Editorial: Step Back, Please

In advance of the 10th anniversary of the infamous Justin and Janet Super Bowl halftime show debacle, former FCC chairman Michael Powell asserts that at the time, he was a reluctant regulator of content.

“I think we’ve been removed from this long enough for me to tell you that I had to put my best version of outrage on that I could put on,” Powell, now president of the National Cable & Telecommunications Association, says in a piece for ESPN The Magazine entitled: “In the Beginning, There Was a Nipple.”

“Part of it was surreal, right? Look, I think it was dumb to happen, and they knew the rules and were flirting with them, and my job is to enforce the rules, but, you know, really? This is what we’re gonna do?” says Powell.

Powell had always seemed like an unlikely national nanny, given his professed passion for the First Amendment, expressed in a ringing and memorable speech at the Media Institute that this page celebrated at the time. But, like the former soldier he is, Powell saw his duty, which was to enforce the rules on the books, as clear. It’s like the old argument that the police don’t make the laws, they just enforce them.

The FCC had previously taken a fairly handsoff approach to indecency under Republican and Democratic chairs alike. Unfortunately, after the halftime strip show, there was enormous pressure from Congress to take action.

Both Powell and network executives were paraded in front of congressional committees, where they all had to put on their best versions of outrage to match that of the House and Senate members grilling them over what they knew about the halftime show and when they knew it.

It was a sad chapter in the book of content regulation, which reached it’s zenith—under a different chairman—when the FCC spent time and energy explaining how the combination of a pacifier and a baby’s behind met a portion of the FCC test for indecency.

It has gotten to the point where if a recent high school production of Annie Get Your Gun, attended by plenty of families, had been broadcast, it could have technically been in violation of indecency rules for language—in perhaps a figurative interpretation of “Anything You Can Do I Can Do Better.”

Now, back to Nipplegate history. After lengthy challenges, the Supreme Court essentially punted the decision on how to proceed on indecency enforcement back to the FCC.

To his credit, then-FCC chairman Julius Genachowski decided there were a lot more important things for the commission to be concentrating on than how much of one body part was showing or whether this or that word was likely to corrupt the moral fabric of the nation. So, he adopted a new policy of pursuing only egregious cases. That still leaves the FCC to determine what is or isn’t “egregious,” which gets back to the problem of having a panel of bureaucrats decide what is acceptable speech. That way lies indecency findings against swearing by bluesmen in documentaries about jazz.

But at least the move suggested the commission was ratcheting back the “pacifier” standard. The commission still has an open proceeding on whether that “egregious” standard should be the new normal.

The FCC shouldn’t be in the content regulation business at all. But given that there is a law on the books, it should exercise as light a hand as possible.

So, as we “celebrate” the 10th anniversary of what we called then a “tempest in a D-cup,” our advice to the new FCC chairman is to concentrate on creating incentive auctions that fairly compensate broadcasters and leave them with a business model at the end of the day. That includes programming to the tastes of their audience, not the dictates of the government.