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
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.