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Government Overregulation of Broadcast Content Could Backfire
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By Terry Mitchell
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Rush is right! The government's stepped up bid to regulatebroadcast television content is indeed frightening. Limbaughmade his comments during one of his regular radio broadcastslast year. Those remarks were in response to the FCC's crackdownon broadcast indecency and Congress' threats to hand out muchlarger fines to broadcasters for such violations, in the wake ofJanet Jackson's "wardrobe malfunction" at the Super Bowlhalftime show last February. Limbaugh is the not only mediapersonality alarmed by this intensified government scrutiny oftelevision content. At the beginning of his news program on CNNduring that same time frame, Aaron Brown said he thought theonly thing worse than Jackson's Super Bowl debacle is the factthat the government is now getting involved in trying to preventsimilar incidents in the future. Amen, Aaron! Television, likeany other business in a capitalistic society like ours, is andshould be governed by the marketplace and the laws of supply anddemand. I would love to see more family-friendly televisionprogramming. However, if there were truly a great demand for it,there would naturally be a lot more of it in existence (as wellas a lot less of the offensive stuff). The folks who are pushingthe hardest for greater government intervention to make TV morefamily-friendly will assert that they are in the majority ofviewers and listeners in the U.S. However, the facts belie thisassertion. Of the seven broadcast networks, PAX, widelyrecognized as the most family-friendly, is last in the ratings.It's not just last, it is dead last! PAX gets about one-fourthof the audience of the sixth place network! Even in places thatdon't have a local PAX affiliate, it is usually available as acable channel. However, it's not even among the 30 top-ratedcable channels. On the other hand, some of the TV shows andcable networks with the most controversial material get thehighest ratings. Go figure. In reality, those who are clamoringthe loudest for TV to "clean up its act" know they are in theminority. Instead of tuning their TVs to PAX or one of the othertamer channels (as I do) or even turning their TVs completelyoff, they go running to the government to force their tastes oneveryone else. Oddly enough, most of these people considerthemselves conservatives. Funny, I thought conservativesdisdained government intervention in favor of allowing themarketplace to take its course. Where did I ever get such asilly idea? What these people seemingly don't realize is thattheir efforts could very well backfire on them and all the restof us. Broadcasters have generally submitted to the concepts ofthe V-chip and content ratings to help parents regulate theirchildren¡¯s TV viewing in their homes. After all, isn't that whatall of this hoopla is about? They have also meekly acceptedreasonable fines from time to time for indecent broadcasts.However, the vocal minority is now demanding that the FCC andCongress play hardball, i.e., impose very large and numerousfines as well as revoking the licenses of stations found guiltyof indecent broadcasts. In response to this demand, there arenow bills circulating in both houses of Congress that wouldincrease fines to the range of $250,000 to $3 million perviolation along with threatening license revocation for habitualoffenders. Many people forget that the FCC and Congress are notthe final arbiters of these matters. The courts are. In thepast, the courts have vigorously defended the First Amendmentand I believe they will continue this trend. By playinghardball, the FCC and Congress will leave broadcasters with noother option but to take them to court. Even though the courtshave, in the past, upheld the FCC's reasonable jurisdiction overbroadcast TV, things could change if the government's newlyattempted heavy-handed penalties are challenged. Long ago, thecourts stripped away the government's "right" to regulateindecency on cable and satellite channels. If the governmentdecides it really wants to play hardball with broadcasters, itcould ultimately lose any jurisdiction over broadcast content aswell. But let's suppose the government's more restrictiveregulations are upheld by the courts. That's definitely apossibility. However, because of the greatly increase fines andthe possibility of license revocation, the courts will likelyforce the FCC to be more specific and draw up more detailedindecency guidelines. They are currently vague, to say theleast. I¡¯ll use the following illustration to demonstrate howvague the FCC¡¯s current guidelines really are. Let¡¯s supposethat none of the roads or highways we all drive on everyday hadposted speed limits. Instead, let¡¯s suppose they just had signswarning us not to drive too fast. Then let¡¯s suppose that thepolice were allowed to subjectively write tickets whenever theythought someone was driving too fast, but would never actuallydefine what they thought ¡°too fast¡± really was. That¡¯s similarto how the FCC operates. It doesn¡¯t provide any specificguidelines and only investigates a claim of indecency whensomeone files a complaint. It never explicitly states what abroadcaster can and cannot do. Now, going back to our speedinganalogy, let¡¯s suppose that we (along with the courts) toleratedthis kind of speed enforcement because the fines were relativelysmall and no one¡¯s license was ever revoked. However, what doyou think would happen if the governing authority decided togreatly increase the fines for speeding and allow thepossibility of license revocations for such violations, withoutgiving us specific speed limits? We would not stand still forsuch a thing and neither would the courts. Posted speed limitswould be mandated. With the FCC forced to write more specificrules governing indecency, it could find itself in a veryprecarious position. If, for example, the FCC strictly forbidsspecific words from being used and/or specific body parts frombeing shown on broadcast TV, it will invite another court battlethat it will probably lose. However, if it explicitly listssituations in which certain words can be used and/or certainbody parts can be shown, broadcasters will begin to findloopholes in these rules and exploit them. We all know that themore specific a law or rule is, the easier it is to findloopholes in it. The bottom line is that more aggressiveenforcement of indecency regulations on broadcast TV and radiocould backfire and actually lead to even racier content. Membersof Congress would be advised to look before they leap.
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