March 10, 2005

March 10, 2005 | Commentary on Regulation

Indecent Proposal: Expanding FCC Speech Controls to Cable

Ten years ago, when the GOP first took control of Congress, there was much excited talk about abolishing the FCC. Its days were numbered, many thought. Ten years later, those numbers look pretty large.

Rather than talk of shrinking the FCC, two key GOP leaders last week were talking about expanding it. Sen. Ted Stevens, R-Alaska, chairman of the Senate Commerce Committee, told reporters he wanted to extend the agency's control over "indecent" speech to cable and satellite television. Rep. Joe Barton, R-Texas, his House counterpart, said he also might support the idea.

Lawmakers are responding to a genuine concern, shared by many Americans, that television and radio programming is becoming more offensive. However, the proposed solution, increased government restrictions on speech, is fundamentally misguided. The idea of government bureaucrats deciding what can and cannot be heard is repugnant to American values.

Conservatives -- who have long been the targets of politically correct speech codes on college campuses and elsewhere -- should be particularly wary of such restrictions.

It is also naive to think that regulators can draw a neat line between what is appropriate and what is not -- as most recently shown by the reluctance of many PBS stations last month to air unexpurgated versions of a "Frontline" documentary on American troops in Iraq.

The FCC's powers have so far been limited to broadcasters, who operate under FCC license. Stevens and Barton now want to eliminate that distinction, seeing it as a loophole for cable and satellite programming. Never mind that this programming largely comes over privately built facilities and does not enter anyone's home unless requested (and paid for).

Worse, speech regulation is unlikely to stop with cable and satellite programming. What about video transmitted over the Internet? Isn't that a "loophole" that the FCC needs to plug? Or Internet radio? Why not other pervasive media that might cause offense? If we're plugging loopholes, what about the big one that lets newspapers and magazines print virtually anything they want? Shouldn't a regulator be looking at them to make sure no one gets offended?

Even FCC chairman Michael Powell, who initiated the FCC's drive against broadcast indecency, sees a problem here. "I think it's a dangerous thing to start talking about extending government oversight of content to other media just to level the playing field," he said earlier this year. Sadly, however, he's leaving, and other regulators are not so averse to expanding their domain. For instance, current Commissioner Kevin Martin, widely touted as Powell's replacement, has said that extending profanity restrictions is a "viable alternative" that should be considered.

Fortunately, even if the proposed expansion of controls passes Congress, it would have a hard time getting past the Supreme Court. It wouldn't take an activist judge to see a clear conflict with the First Amendment here.

Rather than impose ever-stricter limits on media content, lawmakers concerned about the quality of programming should instead promote policies that would expand the choices available to consumers. Already, cable programmers such as the Family Channel and Disney Channel offer family-oriented television. Satellite radio operator Sirius recently announced it would offer several channels of children's radio on its network.

By reducing governmental barriers to new outlets, policymakers could further increase the number of choices available. Such steps could include freeing up underused radio spectrum, reducing regulations that discourage investment in new telecommunications systems, and reducing taxes on providers.

Ultimately, the solution to offensive programming lies not with policymakers but with individual consumers and families. Parents and others unhappy with what they see on television have weapons more powerful than any congressman has. Like other businesses, broadcasters respond to their customers. Complaints to broadcasters and to the advertisers who support them can be effective.

But the most powerful weapons consumers wield are their own remote controls. The best regulation comes not from government but from individuals making choices for themselves. Rather than look to Washington for answers, we should look to our own thumbs.

James Gattuso is a research fellow in regulatory policy at TheĀ  Heritage Foundation, a Washington-based public policy research institute.

About the Author

James L. Gattuso Senior Research Fellow in Regulatory Policy
Thomas A. Roe Institute for Economic Policy Studies

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