind VoIP today, all hell is going to break loose. Once a media bit is encoded, encrypted, transmitted, etc., there'll be almost no way to figure out what kind of bit it is, or even, in some cases, to know where it originated.

In a world where most media is digital, and much of it is Internet-protocol based, attempts by Congress to expand indecency regs to subscription-based media could eventually come to threaten the Internet as well. The question that will eventually come before the courts is this: How do we rationalize the Court's traditional legal treatment of broadcast media with the legal treatment accorded to new media technologies and the Internet in particular? Stated differently, what happens when the Court's Red Lion and Pacifica jurisprudence collides with the Court's post-Telecom Act jurisprudence for the Net?

Remember, in cases such Reno v. ACLU and Ashcroft v. ACLU, the court struck down attempts to apply indecency regulations to the Internet and made it clear that the existence of less restrictive, private censoring mechanisms--namely, cyber-filters that parents could use to screen Net content--were good enough to strike down congressional attempts to sanitize the Net for what was only fit for a child. Of course, these private filters are only as good as their last update, and many can be quite cumbersome to use. Regardless, the important point here is that their existence was treated as reason enough by the courts to avoid a federal censorship regime for the Internet.

If it is the case that Net filters are good enough to block federal attempts to censor the Net, then it certainly must be the case that the same principle applies to cable and satellite. After all, the filtering controls on cable and satellite set-top boxes are much easier to use than Internet filters. Parental controls are usually just one button-click away on our cable and satellite remote controls. Every digital set-top box includes parental screening capabilities with password protection. This comes on top of the V-Chip capabilities already built into your television. So you have these two lines of defense in addition to any other rules you set up for media use in your home. This is certainly superior to what is available to filter Internet activity. So if private filters are good enough to protect the Net, they should be more than adequate to protect cable and satellite where they are even easier to use, and probably much more effective.

Of course, none of this makes much of a difference to the lawmakers proposing to cast a wider censorship net. Many of them are just grandstanding here and using the bully pulpit to whine about media content. But I suspect many others are true believers in media control and want to regulate media content in the subscription-based space the same way they have in the broadcast space for so long. Indeed, many of them probably understand that, with cable and satellite already in 85% of all homes, we are at a major crossroads in the history of media regulation in this country. As that number grows even larger and the hegemony of traditional broadcasters continues to wane, lawmakers will come to realize that the strings they have used in the past to control media outcomes and content are being rendered useless by the relentless pace of technological change.

That's why I believe these current efforts are more than just harmless grandstanding. These lawmakers are laying the groundwork for an all-out assault on new media. Digital media is largely outside of their control and they want to rope it in. And this isn't just about content regulation. It's about educational mandates, free airtime for politicians (or at least regulation of election-related speech on the Internet), and even a potential Fairness Doctrine for the Information Age. (Think that sounds far-fetched? Read Cass Susntein's last book Republic.com for a sketch of how it would work. He proposes mandatory "electronic sidewalks" for Internet websites that would force website operators to carry links to groups with opposing perspectives.)

Of course, when all this comes before the courts, I suspect it will get shot down very easily. Pacifica was a close 5-4 call for broadcasting, but I would think most judges would quickly dismiss efforts to apply Pacifica's "pervasiveness" logic to subscription-based media outlets. Unless they are prepared to revisit and reverse their Internet jurisprudence, I think that's were they have to come down on this.

So stay tuned. If any of this congressional nonsense goes through, it will tee up the most important First Amendment case in decades.