FCC Should Get With The Times

After all the debate about broadcast indecency in the past few years, most of us have probably heard as much as we ever wanted to about fleeting expletives, exposed nipples and the vagaries of the Federal Communications Commission.

Unfortunately, the long-overdue conversation we started four years ago about the legitimacy of government control of media was so quickly derailed by the clownish grandstanding in Washington that we're essentially right where we were before halftime of Super Bowl XXXVIII.

Our political leaders have shown no interest in any kind of intelligent reflection about our changing media environment or the viability of the FCC's 74-year-old regulatory framework.

Instead, they have pandered to us by increasing 10-fold the maximum fines for indecency violations and by declaring the F-word to be a kind of uber-profanity whose use is always punishable, even in the context of a serious film ("Schindler's List") or documentary ("9/11"). Thank goodness for the courts. After decades of lazy deference, they are finally standing up to all this pious oversight.

Last June, for example, a federal appellate court overturned the punishments of several FOX TV affiliates for their live broadcasts of the Billboard Music Awards in which Cher (in 2002) and Nicole Richie (in 2003) each dropped the F-bomb.

The court held that by punishing every blooper-reel mishap and declaring the F-word indecent in all contexts, the FCC had strayed from past practice and stretched the limits of its authority.

That case is now on appeal to the U.S. Supreme Court, which will hear oral arguments this fall. It will be the first time in three decades that the court has addressed broadcast indecency, and it could become a catalytic moment in the dismantling of government control of media. Or not.

In any case, Congress and the FCC are forging ahead. In January, the FCC fined 52 ABC-owned stations $27,500 each for airing an episode of "NYPD Blue" containing a flash of a woman's backside, and Congress is considering legislation to explicitly ban fleeting profanity and to authorize FCC regulation of television violence.

Hopefully, the Supreme Court will recognize that while the government is ratcheting up its supervision of media content, the dynamics of the media marketplace are obliterating the rationales that have traditionally supported it.

Congress and the FCC continue to defend their interventions by relying on the Supreme Court's prehistoric First Amendment framework that assigns different constitutional ranks to each medium.

Print and Internet communicators get full First Amendment protection, cable system operators get slightly less, and broadcasters get the least protection and are legally obligated to serve the "public interest, convenience and necessity." Whatever sense this scheme made in the analog days of yore, it is senseless in a world of digitally converged media.

This is especially true in the indecency context where the government still relies the Supreme Court's 1978 ruling in Pacifica Radio v. FCC, which upheld the punishment of a radio station for airing comedian George Carlin's "Seven Dirty Words" monologue. The court held that because broadcast signals are pervasive and can be accessed by kids outside of their parents' purview, broadcasters' rights must yield to the public's interest in child-friendly airwaves.

That was dubious 30 years ago and is utterly anachronistic today. With the proliferation of Internet-enabled cell phones and other devices and with the explosion of wireless networks, it is not an exaggeration to say that all mass media are pervasive.

It is time for the Supreme Court to finally kill off its 20th century First Amendment model and to recognize that we are moving inexorably to a world of fully integrated communication.

Whenever the court does this - and it will - we will have two choices. One will be to begin regulating indecent and violent content in all media, including the Internet. That would be a logistical impossibility and would destroy the Internet's distinctiveness as a boundless and unfettered space. The other option will be to simply end the government's ham-handed regulation of content, and put the burden back on parents to decide when and how to shield their kids from provocative material.

By maintaining the current regulatory scheme, the government not only subverts the Constitution, it gives parents a false sense of security, and it encourages broadcasters to narrowly define their social obligations by how diligently they comply with the law. But most importantly, it diverts us from the much harder and more important obligation we have to prepare our kids to make sense of the torrent of media messages to which they will unavoidably be exposed.

If we spent as much time doing that as we do constructing these elaborate legal ramparts, we would all have a whole lot less to worry about.

Erik Ugland is a lawyer and an assistant professor at Marquette University, where he teaches courses in media law, ethics and policy.