The FCC commissioners are planning to get more involved in indecency enforcement. We think that is a good thing … well, sort of.
Yes, you read that right. Before our First Amendment friends start howling “Judas!” they should be assured we haven't budged on our opposition to content regulation of the media. But we also are opposed to a system that does not require commissioners to put their names on rulings involving content regulation.
We think each of the FCC commissioners should be directly responsible for every indecency fine that is proposed—or imposed—and not hide behind the bureaucracy. But that is not the way it works.
As it stands now, some indecency fines can remain at the Enforcement Bureau level throughout the process, with none of the commissioners required to weigh in on them at all. Even before the commission says anything officially, the threat of fines can frighten media companies into agreeing to cave in.
Content regulation is the most problematic area of FCC oversight. But if these decisions are going to effectively determine what viewers and listeners can and cannot see and hear, they should always have to come from the top, rather than under the “delegated authority” of a bureau. This is not like an FCC fine for poorly lit towers or incomplete public-record keeping.
The bureau staffers still should be used to study the case law and make recommendations. But when that notice that says, “We think this is indecent” is issued, the “we” should be the folks with the big titles.
The downside to moving all the indecency fines out of the bureau is that the staffers can sometimes be more open-minded and less prone to making new law with their decisions. The Bono decision is one example, where the bureau found the f-word to be not indecent, only to have that decision reversed by the full commission when the do-good police made an issue out of it.
The FCC commissioners should feel uncomfortable making content decisions. We hope they feel so uncomfortable they avoid any rulings. But once they decide what is indecent, it is up to broadcasters to either toe the line or immediately go to court, if any broadcaster out there still has enough vertebrae left to do that.
FCC Chairman Kevin Martin wants to clean up the system, too. He is expected to gather up the newest batch of indecency complaints, along with bureau recommendations about how to handle them, and give them to the commission to decide. That way, broadcasters finally will see how the commission views a wide swath of content issues. That should be the process going forward.
Martin is said to want to give broadcasters a clearer roadmap. We don't like the road, but if broadcasters have to go down it, they should at least have the names of the bureaucrats giving the directions.