Virtually everyone in the broadcasting business recognizes the FCC's crackdown on fleeting profanity and indecency for what it is—a knee-jerk reaction to pressure from their bosses in Congress.
Bono swears, Janet strips, Congress fulminates and the commission reverses over two decades of consistently light-handed indecency regulation. The industry is also pretty much in agreement that in its haste to please Capitol Hill, the commission switched gears without providing sufficient notice or justification to the industry. That is against the law. But that is where the agreement ends.
For instance, ABC, CBS, and NBC are taking dead aim at the legal underpinnings not only of indecency rules but of content regulation of the broadcast media in general. Fox, meanwhile, has concentrated on the idiocy of indecency regs, while the lobby for some well-known independent TV producers does not challenge the FCC's authority to regulate content. In its filing on NYPD Blue, the lobby took pains to avoid challenging either the Supreme Court's Pacifica or Red Lion decisions, which together have provided the foundation of FCC content regulation.
Every side has its own, sometimes hard to discern, parochial interests.
The ACLU, DGA and AFTRA all called last week for an end to indecency enforcement, though they stopped short of going after Red Lion since they are concerned about media consolidation and don't want to weaken structural regulations. Ditto some TV producers, represented by the Coalition for Creative Voices in Media. They are concerned about the domination of prime time by the handful of studios with ties to the TV networks. So they have echoed some of the FCC's concerns about content, tying it to that concentration of control.
But they do not take issue with the FCC's indecency powers, just with the content-chilling way the commission is exercising them, suggesting that one way to address inappropriate content is to create more competition.
TV stations also want more guidance on what is indecent but steer clear of constitutional calls, fearing that if the courts weaken the FCC's regulatory authority, the stations' must-carry rights might be at risk. Likewise, a weakened FCC could lead to changes in the ownership cap, letting the networks swallow them up.
The networks are TV station owners, too. But they see themselves increasingly as content providers, where the freedom to compete with edgier fare could be key to their competitiveness.
And while media activist groups aren't fans of the indecency crackdown, they also stop short of asking for a constitutional housecleaning for fear of a diminished FCC when it comes to regulating kids' TV or ownership limits.
We understand the politics and business behind these various arguments. But we can't get past the basic tenet that the content of the still-most-powerful news and information medium deserves full First Amendment rights, and that the people deserve it even more.
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