Broadcast Indecency Enforcement Is Just a Symptom of Bigger Cancer

In a Reason magazine article, Jesse Walker identifies the reason why I’m always uncomfortable with the FCC’s anti-indecency efforts:

“You needn’t like Clear Channel to recognize that an FCC which revokes licenses and imposes draconian fines isn’t going to refrain from penalizing college stations and low-power broadcasters. “

Indeed, as I’ve noted before, this is very true, and has happened before, especially to Pacifica during the 50s and 60s.

However, by simply focusing on the free speech angle you loose the fact that the ability for the FCC to police the airwaves is based upon a system of licensed oligopoly. The FCC’s police power is specifically justified as an escape valve for the fact that the airwaves have been allocated as an extremely limited resource, where not everyone who wants a station is able to own one, even if she has enough money to buy a good transmitter and studio, and hire an enormous full-time staff.

This justification is explicit in Supreme Court precedent, FCC v. Pacifica.

By comparison, there is no equivalent policing agency for the press or any other printed speech. Aside from the occasional publicity-hound DA who wants to pursue an obscenity case, any person with access to a printing press, photocopier, typewriter or pen and paper can distribute whatever form of “indecent” matter she wants, with little fear of fines or prosecution.

Why? Because there is no “scarcity” argument. The government is not in a position dole out licenses for printers to act in the public trust. If you can buy a printer or press, you can use it, no permission necessary.

So, the root problem is not the FCC’s ability to police indecency and its current zeal to do so. No, the problem is the licensing system itself, that selects licensees, and then gives them a monopoly license for a broadcast frequency worth millions in return for almost nothing, except a few promises.

Combined with a nearly-complete watering down of any public obligation or ownership restriction, the US system of broadcast spectrum allocation and licensing is singularly responsible for the near-monopolies of Clear Channel and Infinity/Viacom. The extent to which these corporate pirates flagrantly violate the rules that they agree to obey as corollaries of their licenses is a direct outcome of the massive economic power they have amassed for fractions of cents on the dollar, thanks to the FCC.

Quite unfortunately, indecency enforcement is one of the last legal methods for getting at the likes of Clear Channel for their obscene violation of all standards of public trust and responsible broadcasting. The simple reason for this is that all other checks and balances in the system have been evicerated.

Yes, from a principled standpoint the daytime ban on indecency is wrong. But so is the enforced scarcity of broadcast licenses and the FCC’s and Congress’s refusal to open up the airwaves to more broadcast stations of all types, low power or high power.

The system of broadcast allocation and regulation is fundamentally flawed, unprincipled, inconsistent, and even corrupt. I’d argue there is no principled way to work within such a system to repair it or make it more just.

So, if indecency is the stick with which we can beat Clear Channel, so be it.

Finally, while I am no fan of indecency policing, I do have to point out that so-called “indecency” is permitted on the US airwaves during the free-harbor period of 10 PM to 6 AM. The free-harbor period has been upheld repeatedly by the DC Circuit Court of Appeals in the face of FCC and Congressional attempts to either kill it off entirely or reduce it so substantially as to make it useless. The currently prevailing case law results from Action for Children’s Television v. FCC, 1995.

Thus, the FCC cannot legally fine any broadcaster, TV or radio, for airing Janet Jackson’s breast, Bubba the Love Sponge’s dick jokes, or uncensored rap songs after 10 PM. That’s why NBC hasn’t been fined for Saturday Night Live, no matter how much they push the limits and how many viewer complaints get filed.

It’s a compromise, for sure, but as a broadcaster myself, it’s one I’m willing to accept, since I feel lucky to even have access to a broadcast station.

I shouldn’t have to feel lucky, but that’s the fundamental problem. Indecency enforcement is just a symptom.