Over at Ars Technica, Matt Lasar does a nice job pointing out how the FCC’s quarterly indecency complaint totals have again been inflated by one group: the Parents Television Council. This is something Lasar has written about before and he’s one of the few journalists who continues to ask sharp questions about the ongoing manipulation of these statistics by PTC. As Lasar notes in his latest piece:

for the first quarter of this year, show the viewers relatively calm at 578 complaints in January, then 505 in February, followed by 179,997 in March? 179,997? Um, did we miss something? Did television really get that much more indecent in March? No worries. In these situations, we know what to do. We go over and check out the Parents Television Council‘s website. And sure enough, there’s a plausible instigator—a PTC viewer action alert crusade against a March 8 episode of the animated comedy show the PTC just loves to hate, Fox TV’s Family Guy.

This “complaint box stuffing” is something I wrote quite a bit about in the past, especially in my 2005 paper, “Examining the FCC’s Complaint-Driven Broadcast Indecency Enforcement Process.” As I pointed out there, “The PTC’s increasingly effective use of computer-generated campaigns against specific TV programs is a leading factor in explaining the large jump in indecency complaints in recent years.” Specifically, as I noted in that paper (as well as a Supreme Court filing with my friends at CDT), the FCC quietly and without major notice made two methodological changes to its tallying of broadcast indecency complaints in 2003 & 2004 that PTC  requested:

• On July 1, 2003, the agency began tallying each computer-generated complaint sent to the FCC by any advocacy group as an individual complaint, rather than as one complaint as had been done previously. The advocacy group benefiting from that change had challenged the FCC to make the change by June 30th and boasted later that it was responsible for the FCC’s redirection, citing reassurances of FCC commissioners.
• In the first quarter of 2004 — the time when the Super Bowl incident with Janet Jackson occurred — the FCC began counting complaints multiple times if the individual sent the complaint to more than one office within the FCC. This change, which had the capability of increasing by a factor of 5 or 6 or 7 the number of complaints recorded, was noted in a footnote of that quarter’s FCC Quarterly Report. The footnote acknowledged that “[t]he reported counts may also include duplicate complaints or contacts…”

As I have made clear before, I have absolutely no problem with the PTC, or any other advocacy group exercising their First Amendment rights to petition their government and make their views known. What I do have a problem with — a very big problem, in fact — is when one group so disproportionately influences the process, especially by changing the way complaints are counted. And I’m even willing to ignore the “robo-complaint” nature of their automated complaint-generation machine. After all, countless other groups use similar tactics today to flood government offices and agencies with thousands or even millions of digital form letters. But when you change the rules of the game to favor you and your preferred outcome, well, that’s just shameful.

What’s even more troubling about the way the FCC changed it complaint counting process to make the PTC happy is that the agency failed to provide the public official notice of these changes outside of some limited and quite confusing fine print in the footnotes of quarterly reports. Look as hard as you want at the FCC website and you will not find any press releases or summaries of these changes during that period. And there does not appear to be any mention of these changes in any speeches by FCC Commissioners or bureau chiefs then or since.  More shockingly, as far as I can tell, the FCC only made these methodological changes for indecency complaints, not for any other category of complaints that the agency receives!  Finally, and probably worst of all, these bogus numbers were then used by FCC officials and congressional lawmakers as supporting evidence for the supposed public outcry for more regulation of television and radio.

It’s an outrage, especially when you realize that the programs that the PTC wants censored are among the most popular on television, as I thoroughly documented in my paper.  In other words, they don’t speak for most of us when it comes to what we want to watch or listen to.  I hope the new FCC understands these bogus indecency complaint numbers do not reflect the wishes of most consumers.  Finally, those in the PTC or elsewhere who are offended by “The Family Guy” or other shows on television have plenty of tools and methods at their disposal to make sure those programs are not seen in their homes.  Please don’t try to impose your will on the rest of us when you have the tools at your disposal to do this job for you and your family.  Let’s not make Uncle Sam our National Nanny.

Here’s some good background and analysis from the Congressional Research Service (CRS) about the history and constitutional issues surrounding the Fairness Doctrine. (Matt Lasar has a summary of it over at Ars). The report, authored by CRS legislative attorney Kathleen Ann Ruane, does a nice job of outlining why, given heightened Supreme Court scrutiny of speech controls since the Red Lion days, the Fairness Doctrine would face serious constitutional scrutiny is it was re-instituted today:

