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Monday, August 22, 2011

The FCC Finally Does Something Right

Good for the FCC for formally eliminating the Fairness Doctrine, which it wisely hadn't been enforcing anyway for twenty years.  The last thing we need is the government having any say whatsoever in the political content of radio and television broadcasts.

As a case in point, consider the advent and growth of cable TV news.   Without any FCC supervision, we have conservative Fox, progressive MSNBC, and down the middle (if usually boring) CNN.  In other words, the marketplaces of ideas and money brought about a very well balanced system of news delivery and commentary.

The next thing the FCC should do it is eliminate itself - or, at very least, the fines it has been levying against broadcasters it deems to be putting out "objectionable" content.   Like the Fairness Doctrine and just about everything the FCC does other than keeping track of broadcast frequencies - increasingly unnecessary in our age of Internet streaming - the FCC is in principle and practice a blatant violation of the First Amendment.


Marlin May said...

I heartily disagree.

Management of the nation's RF allocation and usage is, if anything, even more important now than it ever has been in the nation's history.

You mention internet streaming as a reason for abandoning management of broadcast frequencies. If you meant internet streaming via wireless services, I hope you can see that the continuing increase in the number of wireless services, with increasingly narrow bandwidth allocations including ever more narrow guard bands, increases the possibility of cross service interference. Preventing interference is one of the Commission's primary duties, as mandated by Congress. As the FCC is a creature of Congress, it cannot abandon this duty without Congress explicitly altering it's charter.

If you meant internet streaming via hard-line service, well, the proliferation of wireless services causes concern here also. As the number of services in the RF environment grows, the probability of unwanted RF ingress into even well shielded hard-lines increases, not just along the length of the conductor, but at junctions and signal conversion points. As so we come up once again with the FCC's primary mission, the prevention of interference, which it is bound by law to pursue.

Were Congress to abolish the FCC and leave the nation's terrestrial and space-borne communications landscape unregulated, I wonder how much time would pass until an environment would arise very similar to that which existed before Congress created the FCC's predecessor, the FRC. Before the Radio Commission was created, RF interference was so bad that wireless communications was nearly impossible.

As far as the Commission's actions regarding obscenity, at least two things must be kept in mind. First, as stated above, the FCC is a creature of Congress and it does what Congress mandates it must do, unless the Supreme Court strikes down the statutes it is following. Secondly, the FCC's ability to regulate content is highly dependent upon the medium of transmission. It has much, much more power to regulate un-encrypted open air transmissions than it does encrypted open air transmissions or transmissions through hard-lines. Why? Because hard-lines are private property, encrypted open air transmissions require permission from the originator to decrypt, but the open air medium broadcasters use to disseminate their signals for anyone to intercept see/hear is by statute public property and it is by statute that the FCC manages this resource as a public trust, kind of like a public thoroughfare or national park. The effect? When you view hard-line or satellite delivered content you can see explicit sexual behavior, hear expletives, see explicit gore. The same content broadcast would quickly attract hefty fines and the revocation of your broadcast license.

Yes, this was long winded, but H hope it was thorough and clear.

Marlin May
MA, Telecommunications Policy, Penn State
SF Fan

Paul Levinson said...

Thanks for your comment, Marlin, which was crystal clear and always welcome.

But I completely disagree about both points of your argument.

1. The advent of sound and video programs on the Internet means that broadcast frequencies are in effect no longer scarce, and of diminishing relevance. Hence we really no longer need a Federal agency to regulate them (if we ever did).

2. I'm saying the FCC, Congress, or any governmental agency or component which tells me and you what we can or cannot watch is in direct violation of the First Amendment. As a Victorian lawyer commented at that time, controlling what children can read (or, in today's world, also hear and view) is never a good reason to treat adults like children. If a network chooses to broadcast porn, and an adult chooses to watch, who is the government to stop that from happening? Indeed, the First Amendment prohibits just that.