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Wednesday, September 20, 2006

My Filing in Latest FCC Indecency Proceeding
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For those of you following the potentially historic legal battle currently unfolding in the courts dealing with broadcast indecency regulation, you might be interested in the comments I filed at the FCC today.

Just by way of brief background, on September 7, the U.S. Court of Appeals for the Second Circuit issued a brief stay of the Commission's latest round of indecency fines and remanded them back to the agency. (The case is Fox Television Stations v. FCC, 2nd Cir., No. 06-1760). The FCC had requested the stay to allow the broadcast networks (and others) more time to provide input on the agency's fines. (In essence, the FCC wanted to make sure that the networks couldn't claim that they didn't have plenty of time to provide input to the agency.)

The comments I filed today in the proceeding are entitled, "The Current State of Parents Controls (and What it Means For This Debate)." In my filing, I argue that:

* The traditional rationales the agency relies on to regulate broadcast content -- that it is "uninvited" into the home and that parents are powerless to control it -- have been rendered moot by technological advances.

* In light of the extensive array of parental control tools, technologies and techniques available to households today [all summarized in detail in my filing], regulation can no longer be premised upon the supposed helplessness of households to deal with content flows since families have been empowered and educated to make content determinations for themselves.

* Not only are markets bringing parents empowering tools to filter and block content they might find objectionable, but this is being done much more quickly, much more closely tailored to the parents' own desires, and without concerns about censorship such as is associated with traditional government regulatory efforts.

* Importantly, even if parents are not taking advantage of all the tools and options at their disposal, their inaction should not be used to justify government regulation of programming as a surrogate for household / parental choice. Parents have been empowered. It is now their responsibility to take advantage of the tools and controls at their disposal to determine what is acceptable within their homes for their families.

* In light of these developments, I conclude that traditional "community standards" analysis has to give way to a new standard: "household standards." In a nation as diverse as ours, it would be optimal if public policy decisions in this field took into account the extraordinary diversity of citizen / household tastes and left the ultimate decision about acceptable programming to them.

I'm not holding my breath in expectation of a sudden reversal of course by the FCC on this front, but I would very much like the agency to provide the public with answers to the points I make above. Put simply, why is the agency still regulating like it's 1956 when 2006 technology gives parents extensive control over the content that enters the home?

posted by Adam Thierer @ 4:19 PM | Free Speech

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