Tales of the Sausage Factory: Michael Powell on Indecency

I’m reprinting below FCC Chairman Michael Powell’s Op Ed on indecency that appearedin the NYT on 12-3. As most of you know, I am a frequent critic of Powell’s ownership and broadband access policies, as I find him far too much the libertarian intellectual without regard to the practical impact of his policies. But on the indecency stuff, I think he raises some good points. My comments interspersed with his.

Don’t Expect the Government to Be a V-Chip

December 3, 2004

By MICHAEL K. POWELL

[With comments in brackets by Harold Feld]

Washington – TIME to take a deep breath. The high pitch at

which many are discussing the enforcement of rules against

indecency on television and radio is enough to pop an

eardrum. It is no surprise that those who make a handsome

living by selling saucy fare rant the loudest – it drives

up the ratings. The news media further fan the flames,

obsessed with “culture war” stories that slot Americans

into blue-state and red-state camps.

[I agree that the sky is not falling, but I don’t think it is as easy to cut the indecency stuff out of the culture wars as Powell believes. But indecency is only one symptom of a broader trend. In fact, the simmering anger in conservative camps over indecency is, IMO, part of what

fuels the so called “culture war” and the rage on the right. It is easy to feel under attack when you turn on the radio or television, flip the dials, and find nothing but programing you think is offensive. On the other side, if you are worried that free expression in America is being hi-jacked by social conservatives, it is not hard to see the furror over a nano-second of exposed bosom as evidence that THEY are on the move and will reduce everything back to 1950s I Love Lucy standards and practices if WE are not vigilant. So, as seems to be inevitable in public discourse these days, harsh words fly, and not just from the folks with a financial stake in things.]

[Back to Powell]

Overheated words, however, obscure what should be an

important debate over two American values that are, at

times, in tension. As one deeply suspicious of government

involvement in the regulation of content, I understand and

often agree with those who stand up for the cherished value

of free speech. But as a parent, I respect the desire of

the American people for a minimum level of decency on the

public airwaves – particularly where their children are

concerned. The often unenviable task of striking a balance

between these two competing values falls to the Federal

Communications Commission.

[Harold again: I got to agree with Powell spot on here. As readers of my earlier stuff on indecency know, I often feel as a parent that, no matter what I do to protect my 6 year old from content for which I feel he is not ready, I can’t screen out the world at large. Trying to put this all on the parents is like saying individuals have a choice about clean air and clean water so we don’t need environmental laws. Whatever balance we strike in society, pretending that parents can completely control the exposure of their children to broadcast material — or that concerned parents should home school their kids in a cave disconnected from society around them — is not a practical response for a large number of people with a real concern about the media environment.

And yes, I am equally concerned about commercialism and violence. That why I support the Children’s Television Act rules, public interest obligations on programmers to provide educational programming, etc. Again, it’s about balance.]

Broadcasters have always had the responsibility of making

decisions about what programs are appropriate. The majority

have done well.

[Can’t help but tweak Powell here on when the heck the FCC will decide the Petition by filed by independent affiliates more than three years ago that asked the FCC to address issues like rights of preemption (the FCC has rules governing how networks treat affiliates. About four years ago, the independent affiliates filed a massive Petition asking the FCC to rule whether certain contractual concessions demanded by affiliates violated those rules. Powell has sat on this Petition, continuing to promise that the FCC will deal with it RSN). If local licensees have the responsibility to make programming judgments, then they need to have confidence in their ability to reject programming. A bit of hypocracy there?]

In the history of broadcast television,

there have been only four indecency fines. Yet when certain

broadcasters trade responsible restraint for torrid

sensationalism in the relentless race for ratings, it

should come as no surprise that escalating calls for the

government to enforce indecency laws aggressively are the

result.

[A reminder for folks that the Jackson/Timberlake business did not kick this campaign off. It had been escalating for years. Most people just didn’t notice.]

[A bit of legal review for those just tuning in]

The F.C.C.’s job of regulating indecent content on the

airwaves is not optional; it has been required ever since

Congress first made the broadcast of obscene, indecent and

profane material illegal more than 70 years ago. The law

continues to enjoy strong bipartisan support.

[And, until recently, the big complaint by conservative groups was that the FCC was not serious about enforcement. But refusal to enfroce did not get much attention in mainstream press, so most people aren’t aware of it. But again, to understand the politics ofindecency, you need to understand that until 2004, the FCC was seen as “soft” of indecency, and Powell was regarded as loathing the indecency rules as infringements on free speech (that Libertarian thing again)]

[Back to the legal summary]

Even so, there are important limits placed on the F.C.C.

Our rules do not ban indecent content entirely; they merely

restrict its broadcast during times in which children are

likely to be in the audience, namely from 6 a.m. to 10 p.m.

Courts have consistently held these rules constitutional,

accepting that the government has a compelling interest in

protecting children from inappropriate material.

For material to be indecent in the legal sense it must be

of a sexual or excretory nature and it must be patently

offensive. Mere bad taste is not actionable. Context

remains the critical factor in determining if content is

legally indecent. Words or actions might be acceptable as

part of a news program, or as an indispensable component of

a dramatic film, but be nothing more than sexual pandering

in another context. That context and the specific facts of

each program are reasons the government can’t devise a book

of rules listing all the bad stuff. In 2001, however, the

agency issued policy guidelines summarizing the case law on

indecency, and each new ruling since then clarifies what is

prohibited.

