Tuesday, April 13, 2004

Radio, Television and Censorship

Howard Stern and the massive fines being levelled against Clear Channel by the Federal Communications Commission have brought radio and television censorship into the national debate again. Unfortunately, most folks don't know what they're talking about.

The Communications Act of 1934 gave the Federal government the right to manage the airwaves. It was derived from the Communications Act of 1927, which defined the airwaves as a community good under the control of the government, which was explicitly given the right to run it in the common interest.
The content of any programming could not have "obscene, indecent, or profane language." Otherwise anything could be programmed, though the Federal Radio Commission could take into consideration programming when renewing licenses. A forerunner of the "equal time rule" was stated in section (18) of the Radio Act of 1927 which ordered stations to give equal opportunities for political candidates. The act did vest in the Federal Radio Commission the power to revoke licences and give fines for violations of the act.
Licenses came from the Radio Act of 1912, which wasn't an effort to control content but merely a war-time measure to keep the airwaves clear and know who was broadcasting. It was seen as a reasonable measure for an exploding technology in a time of war. Does that sound familiar?

The government soon found that it merely could issue and sometime deny licenses, but its hands were tied. The government asked for reasonable extensions of the Act to give it some regulatory muscle. Again, sound familiar?

That led to the CA of 1927, which suddenly codified and regulated a whole lot. But it too proved not enough, and with the explosion of radio networks and the introduction of television, the broadcasting companies and radio manufacturers asked for the government to step in to help control the chaotic situation. So, the modified CA of 1934.

And that's how things have stood ever since, up through modifications to the CA34 in 1987 and then in 1998. Radio and broadcast television have statute laws that say explicitly what cannot be done: "obscene, indecent, or profane language." That law has stood innumerable Supreme Court tests; in fact, much of the CA34 was shaped by Supreme Court challenges to the CA27.

The fundamental thinking then was that turning on a radio or television, which is in the house (and later car), invites anything being carried on the airwaves into the house. Radios and televisions might be found anywhere or brought into public view anywhere. With cable, you had to buy the cable, have it installed, and then buy the channel package. The thinking was that this was different, although it's a slender difference indeed. That difference has also withstood Supreme Court challenge. I haven't heard yet if subscription radio (Sirius or SM Satellite Radio) would be under the same standard as cable television and dish.

So, modern viewers who look at television, broadcast and cable, as the same thing are uninformed. Legally speaking, they are not and haven't ever been. The FCC does have a clear and solid right to control content in "the public interest." Folks who don't like that can try to have the law changed.

Unfortunately for them, that's terribly unlikely. Most of the legislation and regulatory work of the FCC is by and for the media companies, telephony industry and the electronics companies. They all have vested interests and financial security based on the status quo, and the ability to influence Congress to regulate in their favor.

Short answer? You're screwed. Things are what they are and aren't likely to change. Gradualism got us here. What began as a reasonable effort to make sure that early radio hobbyists and inventors didn't walk all over each other, and to make sure emergency stations were always manned to prevent tragedies like the Titanic ushered in government oversight. Light touch grew heavier, as the government found that it couldn't conduct oversight without some teeth to bite with. Then came an exploding new technology and business, with all the market chaos you'd expect. Everyone wants someone to do something, so they turn to government and give it absolute control. Then begins the long tug-of-war to control the controllers.

What shouldn't have been government-regulated becomes a government property. It was the same with automobiles. Why do you need a license to operate a car? Who "owns" the roads? Why is that? We're seeing it happen with the Internet. Think I'm kidding? Look closely.

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