It is possible that, in light of the proliferation of different types of media outlets since Red Lion, the Supreme Court will abandon the scarcity rationale for applying a lower standard of scrutiny to restrictions on broadcasters’ speech. If the scarcity rationale is abandoned, the Court will likely begin to apply strict scrutiny to broadcaster speech restrictions like the Fairness Doctrine. Because the Supreme Court has struck down regulations similar to the Fairness Doctrine when applied to other types of media, it seems unlikely that the Fairness Doctrine would survive review under strict scrutiny. […] Assuming that the Supreme Court would continue to apply intermediate scrutiny to government restrictions on broadcasters’ speech, the Court would then need to decide whether the Fairness Doctrine withstands such scrutiny. The Court may choose to uphold Red Lion and the Fairness Doctrine under the principle of stare decisis, which requires courts to adhere to precedent. The Court also may choose to analyze a newly established Fairness Doctrine in light of evidence regarding its effects on speech that has developed since the Red Lion decision. To do so, it would have to answer two questions: (1) whether the Fairness Doctrine advances a substantial government interest, and (2) whether the doctrine is narrowly tailored to achieve that interest.

But it most certainly would not pass muster is applied to cable or satellite:

It does not appear that the Fairness Doctrine may be applied constitutionally to cable or satellite service providers. The Supreme Court has held that content-based restrictions on the speech of cable and satellite providers are subject to strict scrutiny. Strict scrutiny requires that the restriction at issue advance a compelling government interest and that the restriction be the least restrictive means of achieving that interest. Content-based regulations of speech in the print media are accorded strict scrutiny. The Supreme Court has recognized that regulations similar to the Fairness Doctrine, when applied to the print media, are not constitutional. If regulations similar to the Fairness Doctrine could not withstand strict scrutiny when applied to the print media, it appears unlikely that similar regulations would withstand such scrutiny when applied to cable or satellite providers.

Complete report is embedded below as a Scribd document.

CRS Fairness Doctrine Report http://d.scribd.com/ScribdViewer.swf?document_id=12301246&access_key=key-ck3gk7wdn7wz0e6pihg&page=1&version=1&viewMode=list

Over at Ars, Matt Lasar has a piece about the need for better FCC indecency complaint statistics. He has been monitoring the wild fluctuations in indecency complaint tallies in recent years and wonders:

whether the agency’s indecency/obscenity statistics reflect spontaneous viewer response to the level of erotic/linguistic friskiness on TV or solely on the power of coordinated campaigns launched by groups like the Parents Television Council.

Indeed, PTC is the primary culprit. As I noted in my big 2005 PFF report “Examining the FCC’s Complaint-Driven Broadcast Indecency Enforcement Process”, “The PTC’s increasingly effective use of computer-generated campaigns against specific TV programs is a leading factor in explaining the large jump in indecency complaints in recent years.” The PTC has even taken credit for it themselves, as I noted in the paper.

How did the FCC’s indecency process get so screwy, and how did the PTC come to influence it so greatly? As I noted in that paper (as well as a Supreme Court filing with my friends at CDT), in recent years the FCC has quietly and without major notice made two methodological changes to its tallying of broadcast indecency complaints, both changes urged upon the FCC by a single advocacy group — the PTC — targeting broadcast indecency:

• On July 1, 2003, the agency began tallying each computer-generated complaint sent to the FCC by any advocacy group as an individual complaint, rather than as one complaint as had been done previously. The advocacy group benefiting from that change had challenged the FCC to make the change by June 30th and boasted later that it was responsible for the FCC’s redirection, citing reassurances of FCC commissioners.
• In the first quarter of 2004 — the time when the Super Bowl incident with Janet Jackson occurred — the FCC began counting complaints multiple times if the individual sent the complaint to more than one office within the FCC. This change, which had the capability of increasing by a factor of 5 or 6 or 7 the number of complaints recorded, was noted in a footnote of that quarter’s FCC Quarterly Report. The footnote acknowledged that “[t]he reported counts may also include duplicate complaints or contacts…”

For many years, the PTC has pressured the FCC to change their methodology to give greater weight to their computer-generated e-mail complaint campaigns. It appears their efforts paid off and now the PTC and other groups are essentially able to “stuff the ballot box” in terms of inflating indecency complaints at the FCC and potentially spurring increased regulatory activism as a result. In turn, these bogus numbers are cited in the press and in political statements by lawmakers when they are seeking to expand fines or regulations.

Unfortunately, even if Congress forced the FCC to fix these problems with the indecency complaint process, so long as the agency and that process exists there will be groups like PTC trying to use it to influence public policy and impose speech controls in this country. The millions of Americans who are perfectly happy with what they see on TV or hear on radio are never going to send a letter to the FCC saying as much. It’s only the hecklers that bombard the FCC with complaints and get them heard and acted upon, even if they only represent a minority viewpoint about video and audio programming.

Of course, these hecklers could just turn off those devices or use parental control tools and stratgies to deal with what their kids see and hear. Instead, those folks want to impose their will on ALL of us. Worse yet, they now are expanding their mission to include the Internet. Thankfully, we don’t have a Federal Computer Commission fielding bogus complaints about the Net.  At least not yet.