Tech Policy Groups Call on Supreme Court to Overturn Pacifica Decision

Public Knowledge, the Cato Institute and a collection of tech policy groups have called on the Supreme Court to overturn the Pacifica Decision and give broadcasters the same First Amendment freedom to program to their audiences as other media including print, cable and the Internet.

That came in a friend of the court brief supporting Fox and ABC. The Supremes are currently deciding whether or not to uphold FCC indecency decisions against Fox and ABC after the Second Circuit ruled those decisions, and the FCC's underlying indecency enforcement policy, unconstitutionally vague and chilling. The FCC and Justice appealed those rulings.

"Pacifica is based on an archaic and unrealistic conception of broadcast television," they argued. The groups go further than the National Association of Broadcasters in asking for the FCC to get out of the content reg business. Given the way the tech companies frame their support of broadcasting, it is not a surprise they are not exactly on the same page.

The groups, which include TechFreedom, the Center for Democracy & Technology and the Electronic Frontier Foundation, essentially argue that broadcasting should be free of content regs because technology has rendered it "rare" rather than pervasive, with only a small, and dwindling, percentage of people getting content over the air.

The groups go through a laundry list of alternative video delivery methods they say have "largely displaced" traditional broadcasting, including cable and phone and satellite and Internet streaming and podcasts and online DVD rentals. That, of course, is the argument tech companies, particularly computer and consumer electronics companies in general, have been using to argue for taking broadcast spectrum back from the industry to make more spectrum available to smartphones and tablets.

They contrast that to the mid-1970's, when the Pacifica decision was rendered, when there were few cable outlets and the choice was essentially between broadcasting and print.

"Whatever legal logic and common sense Pacifica might once have had was built on factual foundations that have long sense collapsed," they argue. "Traditional broadcasting has been largely replaced by other video delivery media that are invited into the home."

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.