[End background legal stuff. Back to fun.]

But we are not the federal Bureau of Indecency. We do not

watch or listen to programs hoping to catch purveyors of

dirty broadcasts.

[Although if they ever did, I would apply for that job in a minute. :-)]

Instead, we rely on public complaints to

point out potentially indecent shows. In recent years,

complaints about television and radio broadcasts have

skyrocketed, and the F.C.C. has stepped up its enforcement

in response. Advocacy groups do generate many complaints,

as our critics note, but that’s not unusual in today’s

Internet world. We are very familiar with organized

protests when it comes to media issues, but that fact does

not minimize the merits of the groups’ concerns.

[O.K., I gotta get this quote embroidered on a pillow. Next time Powell or Ken Feree (Powells buddy who heads up the Media Bureau) dismisses the two million people who filed comments against the FCC’s efforts in 2003 to eleiminate ownership limits as “mere emoting” or “organized foot stomping,” I’m gonna whack them on the head with this quote.]

Under the

law, we must independently evaluate whether a program

violates the standard, no matter whether the program in

question generates a single complaint or thousands.

When the commission makes the determination that a program

is indecent, we typically fine the licensee that broadcast

it. Although the commission has the authority to fine an

artist personally, we have never done so nor do I support

doing so. Over the years, fines had become trivial. A

routine violation generally received a paltry $7,000 fine,

with the maximum fine being $27,500.

[While small to megacorps, this does scare the (indecent execratory comment) out of small community broadcasters and the few remaining independents. Unfortunately, these are also the ones likely to do the most cutting edge stuff. So an unintended consequence of the current scheme is that the Viacoms and Clear Channels of the world view indecency fines as a cost of doing business and mass produce offensive bilge by the truckload, while the independents are scared off of doing genuinely innovative stuff.]

The agency has

increased penalties significantly, recognizing that they

must be large enough for billion-dollar media companies to

stop treating fines as a minor cost of doing business.

Some have also questioned why the commission is unwilling

to issue rulings before a broadcast, as was the case with

the recent network showing of “Saving Private Ryan,” a film

the commission had previously held was not indecent. While

ABC and its affiliates understandably would have liked to

know the program was in bounds before proceeding, the

precedent of submitting programming or scripts for

government review borders dangerously on censorship. The

Communications Act expressly forbids the F.C.C. from

banning a program before broadcast, and any such effort

might very well run afoul of the First Amendment. This is a

step I do not want to take.

[Ya know, when I first read this, I thought “feh, the FCC could issue advisory opinions no problem.” But then I decided Powell may have a point here. If the FCC began issuing advisory opinions, it would encourage networks to

submit anything even vaguely questionable, and indecency decisions would also consider that the broadcaster had failed to seek guidance as a factor weighing against the broadcaster, further reenforcing the need to get preclearance of stuff. Much as it pains me to say so, I gotta credit Powell with a score on this one.]

The commission’s indecency rules apply to broadcast

television and radio but not to cable, newspapers or the

Internet because the Supreme Court interprets the First

Amendment in a way that affords stronger constitutional

protection to these sources than to broadcasting. The

argument goes that broadcasting is different because it is

uniquely pervasive, with children having easy access.

Government can limit content in the public interest because

broadcasters use a public resource, the airwaves. Yes, it

is strange that First Amendment protections are weaker or

stronger depending on what channel you are watching, but

under current Supreme Court precedent that’s the way it is.

And I believe that any effort to extend regulation of

content to other media would be contrary to the

Constitution.

[My own feeling as a lawyer is that the law may change depending on how Supreme Court and other court appointments go. I suspsect conservative judges are more likely to find cable and other subscription services sufficiently “pervasive” and exposure to children sufficiently hard to control to warrant extending federal indecency rules to cable.]

We take all these limitations seriously and believe we have

acted in a balanced manner. If one slices through the

rhetoric, you’ll find that most opponents of the agency’s

strong enforcement efforts believe that the government

simply should not impose any decency standard at all.

Berating citizens who believe in values and reasonable

limits is insulting and polarizing and distracts from the

legitimate issues of this policy debate.

[Again, I find myself in agreement with Powell. Many people who think a blow by blow description (as it were) of sex in a church has no place on the radio, or that television shows that show all sort of sexual activity with just a fig leaf of pixilation goes to far for free, over the air broadcasting. To say that anyone who has such concerns automatically a religious fanatic desiring to supress any contrary views and reduce public discourse to the level of “Davey and Goliath,” as many who oppose indecency regulation do, doesn’t help move public policy along much and reenforces the myth that those concerned with “values” are under constant attack.]

Critics of the law

should instead focus their efforts on changing the law, if

that’s what they want.

[Hear, hear! Democracy in action, I always say. All Congress has heard from are those who want tougher indecency standards. If you want to get rid of the indecency rules, get crackin’]

Until then, the American people have

a right to expect that the F.C.C. will continue to fulfill

its duty of upholding the law, while being fully cognizant

of the delicate First Amendment balance that must be

struck.

Michael K. Powell is the chairman of the Federal

Communications Commission.