A funny thing happened on the way to the FCC's review of its media-ownership rules: The proceeding morphed into a debate over so-called trash TV and the "family-viewing hour."
Not that there is anything particularly unusual about the bureaucratic impulse to make pronouncements about programming. Scratch just about every other FCC commissioner and you'll find a TV critic dying to get out. One of the traditional perks of federal service is the ability to castigate the state of television in general and to lambaste particular shows when the mood arises, even though the government's power to regulate television programming directly is rather limited.
Commissioners like to refer to their position as the "bully pulpit," although not in the spirit in which Teddy Roosevelt meant it when he coined the expression. T.R. described the presidency as a "bully pulpit" in that it was a "splendid" platform from which to persuade the populace. But, when FCC commissioners speak of the "bully pulpit," they intend the more modern and literal meanings of both words: that they view their office as a license to threaten broadcast networks with further regulation and to moralize about programming.
While this tendency is nothing new, it is interesting that the FCC's study of media ownership has become a potential vehicle for reforming programming content. Some commissioners are urging the industry to devote the first hour of prime time to "programs that parents and children can enjoy together." They also have challenged cable operators and satellite services to create a "family-friendly" programming tier.
The claim is that media concentration has spawned a "race to the bottom" and that TV viewers need the government's assistance to find acceptable programming. In this regard, the problem is not media concentration; it is too much
choice and how to channel it in the right direction. While no one is yet proposing rules to require such channeling, demands that media companies consider such measures "voluntarily" during a high-stakes rulemaking proceeding leave little to the imagination.
In the mid 1970s, broadcasters adopted a "family-viewing policy" as a result of "suggestions" from Congress and the FCC. The FCC's proposal was adopted by the networks and enforced through the National Association of Broadcasters' Code, but a U.S. District Court invalidated the policy as a violation of the First Amendment.
The Court of Appeals reversed the lower court's decision on the theory that the challenge to the family-viewing policy should have been presented first to the FCC, not to the court. But it agreed that the use of informal techniques by the FCC to control television programming "presents serious issues" involving due process, the First Amendment and the Communications Act.
If the FCC's current review of ownership rules is exploited as an opportunity to extract programming concessions, the agency may get an answer to the question the courts left open. And this time, the courts are likely to be far less lenient.