The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Friday, April 02, 2004

FCC's Powell delivers the blackmail note to broadcasters

As we know, FCC Chairman Michael 'Sonny Boy' Powell has his heart in the right place when it comes to broadcast censorship. His statement to the House Telecommunications Subcommittee included a number of choice quotes on the subject (mentioned here on March 14).

But circumstances alter cases. After softening up by Congressional artillery on the concentration of ownership issue [1], a phalanx of legislative Big Berthas were drawn up following the wardrobe malfunction to pound the FCC for its lax and ineffective enforcement regime on indecency, as well as the industry for its devotion to smut.

The National Association of Broadcasters called a Summit on Responsible Programming for March 31 - to which Powell was invited to give the keynote address (PDF).

Jeff Jarvis (whence cometh the links) rightly senses that Powell has naught for our comfort, and picks out some choice passages for well-deserved ranting.

Powell's strategy seems to be to play the apparatchik: he points out that the indecency provision (18 USC 1464) has been on the books for a long time - and with criminal penalties attaching [2]. The FCC has enforced its rules inconsistently, tending towards leniency: but the industry has repaid it by brazen challenges to its authority.

His nut graf is this:
It is your "publicness" that also invites strong governmental oversight and interest. The ability to limit these intrusions and protect your commercial viability depends heavily on policing yourselves. I think this industry must set a higher standard commensurate with its privilege as public trustees and with its own traditions. Setting your own standards is your best defense.

Just in case those present were unable to distinguish the outline of a horse's head, he refuses to provide an FCC ruling to give the industry some measure of certainty:
You do not want to ask the government to write a "Red Book" of Dos and Don'ts. I understand the complaint about knowing where the line is, but heavier government entanglement through a "Dirty Conduct Code" will not only chill speech, it may deep freeze it. It might be an ice age that would last a very long time.

You do not want to ask sounds as if he's been watching too many mob movies. Chill, deep freeze, ice age: he really sticks with the metaphor he came in with.

And his final warning - quoting himself! - is
We should think twice before allowing the government the discretion to filter information to us as they see fit, for the King always takes his ransom.

Paging Mr Revere...

However, Powell was a pussy-cat (comparisons with Daddy?) compared to Commissioner Michael Copps. He would appear to be the Wolfowitz of the operation.

Whereas Powell is almost apologetic in tone, Copps is a zealot, channelling Kyle's Mom, and then some.

He has a side-swipe at concentration of ownership -
Particularly in this age of huge media conglomerates, the unforgiving expectations of the marketplace have more influence than they once did in driving media behavior.
- but seems angriest at the FCC itself:
If the agency charged with putting the brakes on has no credibility with those who are programming indecency-if it commands no respect on the issue because it runs away from the issue-is it any wonder that the envelope gets pushed farther and farther out?

Copps leads, not with codes of conduct, but strong FCC enforcement. But he does want a tough new code - one, in fact to outdo the FCC in its scope:
My challenge to you is to put the FCC on the enforcement sidelines by eliminating indecency on the airwaves.

And he's looking to bring satellite and cable under censorship:
Because cable and satellite are so pervasive, there is a compelling government interest in addressing indecency when children are watching.

Has Copps the votes in the Commission to get his beefed-up enforcement regime started? I have not a clue what the internal politics are: the bios of the Commissioners give not much idea as to the positions each is liable to take. Partisan differences don't seem to apply much - if the voting on HR 3717 is anything to go by.

The need becomes all the more apparent for a litigation strategy aiming to get existing rules as well as any new law struck down as infringing the First Amendment. Who's taking the lead on this?

  1. The FCC relaxed the rules, and an unholy alliance of lobbies cut up rough (November 15 2003).

  2. Pieces on the intricacies of the law on March 27 and March 25, most recently.

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