Will resurrected FCC indecency rules push more viewers to broadband?

Posted April 25th, 2011 in FCC, Government Regulation and tagged , by Alton Drew

An interesting post in The Wall Street Journal about the Obama administration’s attempt to have the U.S. Supreme Court re-instate the Federal Communications Commission’s power to enforce indecency rules. The lower courts, according to the Journal, view the FCC’s power to fine broadcasters for transmitting colorful metaphors as constitutionally vague.

Constitutionally non-existent is more like it. Potty-mouth speech, no matter how much we don’t like it, should not be regulated by the federal government unless that language is inciting a riot or some other violent crime.

In addition, I don’t see how fining a broadcaster for transmitting Bono’s use of the F-word increases consumer welfare. If anything, it may reduce it by making the supply of a certain type of programming unavailable.

The upside for content providers on the Internet is that driving consumers away from sub-par broadcast programming may create a reason for more broadband adoption by consumers who have a hankering for expletives and the artistically displayed sight of an exposed breast.

Ooops! Can I say that on the Internet?

Government should not be regulating decency

Posted July 14th, 2010 in FCC, free speech, Government Regulation, indecency and tagged , , by Alton Drew

I’ve been really impressed with our judicial system lately. The attempts to expand the interventionist tentacles of government have been thwarted not by Congress or the administrative branch but by the courts.

One of these impressive moments came yesterday when the United States Court of Appeals in the Second Circuit held in Fox Television v. FCC, that the Federal Communications Commission’s policy on decency violates the First Amendment because the policy is unconditionally vague and creates a chilling effect that goes beyond fleeting expletives.

In other words, the FCC has to be more specific in its regulation of decency than just saying we don’t like the use of an inadvertent f-bomb or the accidental baring of a breast at a half-time show.

In arriving at its conclusion, the court made a couple important points. First, the court raised the concern about the risk of subjective, content-based decision-making and its negative impact on the First Amendment. Do we want the FCC to say, “we’ll allow ABC to show a movie where f-bombs are dropped throughout a movie because the movie depicts real events, but we want the f-bombs edited from a documentary on NBC that discusses drug intervention.” Where would the FCC draw the line on indecency?

Second, because the FCC’s standards for identifying indecency are indiscernible, are not clear upon inspection, this alone creates an environment for discrimination against one person’s speech. In other words, I woke up this morning and something about the lines in that documentary rubbed me the wrong way, so I’m going to say it was indecent. Talk about throwing cold water on free speech.

The court only addressed the FCC’s policy. It did not go so far as to call section 1464 of Title 18 unconstitutional. According to the language in the law, “whoever utters any obscene, indecent, or profane language via radio communications will be fined under this title, or imprisoned not more than two years, or both.” The statutory basis for FCC rules on decency still exists.

What will the FCC do next? According to FCC Commissioner Copps, expect the FCC to appeal the decision. The FCC will have its work cut out for it. The U.S. Supreme Court has already showed a preference for corporate speech in its recent ruling regarding limits on campaign donations by corporations. It may not buy an argument from the FCC that it should be allowed to regulate decency on a standard that basically says, we are going to regulate it in this medium but ignore it because it takes place in another medium.

That to me would be indecent.