Fear Of The FCC

The Federal Communications Commission (FCC) has come down exceptionally hard on broadcasters since the "wardrobe malfunction" at this year's Superbowl. It's so bad that now many TV stations are refusing to air Saving Private Ryan uncut on Veteran's Day, which has been a tradition since 2000.

One of the reasons it can't be cut is per contract with Steven Spielberg (similar deal he made for Schindler's List).

Why does the FCC have this measure of control over free public airwaves?

Their main authority is frequency allocation. They control what bands are used by the military, radio, TV, and all other communications equipment. They also investigate and stop any intrusions into a liscensed frequency range. Clearly this kind of control is necessary.

But control over broadcast free speech? And especially with such vague guidelines and in defiance of U.S. courts? Here is some data I gathered right from fcc.gov.

Indecency: "Language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities."

(Note however that this is different from obscenity; "Indecent programming contains patently offensive sexual or excretory references that do not rise to the level of obscenity." But that's just splitting hairs.)

Profane: "Language that denotes certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance."

My initial problem with this is the vague wording. Nowhere do I see "7 dirty words" or anything that clearly defines these standards. These standards are all up to interpretation, in other words any single individual can determine something is patently offensive or profane. Imagine if our driving laws were treated in the same way, just vague outlines with no posted or written limits:

Speeding: Any speed that is inherently dangerous as measured by community safety standards for travel, while taking into account such factors as pedestrian traffic, time of day and weather.

Wreckless Driving: Any speed or method of driving that is violently dangerous or so grossly endangers other travellers and pedestrians that it amounts to a niusance.

So speeding tickets would be entirely up to the civilian who thought you might be going too fast. Following the FCC enforcement example, the police would then perform an investigation to see if they think you were truly speeding or driving wrecklessly, then fine you if they decide you were indeed breaking the law. So in this example, not only is the witness biased (I'd probably say you weren't speeding, but if granny saw you then she'd file a report for sure), but the police also have their own bias...do they fine you, or overlook your crime?

Which brings me to my second point, the FCC does practice selective enforcement. They have no problem fining the balls off of Howard Stern, but they won't touch Oprah Winfrey...even when she does a show about teen sex acts after the Superbowl incident! The teens talk about such acts as "tossing a salad", a coded reference that Stern is no longer allowed to use for fear of FCC fines. In fact, the recent fines brought against Clear Channel were for Stern broadcasts over 2 years old.

The FCC enforces standards in two ways. One is that they fine the station, these fines have recently been increased to some astronomical amount (I believe it's 250,000 or 1/2 million) per incident. Meaning that if the FCC wanted to fine ABC for this year's Saving Private Ryan broadcast, they could level the maximum fine per station that airs the broadcast. For a big company like ABC that may be a bitter pill indeed, but one they could possibly afford to swallow. But an individual broadcaster?

The other way the FCC enforces standards is through their liscensing of the frequency band. Over 10 years ago, when Stern was again in hot water with the FCC, Infinity was preparing to take the FCC to court. But before they could bring the matter before a judge, all new liscenses and liscense renewels were stalled by the FCC, ie. not renewed. A media company not getting its frequency liscences renewed spells financial disaster.

Which brings us to my final issue, free speech. Here's the blurb on free speech from the FCC website: "Expressions of views that do not involve a 'clear and present danger of serious substantive evil' come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press. The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech." It goes on to say that, "This principle ensures that the most diverse and opposing opinions will be expressed, even though some may be highly offensive."

So free speech is guaranteed by the Constitution. The Communications Act prevents the FCC from censoring or passing a regulation that prevents free speech...even offensive speech.

But here's the killer, again right off the FCC website: "The Courts have said that indecent material is protected by the First Amendment to the Constitution and cannot be banned entirely. Nonetheless, the FCC has taken numerous enforcement actions against broadcast stations for violations of the restrictions on broadcast indecency."

So U.S. courts have protected indecent material as part of free speech, but the FCC has enforced their standards and punished broadcasters anyway.

Now even though I am a fan of Howard, I'm not a conspiracy nut or an anarchist. I simply don't see the need for the FCC to selectively enforce a vague decency standard. Either draft a set of clear rules on what can and can't be said, then enforce these across the board, or get out of the morality business altogether.