Government Regulation of Broadcast Content

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year 2004 was replete with news items about the “indecent” content
of broadcast radio and television. From Janet Jackson to Howard
Stern, it was difficult to find a week in which the media did not
present a story of some sort concerning indecency and the FCC's
efforts to "clean up the airwaves."

year 2005 will see some sort of government action in regard to taking
a stronger stand against what politicians and special interest groups
consider “broadcast indecency.” Already, House Telecommunications
Subcommittee Chairman Fred Upton (R-MI) has filed the new version
of his Broadcast Decency Enforcement Act. In the U.S. Senate, Sam
Brownback (R-KS) and Joe Leiberman (D-CT) have co-sponsored a Senate
version of the bill. Last year, there were hearings in House and
Senate subcommittees but the bill died in conference committee.
I won't get into the minutia of the 2005 bills but to give a taste
of what's inside – two of the provisions call for 1) fining broadcast
companies and the entertainers themselves as much as $500,000
per violation and 2) requiring the FCC to consider license revocation
after three violations. The only hope that this legislation will
fail to see the light of day is the same disagreement between Republicans
and Democrats over ownership concentration rules that sunk the bill
last year will rear its head again this year. President Bush is
trying to play both sides of the ball on this issue. In a January
30 interview with C-SPAN's Brian Lamb, he sounded the free speech
horn when he said, "They put an u2018off' button on a TV for a
reason." Then he quickly put on his big government hat and
said the state is responsible to "call to account programming
that gets over the line."

the broadcast companies have largely rolled over for the government
on the issue of indecency — several paying "voluntary contributions
to the Treasury" in order to wipe their slates clean of indecency
complaints — a group of broadcasters are now challenging the 1969
"Red Lion" Supreme Court case which established many of
the rules affecting broadcasters today. They are asking the Supreme
Court to review that decision. The crux of the Red Lion case was
the Supreme Court's acceptance of the notion that broadcast spectrum
is a scarce government resource. The broadcasters challenging Red
Lion argue that technology has changed the validity of that decision.
They hope that a reversal of Red Lion would open the broadcast industry
to the full protection of the First Amendment that the print media
enjoys — including greatly relaxed ownership regulations.

argument over who owns or has the rights to ownership of broadcast
spectrum goes further back than 1969. While the Supreme Court may
or may not review Red Lion, one thing is for sure. Plenty of folks
are itching to control broadcast content.

it's wrong

problem with the state continuing to issue mandatory guidelines
for broadcast content is that the premise upon which the federal
government first based that right is wrong at its very core — at
least from a free market capitalist perspective. And since the United
States was founded as a free market state and not a centrally planned
socialist state, we must address the issue from that standpoint.
Certainly, one could argue that America actually has become
a quasi-socialist state in which businesses (and private citizens)
must comply with oodles of unconstitutional rules and regulations.
But to admit that, throw up one's hands and cave in to whatever
interference the federal government decides to impose upon us is
wrong. It's un-American. At least it's un-American as the founding
fathers defined their new nation over 200 years ago.

observing the public debate over so-called broadcast indecency during
the past 12 months it has been interesting to note the fallacies
employed by advocates of government regulation. It has been especially
fascinating — and ironic — to observe the large number of conservatives
jumping up and down demanding the state "put an end to this

#1 — The airwaves are "public"

are two aspects to this that must be addressed separately. First,
the only reason the airwaves belong to "the public"
is because the federal government declared them so as part of the
Federal Radio Act of 1927. That's it. But the reality is that the
airwaves themselves aren't any more "public" than the
plot of land that composes your city or town. When it was first
discovered that we could encode audio and transmit it via radio
waves, the feds realized the potential military applications and
seized about half the spectrum and reserved it for military use.
They made the rest available for use by citizen operators. Yes,
there is a limited amount of spectrum just as there is a limited
amount of land in your community, for example. There is also a limited
amount of gold, diamonds, water, gravel, iron ore, maple trees or
whatever. Just because there is a limited amount of something doesn't
mean the state is right to commandeer it all and then "lease"
it to private citizens as long as they agree to use it the way other
people would like to see them use it. Let's face it; there is a
limited amount of just about everything.

government failed at the outset to treat broadcast spectrum like
the natural resource that it is. It should have been dealt with
just as land was in the time of the nation's expansion westward
— through homesteading as acknowledged by our common law. In other
words, the first broadcaster to set up shop on a frequency with
the intention of operating on it owns it. It worked with claims
on land and mines, why not spectrum? Unfortunately, that is water
long over the dam. The interference issue is another story but an
equally interesting and misleading one. For more on this
fascinating aspect of radio history, read B.K. Marcus' essay "The
Spectrum Should Be Private Property: The Economics, History, and
Future of Wireless Technology

second part of the public ownership fallacy that needs to be addressed
is the implied notion that because radio waves are sort of "everywhere
all at once," the people own them. They are not unlike the
air we breathe. The air moves all about us and we have little control
over the air that comes our way. But, unlike the air which we must
breathe with little selectivity, one must actually own a radio or
television set in order to receive broadcast transmissions and one
must then turn on the device and choose a channel.
Most people do this in their home or car — hardly a public place.
In fact, watching TV or listening to the radio is, in most cases,
a relatively private exercise.

