Wednesday, August 31, 2005 - The Progress & Freedom Foundation Blog

The Coming FCC Push for Cable Censorship

Salon is reporting the FCC Chaiman Kevin Martin has been meeting privately with numerous religious and "pro-family" groups to coordinate to "address racy content on cable and satellite television." One of those who sat in on these meetings, Rick Schatz, president of the National Coalition for the Protection of Children and Families, told Salon that during these meetings "[Martin] said the free rein of cable and satellite and satellite radio is not acceptable," and that Martin is "committed to seeing something is done during his tenure."

This comes as no surprise, of course. While things have been quiet for the past few months, most industry watchers agreed that the reason for the delay on this front was that the pro-regulatory forces were quietly planning their attack on cable and satellite. As the Salon article makes clear, censorship proponents know they have an uphill battle and are tightly coordinating their efforts to radically expand the scope of federal indecency law.

This topic has been the subject of many PFF white papers and will also be discussed at great length in my forthcoming book The Future of Indecency Regulation in a World of Media Convergence. In this book, I will argue that we are witnessing a collision of jurisprudential visions that has profound ramifications for the First Amendment treatment of ALL media providers and forms of content.

In essence, ongoing media and technological convergence has placed a great deal of strain on the old analog-era, broadcaster-oriented model of regulation. Premised on the notions of "scarcity" and "pervasiveness," this regulatory model accords broadcasters the equivalent of second-class citizenship rights in terms of the First Amendment. Meanwhile, most other media outlets--from newspapers and magazines to the Internet--are accorded the gold standard of First Amendment protection.

As I argue in the book, this peculiar legal arrangement is unjust, indefensible, and ultimately unsustainable. A jurisprudence so radically divided cannot stand in an age of rapid technological convergence. Today, media and media outlets are blurring together thanks to the rise of myriad technologies and competitors, most of which ignore the distinctions of the past. It is now possible to watch or listen to the same piece of content on a broadcast TV or radio station, a cable channel, a satellite system, on a DVD player, on a cell phone, on a portable gaming system, or over the Internet. In this environment, media regulation in general, and speech controls in particular, will become increasingly complicated and intrusive as lawmakers attempt to apply the old rules to newer technologies and outlets. "The phenomenon of convergence has... rendered obsolete a regime in which differential content regulation is applied based on the technology used to deliver content," argued Jeff Eisenach and Randolph May of PFF in a 2000 FCC filing. In the future, therefore, an attack on one type of media outlet or technology could be tantamount to an attack on all media.

Ironically, Chairman Martin and his allies understand and accept the argument that media and technological convergence will require a rethinking of the law and leveling of the regulatory playing field. Unfortunately, however, they wish to level the playing field in the direction of less freedom of speech instead of more.

The problem with this "regulate up" solution to the level playing field problem is that it means almost any type of speech or media outlet in the future will be fair game for regulators. If Chairman Martin is successful in regulating basic cable next year, why not enhanced tiers or pay-per-view tiers after that? After all, did you know that, according to a recent Kaiser Family Foundation survey, 55 percent of children live in homes that subscribe to HBO? Does that mean that HBO is "pervasive" enough to justify differential First Amendment treatment? In essence, this is the logic Chairman Martin and pro-censorship supporters are using in defense of regulating basic cable--the fact that 85 percent of all U.S. homes currently subscribe--so why not apply it to Tony Soprano and everyone else on premium cable as well?

So, as you can see, the slippery slope is all too real here. Where does it end? Who knows. But in a world where television content is know being made available over cell phones, portable video game platforms, and Internet television (IPTV) systems, we have to seriously ask if the Internet and mobile media are next on the regulatory hit list.

For those interested in more extensive background on what is wrong--both morally and constitutionally--with these proposals to greatly expand federal censorship, I encourage you to check out these recent PFF studies and essays on the issue:

>> "New Worlds to Censor," by Adam Thierer, Washington Post editorial, June 7, 2005.

>> "Can Broadcast Indecency Regulations Be Extended to Cable Television and Satellite Radio?" by Robert Corn-Revere, PFF Progress on Point 12.8, May 2005.

>> "Thinking Seriously about Cable & Satellite Censorship: An Informal Analysis of S-616, The Rockefeller-Hutchison Bill," by Adam D. Thierer, PFF Progress on Point 12.6, April 2005.

>> "'Kid-Friendly' Tiering Mandates: More Government Nannyism for Cable TV," by Adam D. Thierer, PFF Progress Snapshot 1.2, May 2005.

posted by Adam Thierer @ 8:42 AM | Free Speech