The Progress & Freedom Foundation Blog

* In 2001, the FCC fined a noncommercial radio station $7,000 for playing the song "Your Revolution" by award-winning poet Sarah Jones. The song included frank sexual references about lyrics in rap songs that Jones felt were misogynistic and degraded women. Jones had been invited to perform the song before many audiences including high school students. But suddenly, in February 2003, the agency reversed itself and ruled that that the song was not indecent and rescinded the fine against the radio station that played it.

* Also in 2001, the FCC imposed another $7,000 fine on a different radio station for playing a rap song. In this case, the "radio edit" of a song by popular rapper Eminem was found to contain enough explicit sexual content to be considered indecent. A year later, however, the agency reversed itself saying that the references were not explicit or graphic enough to warrant a fine.

* In its 2003 Golden Globes Awards decision, the FCC originally ruled that the fleeting use of a single profanity (the "F-word") was not per se illegal, only to revisit the issue five months later and reverse course due to congressional pressure to impose a fine.

* In late 2004, 66 ABC broadcast television station affiliates refused to air Steven Spielberg's critically acclaimed war film "Saving Private Ryan" citing fears that they could be fined for the coarse language uttered by soldiers while under fire. Acknowledging these concerns, the FCC finally released an order declaring that the film was not indecent. But the agency's decision in the "Saving Private Ryan" case did little to clarify the law since it generally concluded that a critically acclaimed, award-winning film by a famous director, which vividly depicted an important historical event, was not indecent. Under that standard, many other films could theoretically pass the test, including: "Born on the Fourth of July," "Malcolm X," "Raging Bull," and "Goodfellas." But it remains hard to believe that the agency would allow those movies to air unedited.

The inherent vagueness of modern indecency law, therefore, will be a key part of the broadcast industry's legal challenge to the new indecency fines. Instead of providing greater clarity, yesterday's mega-fines just muddy the picture even further.

The Silliness of "Scarcity" and "Pervasiveness"

But broadcasters will also have a strong case against these fines for another reason: The world has changed in amazing ways in the years since the old regulatory standards were established. You will recall, of course, that this whole regulatory house of cards is built upon the flimsy rhetorical foundation of just two words: "scarcity" (via the Red Lion decision) and "pervasiveness" (via the Pacifica decision).

There have always been serious problems with the scarcity and pervasiveness rationales for America's schizophrenic media policy. What is increasingly obvious to most observers, however, is that these rationales for asymmetrical regulation will not work in the modern media environment. Red Lion's "scarcity" rationale is now an absurd basis for regulation in light of the sheer volume of media at our disposal. And the problem with Pacifica's "pervasiveness" standard as a regulatory rationale is that it proves too much; it could cover anything public officials deem to be widely available or "uniquely accessible" to children.

FCC officials recognize that scarcity-based rationales aren't going to work anymore and they rarely bother mentioning Red Lion in their decisions these days. In fact, the FCC itself has acknowledged the death of scarcity rationale in an important, but overlooked report last year from the agency's Media Bureau entitled: "The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed." Author John Berresford, a staff attorney with the FCC's Media Bureau, refers to the scarcity rationale as "outmoded," "based on fundamental misunderstandings of physics and economics," and "no longer valid." All that is left now is for the right case to come before the Supreme Court to drive the final stake through the heart of Red Lion and the scarcity rationale.

Thus, because the FCC recognizes that the scarcity rationale is intellectually bankrupt, the agency is now placing all its chips on a Pacifica-based "pervasiveness" defense. On pages 3-4 of yesterday's order, the agency again recites the famous passages of the Court's extremely narrow holding in the 5-4 Pacifica decision. The entire paragraph form the FCC's order is worth reprinting here because this is what the entire future of broadcast indecency law hinges upon:

The Court [in Pacifica] noted that the Commission's authority to regulate indecent broadcast material is justified by two primary considerations, both of which are equally, if not more, applicable today. First, the broadcast media occupy "a uniquely pervasive presence in the lives of all Americans." Indecent material "presented over the airwaves confronts the citizen, not only in public, but also in the privacy of their own home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder." "Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content." Indeed, while the Supreme Court's observation regarding the pervasiveness of the broadcast media dates back to 1978, the ubiquity of television in the lives of Americans has only increased in the intervening 28 years. Second, the Supreme Court observed that "broadcasting is uniquely accessible to children, even those too young to read." This finding is even more relevant today given the increased accessibility of the broadcast media to children.

Importantly, in a footnote attached to that last line, the FCC defends its belief that "This finding is even more relevant today given the increased accessibility of the broadcast media to children" by citing a recent Kaiser Family Foundation study that 99% of children 8-18 have a television set in their home and that 68% of children 8-18 have a television set in their bedroom).

The problem with this argument is obvious: All those televisions didn't just magically appear in our homes or in our kids' bedrooms. Parents put them there. Those sets are not "intruders" in any sense of the word. They are invited guests in our homes that we can kick out any time we want. And for those 68% of parents who allow their kids to have televisions in their bedrooms, I have to ask: What the heck are you thinking? I have lost all sympathy for any parent who tosses a TV into junior's room and uses it as an electronic babysitter. Get that TV out of their room! Regardless, you have no right to call government officials in to act in loco parentis and regulate all programming in the name of "protecting children" if you've surrendered your first line of defense by letting your children have a TV set in their bedrooms.

