By Randy Dontinka
With support from both Republicans and Democrats, the Federal Communications Commission is poised to get even more aggressive about enforcing moral values throughout broadcasting, even putting cable television in its cross hairs and taking aim at Howard Stern's right to talk dirty on satellite radio.
It looks like only the courts will stand in the way of the FCC now. But a funny thing could happen on the way to washing Eric Cartman's mouth out with soap: Conservative judges might just say no. After all, not too long ago the Supreme Court rejected efforts to censor the internet.
"As soon as those regulations go forward, they'll get challenged legally, and I think they'll fail," predicted Adam Thierer, who studies the media at the libertarian Cato Institute think tank. "But I'm not 100 percent certain."
After rejecting 83 percent of indecency complaints received in 2002, the FCC burst out of its cocoon in January after singer Janet Jackson's "wardrobe malfunction" on national television. CBS eventually got socked with a $550,000 fine, and a slew of other radio and TV stations found themselves under fire. Even PBS began leaning heavily on the bleep button, and last week, several ABC stations refused to air an uncut broadcast of Saving Private Ryan for fear that the FCC would issue fines for indecency. ("War is heck," said one newspaper headline.)
Currently, the stakes are fairly low for major media companies. The top fine is $27,500 per incident, although stations can be fined separately. After Jackson's exposure at the Super Bowl, the House tried to raise the maximum fine to $500,000, but the move was part of a larger bill -- the Defense Authorization Act -- and it foundered.
The FCC guidelines remain vague, making it unclear exactly what is allowed. "The FCC has been trying to hide behind ambiguity, but that ambiguity has problems," said attorney Andrew Jay Schwartzman, president of the Media Access Project watchdog organization.
The FCC could spell out the rules: This word is allowed, this word isn't; this is when you can show a bare breast or butt. Indeed, the FCC reversed itself over U2 singer Bono's exclamation at the Golden Globe Awards show and declared that the F-word is verboten even when it's not used in a sexual context. But while clearer rules sound good in principle, Schwartzman said they're unlikely to pass constitutional muster. "The various pending appeals are going to force the FCC to clarify, but once clarified I'm not sure things will stick up in court."
Some critics say the FCC has a death wish. By cleaning up network TV, they'll only send viewers to cable. "As more people (move) away from broadcast television, the FCC loses control," said Richard Hanley, graduate program director at Quinnipiac University's school of communications. "If anything, the FCC is acting to kill broadcast television, and in the process kill any chance it has of regulating content. It's committing, in effect, suicide."
But the FCC bureaucracy may try to survive by expanding its jurisdiction to encompass the alternatives -- cable TV, satellite TV and radio, maybe even the internet. Earlier this year, a Senate committee barely rejected a plan by Louisiana Sen. John Breaux, a Democrat, to allow the FCC to oversee some cable programming.
Breaux is retiring, but he's being replaced by a Republican, and the November election sent several new conservatives to the Senate. The House remains firmly in Republican hands, and the president is hardly a friend of shock jock Stern.
The Cato Institute's Thierer expects the new Congress to tackle the cable issue once again, and no one should expect the Democrats to put up resistance. "Speech controls are now more of a bipartisan issue, apparently," he said. "It's clear to me that a lot of people in Congress have few problems regulating speech in the media today."
Thierer thinks indecency-obsessed politicians will be careful, though. He predicts that while they would target cable television -- home to raunchy shows like South Park, which used the S-word 162 times in a single 2001 episode -- they will stay away from premium channels like HBO. When it comes to basic cable, he said, it's easier to use the argument that it's "pervasive" like broadcast television -- in other words, difficult for children to avoid.
There is a difference, of course. Broadcast television and radio are free and come uninvited into homes. Courts won't fail to notice that Americans shell out billions of dollars a year on cable, satellite TV and now satellite radio.
There's another potential stumbling block for the censors. The Supreme Court has balked at whittling away free-speech rights. "I wouldn't say that the courts have been all that conservative on this stuff," Schwartzman said. "The courts have been pretty good on these speech issues."
In several cases, including the one that killed off the landmark Communications Decency Act, the court said "we're not going to impose ... old sorts of rules on these new technologies in town," Thierer said. The court even stood by the Playboy Channel in a 2000 case in which it said citizens had the right to view sexually explicit material on a premium channel outside late-night hours.
The Supreme Court might be friendlier to the FCC on the issue of media consolidation, but the agency failed to push its proposed new rules into effect this year. Along with the usual Democrats, plenty of Republicans -- including powerful Mississippi Sen. Trent Lott -- balked at allowing media companies to consolidate even more. Meanwhile, a federal court sent the FCC back to the drawing board on several issues regarding rules about ownership of multiple stations.
At issue is whether the big media companies will be able to get even larger. "We might be able to hold things steady for the short term, but how long that will last we don't know," said Mitchell Szczepanczyk, president of Chicago Media Action, a watchdog group. "What's encouraging is that a lot more people know about these issues than had just two years ago. That gives me hope more than anything."
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