FCC Could Lose Broadcast Censorship Authority

And why that

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The current FCC is using its numbered days to petition the Supreme Court to uphold its authority over fleeting material in broadcast programming. If Chairman Kevin Martin & Co. fail to get a sympathetic ear from the highest court, the fat lady could be singing one foul tune as failed regulators exit stage right, and that might be a good thing.

Reasoning similar to that which protects Internet companies could protect CBS and others from what guests and third parties say or do on live television—or television in general. Under the Communications Decency Act, Internet computer services providers—blogging platforms, social networks, or any service where third parties contribute content—are exempt from liability for content contributed by third parties.

In short, that generally means Facebook isn’t responsible for content appearing there.

This same kind of logic could apply to broadcast networks who’ve hired third-party contractors for live entertainment. In this case, the one involving the infamous Janet Jackson Super Bowl Nipplegate, where a split-second flash of unacceptable flesh was inadvertently broadcast to millions who likely missed it, CBS could remain off the punitive hook.

In addition to questioning how the FCC’s ruling wasn’t “arbitrary and capricious” government agency behavior, the Third Circuit Court (the last stop before the US Supreme) struck down the FCC’s ruling against CBS because though the FCC had a fleeting expletives policy in place (one many found grossly overreaching), there was no policy in place regarding fleeting images. Even more, a ruling from 2000 regarding the broadcast of the movie Schindler’s List stated that "nudity itself is not per se indecent." 

The lower court’s decision effectively limits the FCC’s authority over broadcast content. Already the FCC’s authority to regulate broadcast content was on shaky constitutional ground—after all, it is a government agency abridging speech on the grounds that the airwaves are public and broadcasts are free, one-way communications. Only since the late 70’s has the agency had this authority—thanks to George Carlin’s infamous seven words you can’t say on TV–granted to them by an earlier generation’s Supreme Court. Until then, television was self-regulated by advertisers and a more prudish society/audience.

Declaring something “indecent” has always been a difficult case to prove, but the FCC was granted significant license to decide that which violated cultural norms. This subjective guideline has since led to the regulatory agency discussing words like “hamsterbating,” and whether or not they find such content to have shocked and titillated them.

Being both shocked and titillated, you see, is required, and three out of five commissioners must agree. So, it is feasible that while two commissioners were most certainly shocked and titillated by something, the other three were split, one shocked but not titillated, two titillated but not shocked, and so on.

You can see where such fine lines can be troublesome.

At this point it seems quite obvious the need to define exactly and clearly mark what authority the FCC has. Comcast has challenged that without legislation, the agency can do nothing in the way of sanctions to prevent the company from throttling peer-to-peer traffic. And they may be right. Now, if the Supreme Court agrees with the Third Circuit Court, the FCC’s authority to regulate content is also in question.

This loss of authority—and credibility—can rest squarely on the shoulders of Chairman Kevin Martin, who has crusaded against trivialities such as fleeting expletives and images on live broadcasts, pushed for regulation of paid content—such as that on cable channels—while conveniently dancing around his agency’s authority to enforce principles against Internet providers, audibly announcing the net neutrality stipulations in AT&T’s merger with Bell South had no teeth whatsoever before using said lack of teeth on Comcast, apparently just for being a cable company.

This same chairman, who sought to expand the FCC’s authority over content from broadcast—a free one-way medium—to cable—paid, one-way medium, also recently proposed a content-filtered national wireless broadband network—a free, two-way medium—presumably governed by the FCC’s evolving, expanding and contracting idea of decency. The proposal was remarkably similar to a proposal from M2Z Martin pushed against until such a network could be politically advantageous, such as now, as he mulls an elected political career.

Just so that last part is clear: the content-filtered national wireless broadband network paves the way for the FCC to have authority over Internet content, an authority it has thus far not exhibited competence or constitutional or legal standing to exercise, exerting that authority when the agency can agree 3-2 at least on the extent to which they are shocked and titillated.

Is it just me, or is that a bad idea?

FCC Could Lose Broadcast Censorship Authority
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  • http://www.seowebmarketing.co.uk Susan

    Good day to you Web Pro News!  Interesting article!  I really do think clear guidelines, rules, regulations and legislation should be set up in regards to responsibility considering the impact social networking sites are having on internet users, and the speed in which the content is being sent around the world.  If the legislation is not set in stone, I am sure it will be more costly in the long run both financially and morally to the legal system, companies and the end internet users. 

    "Under the Communications Decency Act, Internet computer services providers—blogging platforms, social networks, or any service where third parties contribute content—are exempt from liability for content contributed by third parties." "In short, that generally means Facebook isn’t responsible for content appearing there." – I do find that statement quite shocking, surely they are responsible for the content that gets displayed via their "facebook templates." – More responsibility needs to be taken by the individual companies, especially Facebook that a system that will not be detrimental to internet users as a whole.  If they are not taking responsibility a higher body needs to before the situation gets out of hand, just an opinion! 

    Kind regards. Have a lovely day, Susan x –

    • Guest


      This has been proven throughout history, governments have tried again and again to legislate and force various moral codes upon their peoples, and usually all with the same result, DISASTER.

