The danger of the FCC, a continuing saga
: Reason has an illuminating (which is to say alarming) interview with FCC Chair Michael Powell in its December issue. It’s not yet online, so I’ll do some typing….
: What enrages me most is Powell’s justification for his upsurge of censorship and fines against broadcasters. What’s changed in the last six years? Reason asks. Well, nothing, Powell says, as he explains that they don’t investigate indecency independently but only respond to complaints, and then he adds:
What has happened in the period you’ve identified is indecency complaints have skyrocketed.
Hold on one minute. Skyrocketed? I will, of course, refer you to my little scoop that revealed only three people bothered to write letters to the FCC to cause its largest fine in history (and only 20 more Xeroxed them). That is not skyrocketing. That is not a flood of complaint. That is a few letters from a few crackpots. And on that basis, Michael Powell abandons his once-strong defense of the First Amendment for the sake of cynical politics.
: What frightens me most is that Powell acknowledges it makes no sense to regulate broadcast specially in a time when only 11 percent of Americans get their TV over rabbit ears — yet he won’t say whether that means he wants to try to extend regulation (read: censorship) to cable… and the internet.
The editors of Reason read a quote to Powell: “Rather than continuing to engage in willful denial of reality, the time has come to move forward toward a single standard of First Amendment analysis that recognizes the reality of the media marketplace and respects the intelligence of American consumers.”
Surprise, surprise: It’s a speech of Powell’s from 1998. Now he says: “To suggest that we bend the First Amendment for one industry singularly is to do hazard to our most cherished principle.” And so, which way does this go: No censorship of broadcast? Clearly, that’s not what Powell’s saying. So then does censorship extend to cable… and satellite… and the internet? He’s not saying.
Later, he repeats the nonstatement: “…Do I think that the First Amendment should be less protective of broadcasting than it should be of cable? I don’t particularly.” I take that as a veiled threat. This, too:
Powell: I think it will be increasingly difficult to argue for content-premised legislation for broadcasters only.
Reason: Does that mean Congress is going to extend content regulation further into cable or other traditionally nonregulated areas, or does it mean they give up trying to regulate broadcasting?
Powell: Well, what Congress choses to do is anyone’s guess. But I would say this: There’s an enormous sledgehammer on the other side: the First Amendment and the way courts view it.
Many in Congress are, indeed, trying to extend regulation to cable… and then who knows what comes next.
These people have to be stopped.
: He issues another vague threat, saying that indecency and profanity are “in the criminal code, which means John Ashcroft could theoretically go try to slap handcuffs on you. No nobody expects that, but there’s nothing about that statute that says otherwise.”
So Powell says he’s only enforcing the law and has no choice but to levy all these fines. Then he turns around and says the attorney general has the choice not to enforce the law. He doesn’t even try to be consistent and logical on the issue.
: Reason asks whether the FCC should be shut down. He doesn’t answer that question, either.
: Separately, Susan Crawford responds to my post suggesting that we get a conference together to envision killing the FCC. She says it more positively and intelligently but the moral to the story is the same: We should imagine what would be possible if the FCC were not there making things impossible.