Broadcast Media and the State – An Unhealthy Partnership

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by Kevin Casey by Kevin Casey

Recently, I've written a number of articles for LRC relative to the continuing assault on the First Amendment by the Federal Communications Commission, Congress, and various special interest groups. Many LRC readers no doubt have a waning faith in the traditional broadcast media to bring them accurate, or at the very least, unbiased news and information. One can hardly blame you if you fall into that category. So why spend time and energy being concerned with what happens to radio and television? The answer to that is twofold. One, just because it's broken doesn't mean that it can't be fixed. But more important, this current feeding frenzy by bureaucrats, politicians and special interest groups on the broadcast media is a visible example of big government claiming more control over the daily lives of its citizens.

Regulation of content

Legislators in Washington are still wrangling over the bills in the House and Senate designed to seriously hike fines and to require license revocation hearings for broadcasters found in violation of indecency rules as interpreted and administered by the FCC. The latest addition to the bills already circulating through both chambers of Congress is "The Indecent and Gratuitous and Excessive Violence Broadcasting Control Act of 2005" co-sponsored by Senator Kay Bailey Hutchison (R-TX) and John Rockefeller (D-WV). This bill will address five issues: One, review the effectiveness of the v-chip and require alternatives if legislators don't like what they see; two, double the required amount of children’s programming from three to six hours per week; three, require new and improved content warnings; four, hike the indecent content maximum fine to $500,000 with a $3 million, 24-hour cap; and five, provide local broadcasters time to review network programming in advance to determine if it is appropriate for their local audience.

Hutchison joins Arkansas Republican Senator Ted Stevens, Michigan Republican Congressman Fred Upton and a number of other Republicans who are front and center on the indecency crusade. Interestingly, it wasn't long ago that Republican politicians, backed by conservative radio talk show hosts and pundits in other media, purported to believe that government should stop mucking up the workings of American businesses (of which broadcasting is one) with its suffocating regulations. In fact, conservatives pummeled Hillary Clinton for the underlying theme of her 1996 book, It Takes A Village. As you recall, the book implies that all members of society, especially government, are responsible for raising our children. Back then conservatives rightly condemned this claptrap. Now, it seems even conservatives believe it really does take a village to raise a child.

Senator Kay Bailey Hutchison obviously concurs. Consider her statement upon unveiling this new bill. "Our children have too many opportunities to see and hear gratuitous violence and sex on our airwaves. If our broadcasters are not willing to voluntarily protect our children, then it is the responsibility of Congress to step in. Broadcasters do not have a constitutional right to flood the airwaves with excessive violence and sex."

Ah, but they do, Senator (as long as neither is deemed obscene). Our responsibility as parents is to make sure they don't have the opportunities of which you speak. But, I guess that would require actual parenting.

Even the new chairman of the Federal Communications Commission is inconsistent in his stand on state regulation of broadcast media. Kevin Martin, who took over for the recently departed Michael Powell, describes himself as a proponent of deregulation, much like Powell. But, what exactly does that mean? Martin's deregulation philosophy appears to apply mainly to the rules limiting ownership — not necessarily to content. He recently spoke at the annual National Cable and Telecommunications Association's convention and told the industry that Congress — not the FCC — decides whether cable content is regulated or not. True. But, he went on to tell the attendees that more and more parents are concerned about their kids seeing coarse material on television and the cable industry would be wise to take action.

The thinly veiled threat of regulation is obvious. In the past he has stated that he is "sympathetic to the many people calling for the same rules to apply to everyone u2014 for a level playing field. Something needs to be done.”

Broadcasters are intimidated

Instead of fighting for their First Amendment rights in the courts, broadcasters, with very few exceptions, are rolling over. Many are latching onto the argument that there indeed needs to be a "level playing field" upon which regulation of the content on subscription services like cable and satellite TV and radio would fall under the purview of the FCC. Perhaps this is the reaction the feds were hoping for all along — tricking the broadcasters into asking for more regulation! Can you imagine a slave demanding not his own freedom, but the enslavement of his neighbor in order that "everything be equal?"