The Level Playing Field

But there's another, bigger problem today for the FCC's application of the "pervasiveness" rationale: It just applies to broadcast television and radio. Thus, the third prong of the broadcast industry's potential legal attack against these new fines will be a "level playing field" argument. Again, whatever sense the pervasiveness rationale made in the late 1970s when Pacifica was handed down, that logic just doesn't work in our modern world of media abundance and information overload.

Indeed, the truly ironic thing about the FCC's claim that they are handing down all this big fines "for the children" is that kids today are increasingly tuning out broadcast choices and tuning into to a variety of UNREGULATED new media outlets and technologies. Kids are now getting a significant portion of their information and entertainment from the Internet (think GoogleNews and "MySpace.com"), blogs, iPods & MP3 players, cell phones, PlayStation portables, TiVos, cable & satellite networks, and so on. Sure, a lot of kids still watch broadcast TV too. But are they really "consuming" that much more broadcast TV than alternative media sources? Surveys show that the highly-coveted 18-34 year-old demographic is turning away from "over-the-air" TV and radio in large numbers and the migration will likely continue and pick up serious steam in coming years. (Incidentally, 85% of all Americans already subscribe to cable or satellite television, meaning that only a small minority of homes continue to rely exclusively on over-the-air antennas to pull in a TV signal).

So, this means that traditional broadcasters are getting doubly screwed. Some of their most prized viewers / listeners are flocking to alternative media outlets and sources in large numbers, and those competitors do not face the same rules that continue to shackle broadcast TV and radio networks or stations. Again, does this policy make any sense? Shouldn't everyone who provides content in this competitive environment be treated equally in the eyes of the law? If the First Amendment protects speech on all those new media sources, shouldn't it also protect speech on broadcast TV and radio outlets? And what about all that broadcast content going out to the masses over those alternative distribution channels /devices? Why is it that an episode of "Lost" or "CSI" is given full First Amendment protection if downloaded from the Net and viewed on a video iPod, but that same episode is only accorded second-class citizenship in terms of First Amendment rights when it is shown on a broadcast TV station? Again, I ask: Does this all make any coherent sense? Of course not! The rapid pace of media convergence and technological innovation has made the old regulatory standards increasingly illogical and largely unworkable. (In my forthcoming book on "The Future of Content Controls in a World of Media Convergence," I discuss these issues at much greater length).

The FCC and its supporters will disagree, of course, but they will be on increasingly weak intellectual and legal footing in arguing for the continuation of an asymmetrical regulatory policy that unfairly singles out one set of speakers relative to all others. Moreover, in continuing to unfairly single out broadcasters relative to their many competitors, regulators could be writing a premature death warrant for "free, over-the-air" television and radio. If the FCC continues to act as a national nanny and force broadcasters to air only the sort of bland fare that 5 unelected officials at the FCC say is "good" for us, then the masses will continue their gradual migration to alternative media outlets.

Self-Help Solutions

Finally, the broadcasters will have another powerful legal argument in their favor: technological self-help. That is, parents can also tap the many new screening and filtering technologies at their disposal to limit their children's access to certain content. In striking down the Communications Decency Act's effort to regulate underage access to pornography, the Court argued in Reno v. ACLU that a law that places a "burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving" the same goal.

Many "less restrictive alternatives" are available to parents today to help shield their children's eyes and ears from content they might find objectionable. In addition to the "V-Chip" capabilities integrated into all televisions today, which give parents to ability to screen content by ratings, cable and satellite set-top boxes offer locking functions for individual channels so that kids can't watch without a password. Parental controls are usually just one button-click away on cable and satellite remote controls. Every digital set-top box includes parental screening capabilities with password protection. Parents can also request that cable companies block specific channels entirely.

VCR, DVD players, personal video recorders (PVRs), and home computers also give parents to ability to accumulate libraries of preferred content for their children. If certain parents believed that their children should only be raised on reruns of "The Lone Ranger" and "Leave it to Beaver," then these new media technologies can make it happen. To use a personal example: My wife and I have developed a strategy of designating a specific television in our house for almost all our children's media consumption and then using a PVR to amass a large library of programming we believe is educational, enriching and appropriate for them. Dozens of programs can be cataloged and achieved in this fashion and then supplemented with DVDs and computer software. Needless to say, such content tailoring was not an option for families in the past.

Thus, parents have many constructive alternatives to government censorship at their disposal. The courts will recognize this point when they review the FCC's latest decisions.

Conclusion

So, to reiterate, I believe that the FCC's actions yesterday will spark a major court challenge by broadcasters that will likely be based on a 4-prong strategy:

1) The inherent (and increasing) vagueness of FCC indecency policy (especially its recent determinations);

2) The intellectual bankruptcy of the "scarcity" and "pervasiveness" doctrines underpinning traditional broadcast industry regulation;

3) The blatant unfairness of the un-level playing field that now exists between broadcasters and alternative media providers / technologies; and,

4) The existence of technological self-help / private screening tools and technologies as a less-restrictive means of solving the problem of children's exposure to unwanted media in the home.

I look forward to this legal challenge and I will predict that it will result in a historic First Amendment decision sometime in the next few years. The broadcasters have a very strong case and the FCC will be hard-pressed to defend their increasingly arbitrary, unfair and unworkable indecency enforcement policy.