Why Regulate Broadcasting (Thierer-PFF)

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Adam Thierer

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I. INTRODUCTIONOn June 15, 2006, President George W. Bush signed “The BroadcastDecency Enforcement Act,”

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which increased the maximum fine that theFederal Communications Commission (“FCC” or “Commission”) can im-pose on broadcast TV and radio licensees for violations of the agency’sindecency regulations.

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Under this law, the FCC now has the authority tolevy fines of $325,000 per violation with a $3 million cap per violator,

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representing a ten-fold increase in fines above the previous $32,500 limit.

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The measure received widespread, bipartisan support in Congress, pass-ing in the U.S. House of Representatives by a vote of 379–35 after itcleared the Senate unanimously.

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Proponents of the legislation claimed thatit would “protect American families”

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specifically by shielding children’seyes and ears from potentially objectionable or “indecent” content.Despite these proclamations, it remains unclear that boosting fines willdo much to change the complexion of modern broadcasting, or protectchildren from potentially objectionable content. Indeed, in deliberationsabout the pending legislation, there was almost no discussion of the many

†

Senior Fellow, The Progress & Freedom Foundation (www.PFF.org) in Washington,D.C. and the Director of the PFF’s Center for Digital Media Freedom.

1

Broadcast Decency Act of 2005, Pub. L. No. 109-235, 120 Stat. 491 (amending 47U.S.C. § 503(b)(2)).

2

Press Release, The White House, President Signs the Broadcast Indecency Enforce-ment Act of 2005 (June 15, 2006) [hereinafter President Signs the Broadcast Decency En-forcement Act],

available at

http://www.whitehouse.gov/news/releases/2006/06/20060615-1.html.

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Broadcast Decency Act, 47 U.S.C. § 503(b)(2)(C)(ii) (2006).

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See

47 C.F.R. § 1.80(b)(1) (2004).

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See

Frank Aherns,

The Price for On-Air Indecency Goes Up; Congress ApprovesTenfold Increase in Fines FCC Can Assess

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, June 8, 2006, at D01.

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President Signs the Broadcast Decency Enforcement Act of 2005,

supra

note 2.

432 COMMLAW CONSPECTUS [Vol. 15

factors that have changed in the seven decades since broadcast regulationwas established under the Radio Act of 1927 and the subsequent Commu-nications Act of 1934. For example, at no point during the public debatesleading up to passage of the Broadcast Decency Act of 2005 were the fol-lowing questions seriously debated either in Congress or at the FCC:(1) Has the traditional “scarcity-based” rationale

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for regulating broad-cast uniquely been eroded by the rise of media abundance?(2) Does increasing media/technological convergence and cross-platform competition undermine the logic behind, and effectiveness of,broadcast-specific regulation?(3) Has the “pervasiveness” rationale (i.e., the

FCC v. Pacifica Foun-dation

standard)

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for broadcast regulation been rendered moot by newmarketplace/technological realities?(4) Has the FCC’s broadcast indecency process become arbitrary andoverly susceptible to special interest influence?(5) Have parents been empowered to make household content determi-nations for themselves? If so, is parental control a less-restrictive alterna-tive to which the government is now constitutionally compelled to yield?(6) Finally, for the above reasons, have we reached the limits of the“it’s-for-the-children” rationale for broadcast regulation, especially sinceparents have been empowered and children are increasingly flocking toalternative media sources beyond over-the-air broadcasting anyway?If any one of these questions could be answered in the affirmative, itwould call into question the continued sensibility of asymmetrical regula-tion of the broadcast industry. As this article will illustrate, however,

eachof these questions can be answered in the affirmative.

Broadcasting is nolonger scarce or “uniquely pervasive.”

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Citizens—especially children—gettheir information and entertainment from a wide variety of sources. Andthere now exists multiple layers of parental control tools and methodswhich families can use to establish their own “household standard” as op-posed to the one-size-fits-all “community standard” that regulators havetried to apply for decades.Consequently, the recent imposition of stiff financial penalties on broad-casters, which are just one segment of our modern, multichannel, multime-dia universe, is both radically unfair and an almost completely ineffectivemethod of shielding children from potentially objectionable content. In theaggregate, therefore, these fines are largely meaningless—except to thebroadcast entities that will be forced to pay large sums to the governmentwhile competitors air whatever they please.

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See

discussion

infra

Part II.A.

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See

FCC v. Pacifica Found., 438 U.S. 726, 748–49 (1978);

see also

discussion

infra

Part IV.

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See Pacifica

, 438 U.S. at 748.

2007] Why Regulate Broadcasting? 433

What makes this situation particularly insulting to broadcasters is that theindustry today stands at a crucial crossroads. The marketplace hegemonythat radio and television broadcast networks and stations once enjoyed haseroded rapidly in recent years. Decades of dominance has been undone bythe rise of countless new competitors and technologies, including: cableand satellite television; satellite radio; VCRs and DVDs; the Internet andthe World Wide Web; blogging; social networking; podcasting; portabledigital music and video; gaming platforms; and the many other multimediainformation and entertainment services.Thus, the broadcast industry’s dilemma can be succinctly stated: Howdoes it compete in this new environment with one arm tied behind itsback? Each of the competing media technologies and providers listedabove share one common trait: they are left (largely) free to conduct theirbusiness affairs as they wish. Generally speaking, there is no “public inter-est” regulation of the Internet, Web sites, cable and satellite networks orprograms, or other new media outlets. Thus, broadcasters face many oper-ating restraints that are solely applicable to them, including a hodge-podgeof media ownership restrictions, local and public affairs programming re-quirements, educational and children’s programming mandates, politicalair time regulations, and so on.

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It is the unique set of speech controls that broadcasters face which are of the most concern in light of the serious First Amendment issues

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that suchasymmetrical regulation raises. Indeed, America’s media policy is nowstuck in what might be described as a jurisprudential “Twilight Zone.”Speakers using the Internet or print outlets (i.e., newspapers and maga-zines) are guaranteed the utmost First Amendment protection, while thoseusing broadcast radio and television to speak are accorded the equivalentof “second-class” free speech rights.

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Meanwhile, cable and satellitespeakers are caught somewhere in the middle with the courts generallygranting them much more freedom than broadcasters receive, but not quiteas much as speakers using the Internet or newspapers. And while it re-mains to be seen how emerging media technologies and outlets will betreated, they have largely evaded regulation to this point. Table 1 depictsthe resulting legal confusion.

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See

Media Bureau Info. Res. Materials, http://www.fcc.gov/mb/facts/ (last visitedApr. 14, 2007) (providing a collection of the FCC’s Media Bureau fact sheets on variousbroadcast regulations).

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U.S. C

ONST

. amend. I (“Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .”).

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For an excellent overview of the ways in which broadcasters are treated differentlythan other media, see Drew Clark,

Just Another Toaster

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