The danger of the FCC, a continuing saga

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.

  • I simply can’t wait to hear how you square this with Blog Publishers Association. How much possible ‘contemplating’ could there be about such a ridiculous thing? “We can’t possibly imagine what would be possible if the BPA were not there making things impossible.”
    I’m sure that you dudes will have a nice conference or ten, though.

  • Speaking of “imagine what would be possible if the FCC were not there”, Jeff would you be OK with having explicit sexual scenes and full nudity on broadcast TV? This is a likely (though probably unintended) result of your goal of removing the FCC’s content regulation authority.

  • I read the entire interview in Reason and I don’t think Powell is more inconsistent than any other FCC head in recent memory (and he’s vastly preferable to Reed Hundt). He’s under incredibly pressure from Congress, already wary of his deregulatory approach regarding media ownership and telecom, and despite the three complaints about Fox, I don’t doubt they really have received more complaints than usual over the past few years. As a person who works in Congress, I can say that most comments are the high-tech version of Xerox: blast-fax, mass petitions written exactly the same, people calling all day reading the same script. Of course it’s fake, but they share the sentiment enough to use it for themselves and shouldn’t be marginalized simply because they don’t take 20 minutes to write an individualized letter.

  • Michael

    “but they share the sentiment enough to use it for themselves and shouldn’t be marginalized simply because they don’t take 20 minutes to write an individualized letter.”
    Absolutely agree with you here. If I have an opinion, and someone else is more expressive and a better writer, why can’t I use their letter and add my signature to the bottem (with permission, of course). That doesn’t mean the original author is the only person expressing that opinion. I’m tired of this “only 3 people objected” spin…or buzz, as it were.

  • JP

    Someone should begin operations to flood the FCC with letters — not standard complaint form letters, but with a form letter stating:
    “I’m an intelligent, American citizen who was raised to be accountable for my own actions and the parental guidance of my children. I have a remote control for my TV and radio and I know how to use it. The person responsible for safe-guarding my children from things they should not see or hear and preventing them from copying scenes from TV is me. Myself and my family know that a human breast is not indecent, that violence on TV is not an excuse to commit real life violence, and that four-letter synonyms for words exist. Since your bureau is not intelligent enough to realize that a small sample size of America is offended by the majority of the horrendously unentertaining and poorly developed programming on TV, I have decided to file this complaint against the FCC.”

  • Michael

    JP – according to Jeff’s logic, if this form letter was sent in by 10,000 people, it still would only be 1 legitimate statement.

  • Michael: Pick your number — 3 or the 3 + 20 who Xeroxed — it’s still ludicrous and democratically offensive that such a small number of people can restrict the rights of so many.

  • Michael

    I agree, any attempt to enumerate an acceptable (or unacceptable) reaction level is silly.
    You mention people’s “rights” that are being restricted. I’m wondering if you could say more. Which “right” is paramount: the right of a broadcaster to air whatever they want, the right of a viewer to see whatever she wants, or the right of a different viewer not to see what she finds offensive?

  • The right of free speech, Michael.
    That viewer can use her off button. I can’t turn on what’s no longer there.
    The Constitution assures the people’s right to speak — not the right of the few to censor.

  • Michael:

  • Michael

    I agree, Jeff. It seems, however, that those various “rights” often get confused and conflated in these discussions.

  • While the tech wizards will, in a reasonably short time frame, solve most of this, there is a basic “moral” problem on sex — more so than on violence.
    In violence, most TV violence is always “bad”, unless it’s necessary in use by good guys against bad guys. Not very confusing.
    Quite different than sex. For married couples, sex is good. For unmarried people, society is mixed on whether sex is good. For children, sex is bad. This is inevitably confusing, and leads to too much sexual activity among young people, and the mistakes of such actions.
    There is a fairly strong belief that many religious folk have that promiscuos sex is generally bad — immoral. There is a LOT of anectdotal evidence that promiscuity among poor people leads to more poverty. (Do you believe this? If not, do you have any evidence for your counter-belief?)
    Raising taxes to pay for the “poor”, when the poor are being “immoral”, seems a clear case off imposing one set of morals (permissive), and in particular forcing responsible Christians to pay for immoral non-Christians. I sincerely think this is grossly unfair, and hypocritical.
    When you take the strong “Libertarian” pro-dirty words in speech, in public viewing, in support of ending (immoral) “victimless crimes” — this has to be matched with a shift in financial responsibility to those who choose be immoral. I don’t think you honestly support freedom to act “immorally”, while forcing the moral folks to pay for the bad consequences of the immoral actions.
    I think you dishonestly support an “immoral” imposition of costs.
    Which, by the way, is why I’ve changed away from an L-Libertarian; the culture needs to accept paying the consequential costs of individual immoral behavior BEFORE getting the freedom to act immorally.
    Leftists always want to just raise taxes (on the rich!). Like Kerry.

  • Chap