Government Regulation of Broadcast Content

The 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."

The 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."

While 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.

The 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.

Why it's wrong

The 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.

In 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 filth."

Fallacy #1 — The airwaves are "public"

There 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.

The 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."

The 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.

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

To 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…

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

As 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.

Using 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."

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."

Fallacy # 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

This 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.

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

Looking 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?

It's not really about the children

All 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.

Those 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.

In 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.

If 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.

February 4, 2005