Comcast CEO Brian Roberts is reported to be so nervous that he's considering not renewing the Howard Stern cable TV show on his E! Channel. This in spite of the fact that the E! Channel is not regulated and the fact that the show airs after 10:00 pm ET — a time of day known as the "safe harbor," when regulations even for over-the-air broadcasters are greatly relaxed. The point here is not whether you believe Howard Stern's content is good, but that a cable operator is considering not renewing a popular, profitable program because he fears the state, even though no regulations exist for him to violate!

On April 19 at the National Association of Broadcasters 2005 convention in Las Vegas, a roundtable discussion will take place titled, "Come Together, Right Now! Broadcaster Town Meeting on Indecency and Responsible Programming." It will feature moderator Jeff Greenfield of CNN talking with broadcasters David Barrett of Hearst-Argyle, Gary Chapman of LIN, David Kennedy of Susquehanna, Mark Mays of Clear Channel, Jeff Smulyan of Emmis, Tony Vinciquerra of Fox and Vicky Rideout of the Kaiser Family Foundation. The NAB describes the panel as a discussion that "will illuminate the need for responsible programming and provide a town hall-style forum to identify issues and alternatives to government regulation of program content. Among other things, the broadcast industry panelists are expected to discuss voluntary initiatives taken by their respective companies in response to indecency concerns.” In other words…we're scared to death but we don't want to risk going to court to challenge these crazy rules in this stifling political climate.

But wait, there's more

News Corporation chief Rupert Murdoch is seeking to have the federal government oversee the ratings mechanisms by which television and radio stations and networks are ranked. Why would he do this? He believes that the local people meter (LPM) method of achieving ratings results developed by Nielsen will underreport his stations because of what he (and others) perceive as imperfections in the technology. So he and a number of legislators are asking bureaucrats, who have little or no knowledge of the broadcasting industry, to be the watchdogs. The television and radio ratings methods always have and always will be inaccurate as long as they are based on small samples and then tweaked to "make sense." The state can't fix an already inexact science. When conservative businessmen are asking the government to regulate their businesses, one can indeed conclude these are strange times in which we live.

Does it do harm to you or your family if a song you hear on the radio is played because some cash or goodies changed hands to make it happen? New York Attorney General Eliot Spitzer thinks so. He's been investigating payola in the Empire State. So far, no great evils have been uncovered but an investigation is underway.

Why is it illegal for people to pay to get their songs played on the radio? Some people believe the world would be a better place if artists' songs were given airplay based strictly on the beauty of their music. Besides the fact that beauty is relative, that's not a realistic prospect. So, why should the government spend precious taxpayer dollars to investigate whether or not 50 Cent's latest effort is on the radio because it's a good song and not because his record company slipped the radio station a few bills? Who are we protecting? Is it because the integrity of the egalitarian music business is at stake? Please! Pay for play should be legal. If and when consumers find out that record companies pay to get their artists' songs on a radio station then people can make up their own minds as to whether they still want to listen to the station.

Government admits it has failed (sort of)

U.S. House Commerce Committee Chairman Joseph Barton (R-TX) recently announced that he believes the Telecom Act of 1996 needs to be re-written "from scratch." That means everything from ownership rules in TV and radio to cable, Internet, telephones, satellite and more could all face brand new, all-encompassing regulations. Barton admits the chore of accomplishing this is enormous so it might be wise to hold off on the indecency issue as well and include those regulations into one big enchilada (my metaphor, not his). One can only conclude that if a regulation bill that is only nine years old is so out of date and/or poorly written that it needs to be completely revamped, then how qualified can the federal government be at overseeing a business it clearly doesn't understand very well?

We need to let broadcasters do what they do best — provide programming content. We as consumers can decide if we want to view it or listen to it. As parents, we can do the same for our children. Then Congress can take on more important things like steroids in baseball and interfering with individual family medical decisions.

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

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