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Committed to the First Amendment 1/26/2003 07:00:00 PM Eastern

FCC's Wink Is as Good as a Prod

FCC Commissioner Kevin Martin last week was sounding like one of those regulators-by-proxy that give this page the willies. At a family-friendly programming session at NATPE in New Orleans, he talked about reviving the 8-9 p.m. family hour on the networks and counseled the cable and satellite industries to restructure their business models so that networks he thinks are family-friendly could be bought on an à la carte basis.

The problem with the social-engineering theories proffered by FCC commissioners is that they are not merely helpful suggestions to be taken or not at the editorial discretion of the interested party. There is always
a big stick, brandished or implied, in their power as regulators. As former Commissioner Harold Furchtgott-Roth said of the V-Chip, "once the government becomes involved in pressuring parties to take part in any particular program, the program ceases to be 'voluntary' in any real sense of the word." Furchtgott-Roth elaborated on the potential for abuse in a later speech: "It is no coincidence that the commitments extracted from regulated entities in the guise of voluntary standards tend to be things that the agency lacks statutory authority straightforwardly to require. Voluntary standards, as opposed to duly promulgated rules, can all too easily be used to bootstrap jurisdictional issues: Got jurisdiction to approve or [deny] the transfer of licenses but no express statutory authority to require unbundling of the licensee's product offerings? Just make it an 'optional' condition of the license transfer, add water, mix, and you have fresh jurisdiction to regulate a whole new area."

If the broadcast networks think that appeasing Martin's taste in programming might grease the skids toward loosening ownership restrictions, we might suddenly see a raft of "voluntary" programming choices. Cable, not so nearly under the thumb of the content police, is not likely to start repackaging its services per the commissioner, although a satellite company interested in getting merger approvals might. And then there are broadcasters, who in the past have shown themselves willing to go along to get along—think the aforementioned V-Chip and children's-TV quotas.

A family hour is not necessarily a bad idea, particularly as one choice of many. But it would be onerous if created to placate regulators. What Martin (or Martin plus Copps plus Adelstein) thinks should be on at 8 should not determine what is on at 8.

Everybody into the Pool

We want to applaud the NAB for deciding to work within the FCC's newest EEO rules. It was a politically expedient move to be sure, given the wingtip-in-mouth disease of Eddie Fritts's fellow Mississippian, Trent Lott. It was also an easier decision for the large groups, on which additional reporting requirements are not as burdensome. The FCC's third crack at rules that pass judicial muster isn't perfect, but the rules aren't quotas, either. The debate over affirmative action continues, but there is no doubt that the nation benefits when it has a broader pool of talent to tap.

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