The Powell Retreat
Committed to the First Amendment
By Staff -- Broadcasting & Cable, 1/18/2004 7:00:00 PM
Whether he was being the good soldier or just the pragmatic future politician, FCC Chairman Michael Powell appears to have done an about-face and is now marching with the forces of content regulation.
Under fire from family-values groups and various members of Congress, Powell has decided that indecency fines should be raised dramatically, perhaps to as much as 10 times today's $27,500 maximum per #$@%*.
He also wants to reverse an enforcement bureau decision that use of the f-word as an adjective or interjection is not actionable. If Powell is successful, broadcasters will either need to cut all live programming or use some sort of uber-TiVo for live concerts, awards shows, NFL games and anywhere else that people talk without thinking.
Powell's tough indecency talk last week appears to put him at odds with what have been key tenets of his regulatory philosophy: championing the First Amendment and recognizing the changing media landscape and the necessary adjustment of regulation.
On the First Amendment issue, Powell has always talked the talk. Back in 1998, in a speech devoted to shooting down the arguments for content regulation of broadcasting, he said, "The TV set attached to rabbit ears is no more an intruder into the home than cable, DBS or newspapers for that matter. Most Americans are willing to bring TVs into their living rooms with no illusion as to what they will get when they turn them on."
Which brings us to the second tenet. Powell clearly recognizes that television is increasingly just that. Not broadcast, not cable, not satellite. With the media world moving in the direction of fewer distinctions between delivery systems to single out one medium for renewed government censure seems Luddite as well as chilling to speech.
In the "be careful what you wish for department," we have sometimes wished that Powell would take a more active role in indecency decisions since what is handed down from Washington becomes instant precedent and the only guide broadcasters have.
We urged that participation, though, in the expectation that he could use the opportunity to set a course for less content regulation, not more. Powell has sometimes seemed divided between his love of the First Amendment and his duty to carry out FCC rules. In that 1998 speech, though, he said that, when making decisions, he always asks, "Would any action we take violate the First Amendment?" Chilling speech through the vague and ad hoc body of indecency decisions is just such a violative action.
The Powell this page has championed, the Powell of that 1998 speech who took a broadsword to the scarcity and uniqueness arguments and poked holes in the intrusiveness rationale, is not the Michael Powell of last week, ready to tag along with Fred Upton in a crusade to "clean up" the airwaves.
It's a sad day.
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