The FCC is showing no signs of loosening its regulatory grip—despite early indications that the new sheriff in town will have his hands full with broadband, and prefers parents over government nannies on content control.
The commission has signaled it will likely try to craft a defensible cable subscribership cap after the D.C. federal appeals court threw out the 30% cap—again—as unjustified. And just last week, the FCC came to the defense of the Kevin Martin-backed extension of program access rules. It stated that the extension was necessary to keep the cable industry in check, irrespective of marketplace changes that have produced new competition from satellite, the Internet and telcos, as well as an explosion in channel offerings that has reduced the number of cable-owned networks as a percentage of the now 500-plus-channel universe to a fraction of the former total.
And to top it all off, the commission last week was harking back to the days of former chairmen Michael Powell and Kevin Martin in its too-spirited defense of the Janet Jackson fine contained in its brief to the Third Circuit Court of Appeals.
That wasn't a V-chip on the FCC's shoulder last week, just a chip. The commission was all but daring the court to give it another crack at the Jackson decision so the FCC could prove that CBS was a willful and reckless purveyor of breast almost-baring. The commission's desire to investigate, and the ludicrousness of the expense of time and energy in such an exercise, evoked the image of Captain Queeg trying to track down the strawberry thief. We realize that the FCC has a mandate to enforce indecency laws, but it also has the discretion not to misuse that power to chill speech, even if a million online petitioners tell it to do the wrong thing.
We were glad to find that Fox, in challenging the FCC's profanity finding against the network—it was rush hour on indecency-brief lane last week—took aim at the constitutional underpinnings of broadcast regulation. Fox argued, and we agree, that the “uniquely pervasive” argument for regulating content is uniquely unpersuasive given the explosion of other media. We also agree with some of the other networks that the spectrum-scarcity argument is equally threadbare.
We were less pleased at the Center for Creative Voices' invocation of a chaotic Wi-Fi spectrum grab as an argument for leaving the Supreme Court's Red Lion decision unassailed. We hope that specter does not frighten broadcasters already worried about holding onto spectrum at a time when advanced wireless services, particularly broadband, are getting so much attention at the FCC. Meanwhile, companies hungrily eyeing bandwidth make vague references to inefficient spectrum uses that might be standing in the way of progress.
One of the things the flurry of activity on the indecency front suggests is that the National Association of Broadcasters' new president, Gordon Smith, needs to press the case for the value of free, over-the-air broadcasting, and face down the threat to that system from continued government content control.