Friday, April 23, 2004


Since Howard Stern decided to present himself as the Founding Fathers' heir apparent trustee and guardian of free speech, Jeff Jarvis has been firmly in his corner, waving the flag and decrying the injustice of it all. Now, I listen to Stern and enjoy his humor, and while I have questions concerning the FCC and their recent actions it is little more than self-promoting hyperbole to sound the death knell of the First Amendment based upon their disapproval of "Sphincterine" discussions. The concerns I have with the FCC in this regard, however, relate to the potential for apparent ex post facto like punishment, a general distaste for global solutions for local problems that has essentially lead to selective application of the rules and expanding the scope of the agency.

A quick look at the latest FCC Notice of Apparent Liability (NAL) against Clear Channel that was released April 8, 2004 shows that it is in response to complaints over a broadcast made on April 9 2003. In fact, a quick review of the other recent Clear Channel NALs show that the Mar 2004 finding referenced Mar 2003 broadcasts and the Jan 2004 referenced Dec 2001 (and earlier) broadcasts. A quick review of a few older NALs showed similar delays between incident and NAL release, including a May 2001 NAL that was released 19 months after the last cited incident. Now, I know that these findings and rulings can't be evaluated, decided, written and reviewed overnight, and I'll freely admit that I don't know if the target of a complaint is advised at the time of complaint (let me know if you do), but leveling fines on broadcasts over a year old seems to me unproductive, given the reason for such "punishment" should be to provide feedback to the broadcaster on what is and is not acceptable and to encourage them to "straighten up". Are broadcasters accountable for indecent material identical to that cited in an NAL if the material is broadcast during the yearlong process? Regardning the latest NAL, Chairman Powell said "For the first time, the Commission assesses a fine against more than a single utterance, rather than counting an entire program as one utterance." If Clear Channel had known, at the time of broadcast, that this sort of interpretation may have been applied might they have been more cautious? When the new liability limits are imposed, will they only apply to incidents that happened before they went into effect? This is like getting a speeding ticket, but when you go into court you find the fine has been raised to $10,000 or that your one speeding incident has, instead, been split into ten consecutive speeding incidents to cover the entire period the police had you on radar. It simply isn't right.

One key premise to the precept of allowing FCC limited control over broadcast content is that broadcast airwaves are a public asset and therefore subject to public control, as executed by the government within the limits of the Constitution and other applicable laws. With regards to the First Amendment, the Supreme Court has clearly ruled in the past that obscene language is not explicitly protected speech and has also upheld laws limiting indecent language during certain hours when the likelihood of such language being heard by children is heightened. Without attempting to provide an explicit definition of "obscene" or "indecent", the courts have always deferred to normal public sentiment and standards. However, who can convincingly argue that predominant public standards of decency in San Francisco are the same as in Des Moines? In fact, FCC rules seem to understand this, as all NALs initially begin as local complaints. They are, however, judged on merit at the federal level. After all, if a federal agency is saying Howard is indecent in Florida, why isn't he, from a federal perspective, indecent in Tennessee or New York? Similarly, two broadcasters in adjacent booths can do the exact same material and the federal agency will find one indecent and ignore the other because one is syndicated into more conservative markets and the other is not. This creates a serious impression of selective application of rules where the real issue is the level at which the rules should be applied. If the people, as represented by their elected officials, decide they don't want indecent broadcasts (and it seems, for the most part, they have) then why can't the people apply their community standards in judging what is and is not indecent?

Another thing that lends justification to governmental limitations on what is said over broadcast airwaves is that they, by their nature, are especially pervasive and accessible to the public, especially children. I can accept and to a great degree agree with this, but become greatly troubled when I read reports that indicate any attempt to control content of non-broadcast subscription services. While the actual remarks sound to me to be more along the lines of "we wish you'd do this" than "you'd better do this", there is specific reference to previous attempts by the Congress to empower the FCC with regulatory authority over cable TV content. If the cable guy came into my house and hooked up the line to my box and pumped in HBO free of charge as one of my rights of citizenship, they may have a point. But, regardless of how pervasive cable has become, one still must request and pay for that signal. This is especially true of the more explicit channels. Now, if the government really wanted to help parents safeguard their kids from the evil influences of cable they could mandate that cable providers offer ala carte channel selections. That way, if all you wanted was Nickelodeon, Disney, Discover, History and Animal Planet, that's all you would get and pay for. My general libertarian tendencies, though, cringe at this level of federal government intrusion into private business and I eventually see the matter becoming moot. As internet bandwidth into the home increases and streaming technologies improve I can easily see a day when changing channels is the same thing as navigating to a new URL. The ISP would then just provide the infrastructure and broadcast providers would decide on their own to offer individual subscription, join with other providers into packages or allow both.

Howard has a valid point and message when he stays on message. This morning he very clearly expressed his point just before he alienated all his non-sycophantic listeners by launching into another "poor pitiful me" rant. His point? "Tell me what I can't say and I won't say it, and let a court decide what is and isn't indecent." This, however, doesn't exactly match the vivre inspired by the "freedom of speech" mantra that is such a popular slogan. Likewise, his tin-foil hat rantings about how the Bush administration is trying to silence him for his (previously) occasional anti-Bush statements only serve to distract from the legitimate issues he has. If, as I suggested earlier, local standards of decency were applied in a timely manner then nationally syndicated shows like Stern's would be able to objectively evaluate if they want to change their content to meet the standards in their strictest markets, leave those markets or make special provisions (e.g. delay and local censor) to remain in those markets. Or, as has often seemed to be the decision in the past, accept the fines resulting from those more restrictive markets as a cost of doing business.
Something tells me, though, that Howard already knows this. Something tells me that regardless of how much he rants and raves about how "we have to get rid of this administration" he knows that electing Kerry will not change a thing, since the FCC operates under laws and regulations passed by Congress and the President has no say in who the chairman is. Something tells me that the repeated playing of Robin Quivers saying "you'd better listen now, because we won't be on much longer" is just standard Howard self-promotion. Oh, I don't doubt that he is truly upset that some of his "best bits" are falling, literally, on dead air, but something still tells me that a very big unstated part of his bluster comes right back to the very real knowledge that the current tide is going to make the cost of doing business higher. If only he concentrated on the real problems with the FCC and on realistic and solution oriented approaches to those issues without falling to demagoguery, then I, too, could rally behind him. But something also tells me not to hold my breath.

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