The Fcc And Its Obsolete And Tenuous Decency Regulations

Lynne Kiesling

Here’s a Wired magazine article from the October issue on the FCC and indecency rules. It does a nice job of highlighting the First Amendment problems with FCC regulations, and it pointed out something that I didn’t realize: their ability to regulate content over airwaves is a function of the purported scarcity of spectrum:

Until now, the government’s censorship powers have been limited to the airwaves, on the grounds that they alone use spectrum. But with politicians left and right in a mad scramble for “decency,” the increasingly flimsy technological rationale that allows the government to intrude on broadcast content is being conveniently forgotten.

The theory dates from the 1920s: The airwaves are a scarce public resource, so Washington must license them and insure that they’re used for the public interest. That means no f-bombs, no sphincter talk, and absolutely no nipples at the Super Bowl. When cable and the Internet came along, the Supreme Court held that the government can’t regulate their content because scarcity isn’t a problem. But how much longer will spectrum scarcity be something to worry about?

Thanks to the dynamic creativity of recent years, spectrum is increasingly plentiful in a technical sense, but for the regulatory barriers that keep its artificial veneer of scarcity. New technologies that allow spectrum use with minimal or no interference, because of things like digital packets that allow layering, change the landscape. These changes may soon mean that spectrum scarcity is much, much less pressing, and its uses much less in the hands of an anointed central authority. If that spectrum plenitude removes the legal justification for FCC decency regulation, so much the better.

But one other consequence of technological change is also playing out simultaneously — new technologies that use spectrum but are substitutes for “public” airwaves increasingly enable content providers to do an end-run around obsolete, command-and-control regulation. I think this is why all of us civil libertarian types cheered the Howard Stern move to Sirius, even if we think his content is abominably juvenile.

But how will the existing regulatory apparatus respond to all of this? The Frank Rose Wired column cited above notes that members of Congress were tripping over each other to make sure that they got to be first in line to decry recent “indecent” content on broadcast television, and to make sure that the FCC punished it good and hard. And apparently a majority of US residents applaud government restrictions on content:

If spectrum isn’t scarce, why set aside the First Amendment as if it were? Politics. In January 2003, when Bono blurted out “F***ing [LK edits] brilliant!” before 20 million viewers while accepting a Golden Globe award, the FCC received fewer than 250 complaints. But Washington knows a crowd-pleaser when it sees one. In its latest annual survey of Americans, the First Amendment Center found that 65 percent thought the government should restrict sexual references on broadcast TV; 55 percent thought it ought to do the same with cable. After an FCC staff ruling that Bono’s fleeting remark didn’t warrant punishment, Congress rose up as one. Powell promised action. Then Janet Jackson’s breast popped out amid the erection pill ads and the farting-horse beer commercial during the Super Bowl. Within weeks, the full commission ruled that Bono’s award-show utterance had violated federal indecency standards, which bar profanity from the airwaves.

Overlooking the obvious inconsistency and hypocrisy in such situations, here’s my basic question: why do we even retain the concept of public airwaves? Of people who choose to have a television, most have access to cable or satellite, costs are declining, the 80-year-old allocations of rights to use the public airwaves have not kept up with technological change (think how much more easily the transition to HDTV would be going if spectrum were not allocated through its Baroque regulatory process), and notwithstanding all of that, people are going off the broadcast reservation for everything from news to tittilation (pun intended). I see no persuasive argument for why public airwaves and the regulation thereof continues to be in the public interest.

Perhaps the answer is politics. Broadcasters continue to have a lot of political power, even as they see their business models and their credibility diminish. Combine that with the willingness of enough of the American people to be told what they can and cannot watch because “it’s for the children” and you get a potent coalition for retaining the status quo.

And of course part of the problem is that the definition of “public interest” is as antiquated and obsolete as the technology on which the concept was honed. In telecommunications the public interest interpretation has focused on decency and access. In electric power the public interest interpretation has focused on keeping residential prices low. These overly narrow and static definitions of the public interest do not recognize the dynamic changes that actually bring the most benefit to the public — technological change and robustness of a complex adaptive system.

FCC Chairman Powell talks a mean game about Schumpeterian dynamism. It would be nice if a political dynamic existed that would enable him to serve as an intellectual leader in this issue and not cave to backward-looking political sycophancy. But at least our increasing ability to do end runs around the old broadcast world will make it increasingly irrelevant, as content richness and variety develops elsewhere.