      As the internet is a global network, a vast spiderweb of connections, the FCc would find that it is physically impossible to actually censor the internet. In order to do this, the governement would have to sever ALL connections, and route EVERY communication through a central networ that monitors and filters ALL content, therefore, looking at the scope of the issue and the amount of sheer computing power that would be required to filter such a sheer amount of content, one can see that any kind of censorship of the internet would be futile at best, and at worst would cause disasterious communications bottlenecks, slowdowns, and in all likelyhood, a vast number of system failures that would cause the US system to fail.

  • http://www.radiolaunchpad.com Dave DeLuca

    America is supposed to be the land of Freedom of the Press, yet a rapper can’t use his own lyrics on the radio!  I am always amazed when I go to europe and can listen the radio and hear all the lyrics I’ve been missing all this time.  Taking the FCC out of the business of determining indecency would be a big plus for our country.

  • fugdabug

    OH yeah, just what we need another proof that this nation that yells far and wide it is the beacon of Democracy to prove once again it has become a society of wage-slaves and police state fascism…

    If they censor the internet my question is this:

    Who will censor the censors??? 

    Where will this craziness end? Because if WE don’t end it NOW… we only have US to blame…

    • Guest

      i’m hoping morality will…

  • ssigrid
    Do I fear the possible implications of not having a babysitter at the helm?  Unfortunately, yes.
    However, there is a phenomena exponentially more formidable than a thorn in the Lion’s paw. 
    Freedom of Speech?  No…(even though it’s a biggin’).  I’m way too ignorant to tackle an issue with such ambiguities. 
    The issue at hand?  Why does US require a babysitter?  "What’s  going on?" ~
  • T

    I once read a grand book when I was a child in school called "The Phantom Tollbooth". In it there is a place in which nobody can speak, including the story’s main character. As soon as the border is crossed they are subjected to the laws of the land and as it turns out in this land a single entity was set in charge of censoring the use of sounds, including speech. This entity is a single person in the story and has increasingly restricted the use of sound until finally the law of the land is "Silence is golden."

    Forgive me for being quite so wordy there but I see the FCC trying to regulate the internet in any way as a foolish extension of their power, a waste of taxpayer money, and to tell the truth they have too much power as it is.

    If they were to be granted this additional ability to regulate internet content, how long do we think it would take before we eventually were forced to adhere to the same kind of restrictive nonsense as the characters in "The Phantom Tollbooth"?

    Truth be told, no babysitter should be needed for the internet. What should be done to protect children and others is exactly what has been proposed since the infancy of the internet. Parents should monitor their children’s activities. In the case of businesses and other public places, they should enforce their own decency policies. There is no need for additional government control.

    Again I will point back to "The Phantom Tollbooth" and state that the entity responsible for censorship in the story sounds ridiculously restrictive, but it seems the FCC of today is really too similar to that entity in the book for my comfort. That entity form the book was given absolute power of censorship and became overbearing and corrupt. Before all was said and done that was the only entity able to speak freely.

    As the title of my post reads: Absolute power corrupts absolutely. The FCC has already shown a predisposed ability to act in a contemptible manner in many instances by suppressing freedom of speech. Allowing them further ability to suppress our ability to communicate would be on par with moving to China and attempting to blog about the government there, and I don’t think that is where we want to be.

    Let’s think logically here, why do we need the FCC to monitor these things anyway? If the radio or television broadcast offends you in some way then turn it off. If a website makes you upset, go to another one. If a book or magazine has made given you an uncomfortable feeling, put it down and try a different one. Try governing your own decency for once rather than expecting some governing body to do it for you.

    Is it extra work for us as users of the service, you bet? But for now I can actually voice my opinion here so long as I adhere to WPNs TOS and their decency policies, if we let the FCC keep going the way they have been then just trust that the law on free speech will eventually consist of three words: "Silence is golden."

  • http://www.designertrade.com DesignerTrade

    The FCC has had good and bad impacts on television. First, their stance on Closed Captioning has been positive. On the other hand, it’s ironic that while it’s permissible to say the "B" word on television, it’s not ok to show a female breast, even in a non-pornographic sense.

    As for the FCC’s reaching into regulations for the internet — in general, it’s over-reaching. As for most of us in the domain registration and hosting market, we already have terms and conditions in place that maintain publicly acceptable levels of decency. To be fair, third-parties can take things out of bounds. That’s life. Should the FCC step in to clean things up, according to their idea of what ‘decency’ is?

    First, the internet is too global. In the big picture, it’s hard to think of any other phenomenon in the history of communication that ties the international community together, other than the internet. One can post a thought or idea today, and in seconds reach people in every corner of the planet. We’re already dealing with the controversies of censorship from one country to another, as far as search results coming into play.

    Imagine a day when our children will vent on their blog, "son of a b—-" because they can’t find pictures online of the statue Esquiline Venus for a school project. After all, the commissioners of the FCC may find the classic statue’s bare breasts "titillating".

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