The FCC, Indecency, and the Rule of Law

Call it a victory for the rule of law.  And a victory for common sense.

On July 21, the U.S. Court of Appeals for the Third Circuit overturned the Federal Communications Commission’s fine against CBS televisions stations for airing the Janet Jackson Super Bowl incident.

As you might remember, this was the so-called “wardrobe malfunction” involving Justin Timberlake that allegedly traumatized millions of children watching the Super Bowl halftime show.  Activist groups mobilized, Congress jumped in, and the FCC swiftly cracked down on “indecency” in an abrupt departure from its decades-long policy of restraint toward “fleeting” incidents.

However, the Third Circuit concluded that the FCC had reversed its policy in a manner that was arbitrary and capricious without adequate notice to broadcasters.  In doing so, the Commission had violated the Administrative Procedure Act, the court found.  In essence, the court told the FCC that it can’t do whatever it feels like doing in response to the winds of public opinion or the grandstanding of certain politicians.  

That’s the right decision.  Yet the ruling was greeted in many quarters with reactions ranging from keen disappointment to outrage, as if the indecency crackdown were an end that should be justified by any means.  As John Eggerton reported in Broadcasting & Cable, even the FCC chairman was “surprised” and “disappointed.”  In our judicial system, however, the rule of law trumps personal feelings and public opinion – even the “public opinion” of mass e-mail campaigns orchestrated by activist groups.

So far, the Second Circuit and now the Third Circuit have rebuked the FCC for its recent approach to indecency enforcement.  In response to the Third Circuit’s decision, FCC Chairman Kevin Martin noted “the importance of the Supreme Court’s consideration of our indecency rules this fall.”  He’s right about that – and we trust the Supreme Court will be the next judicial body to get it right.
 

Those “Outlaw” Television Networks?

George Carlin’s death on June 22 came only days before the 30th anniversary of what has become his legacy in Washington policy circles: The U.S. Supreme Court’s Pacifica decision.

That ruling centered on Carlin’s comedy bit "Seven Words You Can Never Say on Television" (commonly known as the “Seven Dirty Words” routine), and guided the FCC’s enforcement of so-called “indecent” broadcast content for the next 30 years.

The Parents Television Council took the opportunity of Pacifica’s anniversary July 3 to hammer the networks for daring to challenge the FCC’s indecency-enforcement regime.  “The broadcast medium remains uniquely pervasive," said PTC President Tim Winter.  “It’s time for the broadcast networks to obey the law instead of undermining it.”

The networks have indeed challenged a number of FCC indecency findings in recent years, reaching U.S. Courts of Appeal in the Second and Third circuits, and now the Supreme Court.

But the challenges have revolved, for the most part, around how the FCC defines and then goes about enforcing its indecency standards (now with a new emphasis on profanity as well) – rather than on the underlying law. 

The question has generally been whether the FCC’s interpretation of the law is valid, and whether the FCC is applying that interpretation in a way that is not arbitrary and capricious.  The networks have every right to challenge the FCC’s interpretation and actions, as they are presently doing.  That does not make the networks lawbreakers, as Mr. Winter disingenuously implies. 

Cross Ownership: That ’70s Show in the Senate

There they go again. No, not the FCC.  This time it’s the U.S. Senate, still worried after all these years that the same company might own a newspaper and a TV station in the same market.  The Senate recently passed Senate Joint Resolution 28, which cancels a very modest attempt by the FCC to relax the newspaper-broadcast cross ownership rule in the nation’s top 20 media markets.

In effect, the Senate is saying that ownership of newspapers and TV stations should be restricted just as it was in 1975 when the rule was adopted – when viewers in big cities were lucky to get six over-the-air channels, and “cable” was still the “community antenna” in rural areas.

The effort to relax or even eliminate the cross ownership ban has gone on for years, even as the FCC was repealing virtually all of its other ’70s-era ownership restrictions.  The FCC’s action on Dec. 18 wasn’t much, but it was still too much for a Senate that’s apparently afraid to move out of the 1970s.

John F. Sturm, president and CEO of the Newspaper Association of America, summed it up when he said: “It is incomprehensible that Congress would shackle local newspapers – and only newspapers – with a ban that fits the eight-track era, but not the iPod world we live in.”

There is no logical reason for the Senate to act this way.  Could the reason be political?  Congress and the FCC are routinely barraged with mass e-mails orchestrated by various interest groups.  The magnitude of these mailings can appear far greater to policymakers than it really is.  Think of the man behind the curtain in "The Wizard of Oz."

A popular policy target of such groups has been “media consolidation,” always portrayed as a looming evil.  But in today’s economic environment, multiple ownership of media outlets has become an economic necessity – a matter of survival. 

Critics fear that “consolidation” will result in fewer voices and viewpoints reaching the public.  The real danger, however, is that media voices will be lost as struggling newspapers and broadcast outlets are forced out of business, suffocated by antiquated rules that prevent them from taking advantage of the economies of scale that come with multiple ownership.

It will be ironic indeed if the anti-consolidation forces triumph, leaving us with less rather than more media diversity.  The politically timid Senate is playing right into the critics’ hands.  It’s time for our solons to pitch their eight-tracks and reach for an iPod.