The Future is Not Built on Indecency Regulations
The Future is Not Built on Indecency Regulations
The Future is Not Built on Indecency Regulations

    Get Involved Today

    The FCC has a positive role to play in the world of
    media, but not through antiquated indecency regulations for broadcast.

    As Congress considers Obama’s nomination for FCC chairman,
    it is a natural time to also consider the ongoing role of the FCC. Many
    laypeople think of the FCC as the language police, or the nudity czar, but
    regulating content is only a small part of its job. The FCC was created to
    regulate communications in the public interest – does that mean it should
    control the content of broadcast programming? Even if content restricting rules
    were once appropriate, has their relevance gone away given the new realities of
    the communications marketplace?

    These questions were raised before the
    Supreme Court
    last year when Fox challenged the FCC’s latest
    indecency regulations, which were being used to fine Fox for “fleeting
    expletives.” Public Knowledge, together with other organizations, submitted a
    brief asking the Court to limit the FCC’s authority to regulate indecent
    content in broadcasts, which is out of step with modern technological realities
    and inconsistent with the First Amendment.

    The Supreme Court found that the new indecency policy was
    unconstitutionally vague, but it declined to address the core free expression
    issues. That leaves the FCC free to determine if indecency regulations are in
    the public interest, at least for the time being. We recently filed a letter
    with the FCC asking it to ensure its policies do not conflict with the First

    Note that the FCC can only regulate indecency in broadcast
    television and radio – not cable, not satellite TV, and not the internet.
    That’s because the ability to regulate indecency stems from a Supreme Court
    decision in 1978,
    at a time when broadcast TV and radio dominated the media landscape, and
    alternatives were either rare or simply didn’t exist yet. Because of the unique
    “pervasiveness” of broadcast, and the uncontrolled access children had to it,
    the Court held in 1978 that it didn’t have the same First Amendment protections
    that other media do.

    Of course, the situation has radically changed in the last
    35 years. Now the vast majority of Americans use cable, the Internet, and home
    DVD and blu-ray players to watch content, and have access to a host of tools to
    control what content their children have access to. In this context it no
    longer makes sense (if it ever did) to limit First Amendment protection for
    broadcast speakers.

    So how can the FCC best serve the public interest? The last
    thirty years have seen an explosion of media technologies that have given
    citizens access to more information than ever before, and consumers have made
    these technologies part of their daily lives. The FCC should facilitate this
    kind of innovation, promote competition, and encourage the diversity of media
    content that has made technologies like the Internet so valuable to us.
    Indecency regulations are outdated, but the FCC does have a positive role to
    play in managing the public airwaves, by licensing private services and  by making unlicensed spectrum “commons”
    available for anyone to use.

    We no longer live in an age when one single medium dominates
    our access to information, and we’re better off for it. Continuing to restrict
    content on some platforms but not others is not only antiquated, it privileges
    certain technologies by hampering others. The FCC should focus on protecting
    and promoting a vibrant market in communications services, and not on
    regulating the speech of a small number of speakers. 

    Original image by Flickr user baekken.