The Electric Commentary

Tuesday, January 25, 2005

The FCC won't let me be and let me be me...

Andrew Sullivan and Ahren both link to a list of 36 indecency complaints recently rejected by the FCC. Buzzmachine has the full list. Read it, it's terrifyingly hysterical. All of the complaints were filed by a conservative group headed by this right-wing nut who runs this website which seeks to expose left-wing media bias whether it exists or not (for instance, in South Park, an obviously right wing/libertarian show).

This begs the question, why do we have an FCC in the first place?

Good question.

It all started when we learned how to broadcast information over the airwaves. This was a great technology and the people saw that it possessed unlimited potential to expand learning and understanding. Or, failing that, it possessed unlimited potential for people to watch other people eat horse testicles for money. Whatever.

The important point is that the electromagnetic spectrum was "a commons." If it was left in the public domain, every able producer of television and radio would crowd out every other producer and leave the new medium in worthless chaos. The solution to this problem was to establish private property rights out of the commons. This is always a good idea. When you establish property rights two good things happen. The former "commons" now has a guardian, and it also has someone who will use it efficiently.

Enter the FCC. It granted licenses for certain areas on the EM spectrum. This was a noble purpose. Unforunately, it is at this point that our story takes a turn for the worse. The FCC, rather than just selling licenses to the highest bidder, also required that the stations operate in the public interest, watch their language, and occasionally broadcast educational programming (MTV does this at 3:30 am, Monday morning). This was the beginning of the FCC's content regulation.

Fast forward several decades. Now we have these indecency guidelines. And all of this stuff. And this too. But don't worry, they're very concerned about freedom of speech:

The FCC and Freedom of Speech.

The First Amendment and federal law generally prohibit us from censoring broadcast material and from interfering with freedom of expression in broadcasting.

Individual radio and TV stations are responsible for selecting everything they broadcast and for determining how they can best serve their communities. Stations are responsible for choosing their entertainment programming, as well as their programs concerning local issues, news, public affairs, religion, sports events, and other subjects. They also decide how their programs (including call-in shows) will be conducted and whether to edit or reschedule material for broadcasting. We do not substitute our judgment for that of the station, and we do not advise stations on artistic standards, format, grammar, or the quality of their programming. This also applies to a station's commercials, with the exception of commercials for political candidates during an election (which we discuss later in this manual).


By now I'm sure you're asking yourself, "doesn't the first amendment prevent them from having content-based regulation?" Well, sort of.

It is important to remember that the First Amendment, important as it is, doesn't really amount to a hill of beans without the separation of powers. (Example: The following is Article 125 of the Soviet Constitution:

ARTICLE 125. In conformity with the interests of the working people, and in order to strengthen the socialist system, the citizens of the U.S.S.R. are guaranteed by law:
freedom of speech;
freedom of the press;
freedom of assembly, including the holding of mass meetings;
freedom of street processions and demonstrations.


These civil rights are ensured by placing at the disposal of the working people and their organizations printing presses, stocks of paper, public buildings, the streets, communications facilities and other material requisites for the exercise of these rights.

Enough said.)

Putting freedom of speech in the hands of a federal bureaucracy is a risky proposition. While the FCC's original purpose may have been establishing property rights, that task has become less important over time. With cable and satellite, the broadcast spectrum has increased immensely. As a result, over time they have simply morphed into a content-regulating body which caters to special interests (like any other federal bureaucracy). But we don't live in the Soviet Union, so why doesn't someone put a stop to this?

This is the crucial point. Because the FCC still controls the licenses of all of the broadcasters, it still has power over them. Before a station can challenge a ruling by the FCC, it has to think long and hard about its next license renewal. Broadcast licenses are worth billions of dollars and angering the FCC over a small indecency fine is sometimes not worth it. And, of course, stations will also self-censor in an effort to appease the licensing board.

Most FCC fines are clearly Unconstitutional. Content-based regulation of speech by the government must clear a high hurdle to prove itself Constitutional, and if challenged, most indecency regulations would probably fall (exceptions for obscenity, fighting word, etc., notwithstanding). However, the FCC dangles the power of the license over its subjects' heads like the Sword of Damocles.

The solution to this problem is to separate the body that grants licenses from the body that regulates content. Then, poor gasoline on the body that regulates content, and set it on fire. This will probably never happen, but fortunately it looks like cable and satellite providers may eventually replace broadcast TV, at which point the FCC will have nothing left to regulate. They may try to take a swipe at the new media (they do regulate them right now, but take a more hands off approach), but as the number of channels increases, licenses decrease in value and the power of the FCC decreases with it.

So, it seems that the best protection for the First Amendment (aside from the separation of powers) is simply to have a lot of people speaking.

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