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Government Overregulation of Broadcast Content Could Backfire

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Rush is right! The government's stepped up bid to regulate broadcast television content is indeed frightening. Limbaugh made his comments during one of his regular radio broadcasts last year. Those remarks were in response to the FCC's crackdown on broadcast indecency and Congress' threats to hand out much larger fines to broadcasters for such violations, in the wake of Janet Jackson's "wardrobe malfunction" at the Super Bowl halftime show last February.

Limbaugh is the not only media personality alarmed by this intensified government scrutiny of television content. At the beginning of his news program on CNN during that same time frame, Aaron Brown said he thought the only thing worse than Jackson's Super Bowl debacle is the fact that the government is now getting involved in trying to prevent similar incidents in the future. Amen, Aaron!

Television, like any other business in a capitalistic society like ours, is and should be governed by the marketplace and the laws of supply and demand. I would love to see more family-friendly television programming. However, if there were truly a great demand for it, there would naturally be a lot more of it in existence (as well as a lot less of the offensive stuff). The folks who are pushing the hardest for greater government intervention to make TV more family-friendly will assert that they are in the majority of viewers and listeners in the U.S. However, the facts belie this assertion.

Of the seven broadcast networks, PAX, widely recognized as the most family-friendly, is last in the ratings. It's not just last, it is dead last! PAX gets about one-fourth of the audience of the sixth place network! Even in places that don't have a local PAX affiliate, it is usually available as a cable channel. However, it's not even among the 30 top-rated cable channels. On the other hand, some of the TV shows and cable networks with the most controversial material get the highest ratings. Go figure.

In reality, those who are clamoring the loudest for TV to "clean up its act" know they are in the minority. Instead of tuning their TVs to PAX or one of the other tamer channels (as I do) or even turning their TVs completely off, they go running to the government to force their tastes on everyone else. Oddly enough, most of these people consider themselves conservatives. Funny, I thought conservatives disdained government intervention in favor of allowing the marketplace to take its course. Where did I ever get such a silly idea?

What these people seemingly don't realize is that their efforts could very well backfire on them and all the rest of us. Broadcasters have generally submitted to the concepts of the V-chip and content ratings to help parents regulate their children’s TV viewing in their homes. After all, isn't that what all of this hoopla is about? They have also meekly accepted reasonable fines from time to time for indecent broadcasts. However, the vocal minority is now demanding that the FCC and Congress play hardball, i.e., impose very large and numerous fines as well as revoking the licenses of stations found guilty of indecent broadcasts. In response to this demand, there are now bills circulating in both houses of Congress that would increase fines to the range of $250,000 to $3 million per violation along with threatening license revocation for habitual offenders.

Many people forget that the FCC and Congress are not the final arbiters of these matters. The courts are. In the past, the courts have vigorously defended the First Amendment and I believe they will continue this trend. By playing hardball, the FCC and Congress will leave broadcasters with no other option but to take them to court. Even though the courts have, in the past, upheld the FCC's reasonable jurisdiction over broadcast TV, things could change if the government's newly attempted heavy-handed penalties are challenged. Long ago, the courts stripped away the government's "right" to regulate indecency on cable and satellite channels. If the government decides it really wants to play hardball with broadcasters, it could ultimately lose any jurisdiction over broadcast content as well.

But let's suppose the government's more restrictive regulations are upheld by the courts. That's definitely a possibility. However, because of the greatly increase fines and the possibility of license revocation, the courts will likely force the FCC to be more specific and draw up more detailed indecency guidelines. They are currently vague, to say the least.

I’ll use the following illustration to demonstrate how vague the FCC’s current guidelines really are. Let’s suppose that none of the roads or highways we all drive on everyday had posted speed limits. Instead, let’s suppose they just had signs warning us not to drive too fast. Then let’s suppose that the police were allowed to subjectively write tickets whenever they thought someone was driving too fast, but would never actually define what they thought “too fast” really was. That’s similar to how the FCC operates. It doesn’t provide any specific guidelines and only investigates a claim of indecency when someone files a complaint. It never explicitly states what a broadcaster can and cannot do.

Now, going back to our speeding analogy, let’s suppose that we (along with the courts) tolerated this kind of speed enforcement because the fines were relatively small and no one’s license was ever revoked. However, what do you think would happen if the governing authority decided to greatly increase the fines for speeding and allow the possibility of license revocations for such violations, without giving us specific speed limits? We would not stand still for such a thing and neither would the courts. Posted speed limits would be mandated.

With the FCC forced to write more specific rules governing indecency, it could find itself in a very precarious position. If, for example, the FCC strictly forbids specific words from being used and/or specific body parts from being shown on broadcast TV, it will invite another court battle that it will probably lose. However, if it explicitly lists situations in which certain words can be used and/or certain body parts can be shown, broadcasters will begin to find loopholes in these rules and exploit them. We all know that the more specific a law or rule is, the easier it is to find loopholes in it.

The bottom line is that more aggressive enforcement of indecency regulations on broadcast TV and radio could backfire and actually lead to even racier content. Members of Congress would be advised to look before they leap.

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