#2 – Television and radio are necessary to life and as such, must
be regulated by the government lest great harm come to society

listen to proponents of broadcast regulation one would think that
"protecting the children" from seeing nipples, hearing
swear words and listening to talk about sex is something only the
federal government can do. Not once during the past year did I hear
a talking head or "concerned parent" say they don't let
their children turn on the television without permission. Nor did
I hear one say they make sure they know what their children are
listening to on the radio. And I certainly never heard anyone say
they don't let their children watch television after school or after
dinner and instead encourage them to read or play games or amuse
themselves in some other way. Every person weighing in on broadcast
indecency whom I heard made it sound as though all children not
only must watch television and listen to the radio but must be able
to do so without parental supervision. Which leads to…

#3 — Parents can't be everywhere, so the government must make sure
that questionable content can't reach children

children grow older, we as parents gradually allow them more time
outside of our immediate supervision. It's part of the process of
developing into an adult. We instruct our children regarding what
they are and are not allowed to do whether we are present or not.
For example, we tell them not to run out into the middle of the
street without looking both ways to make sure the way is clear.
We instruct them to do this whether we are walking alongside them
or whether they are walking alone or with friends. Similarly, parents
concerned about the media to which their kids are exposed instruct
them to ask permission to watch television or listen to the radio.
They are also given instructions as to what channels and programs
they are allowed to watch or listen to. Further, children are told
they are expected to abide by these rules whether the parents are
present or not. If they break the rules they will face the consequences.

the first example, to not do so would be akin to saying that parents
can't be everywhere and therefore it's incumbent upon the state
to make sure our children don't run out into traffic. Therefore,
all streets must have high fences surrounding them (at taxpayer
expense) in order to "protect the children."

need guidance during the course of their development and it is the
parents' duty to provide that guidance. The decision to abdicate
that responsibility is not a valid reason to require businesses
be subjected to government regulation so that poorly parented children
are not "harmed."

# 4 — If there were no government regulation of content, pornography
would be all over the television and foul-mouthed disc jockeys would
clutter the radio landscape

couldn't be more untrue. In order to thrive, television and radio
programs need advertising revenue. In cases such as HBO or satellite
radio they require subscription fees. Cable television operates
on a combination business model. A local, over-the-air pornography
channel would never survive because very few, if any, advertisers
would want to risk suffering the backlash from the community for
being associated with the channel. No advertisers, no programming.
Yes, adult channels thrive in a pay-per-view model and that is where
they are destined to remain. If radio were to move further into
the realm of “blue” material it would have a difficult time staying
in the black. Howard Stern has been so successful not because the
FCC keeps him behind the line but because he knows where “too far”
is – for his listeners and his advertisers. As it is, his
show is not successful everywhere. A dirty little secret about the
Howard Stern program is that despite its good ratings in many markets,
it is not so easy to sell on the local level in others. A number
of broadcasters (wishing to remain anonymous) have told me that
many local advertisers don't want to take the chance of being associated
with a show that is so controversial. His program is not carried
in many conservative markets for that very reason.

# 5 — The FCC is getting record numbers of complaints about indecency

at raw numbers, this might be true. But a closer look reveals that
an extraordinary number of complaints are coming from a very few
sources. The truth is that special interest groups and crusading
individuals are responsible for much of the volume of indecency
complaints filed with the FCC. The spirit of the law, which allows
citizens to file a complaint with the FCC, is being violated. The
intent was that a person who saw or heard something they believed
to be indecent or in some other way inappropriate, could file a
complaint with the FCC. What is happening more and more is that
special interest groups and high-profile crusaders are utilizing
the Internet to "recruit" complaints from people who never
actually saw or heard the incident material but are sympathetic
to the cause. They sign their names to pre-fabricated complaint
forms and send them off to Washington. In fact, Howard Stern himself
engineered one of these feats in response to an episode of the Oprah
Winfrey television show. It's not known how many people originally
complained about the Oprah program in which a frank discussion of
teen sexual practices took place, but after Stern enlisted his fans
to file complaints, many did. Is this illegal? No. But, it certainly
begs the question: How can one be offended by something one never
saw or heard?

not really about the children

of this leads to what I believe is the obvious conclusion. Most
of the people crying about “protecting the children” from "indecency"
really just want to force their morality on the broadcasting industry
and the consumers who view and listen to their products. The special
interest groups and individual crusaders wish to create a quasi-theocracy
in which their version of morality fits nicely. They’ll never put
it into such obvious terms, though. They tell broadcasters that
the “safe harbor” rule allows them to do whatever they want after
10:00 pm. There are two problems with this. First, they don’t really
mean it. I guarantee that if the daytime hours were cleaned up to
their satisfaction and all “blue” or "racy" material moved
to late nights and overnights, they would soon petition the FCC
to do away with the “safe harbor” rule because we know that some
teenagers stay up past 10:00 pm. Second, there is precious little
ad revenue to be made after 10:00 pm relative to the rest of the
day, especially for radio. It’s hardly indicative of a free market
economy to put such restrictions on business.

activists and legislators who are intent on strengthening the FCC's
stranglehold over broadcast content tip their hands regularly. Congressman
Fred Upton does so in the language of his Broadcast Decency Enforcement
Act when referring to "obscene, indecent or profane
material." Profanity is defined as language "characterized
by irreverence for God," according to the Random House College
Dictionary. If this bill becomes law, the FCC will determine if
broadcasters are being properly reverent for God.

a March 2004 editorial, Parents Television Council president L.
Brent Bozell III wrote that as a result of the Super Bowl broadcast,
… "Activists concerned about the degradation of the broader
culture have gone to Washington demanding action to protect the
airwaves they — and not Viacom — own." What does it mean to
guard against the degradation of the broader culture? What
guidelines could possibly be put into words to satisfy such a subjective
concept? It's a mystery to me how thinking people can fall for these
hollow arguments and not see the true motives of those behind the
movement for increased state control over television and radio.

we truly believe America is a free market capitalist society, our
only choice is to be for total deregulation of the broadcast
industry. Let the consumers choose what they wish to support or
not. That’s the American way.

4, 2005

Casey [send him mail] is
the managing editor of TALKERS magazine, the leading trade publication
for the talk media industry.

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