Articles by Adam Thierer 
Senior Fellow in Technology & Innovation at the R Street Institute in Washington, DC. Formerly a senior research fellow at the Mercatus Center at George Mason University, President of the Progress & Freedom Foundation, Director of Telecommunications Studies at the Cato Institute, and a Fellow in Economic Policy at the Heritage Foundation.
Next Thursday, July 3rd will mark the 30th anniversary of the Supreme Court’s landmark First Amendment decision, FCC v. Pacifica Foundation. Sadly, but somewhat ironically, the anniversary of this decision comes just a few days after we lost America’s greatest modern social satirist George Carlin, whose infamous “seven dirty words” monologue prompted the Supreme Court’s Pacifica decision. After a Pacifica Foundation radio station aired Carlin’s monologue and the FCC took action against that station, a court battle ensued regarding whether the agency had the authority to censor “indecent” content on broadcast radio and television stations.
Unfortunately, when the Supreme Court handed down its
Pacifica decision 30 years ago, the First Amendment lost. By a narrow 5-4 vote, the court held that the FCC could impose fines on broadcasters who aired indecent content during daytime and early evening hours. The Court used some rather tortured reasoning to defend the proposition that broadcast platforms deserved lesser First Amendment treatment than all other media platforms. The lynchpin of the decision was the so-called “pervasiveness theory,” which held that broadcast speech was “uniquely pervasive” and an “intruder” in the home, and therefore demanded special, artificial content restrictions.
Over the course of the next week, I plan on posting some thoughts about that twisted logic and the legacy of the
Pacifica decision in general. In part 2, I’ll sketch out the broad outlines of FCC indecency enforcement over the past 70 years. In part 3, I’ll be highlighting some of the original deficiencies of the “pervasiveness doctrine.” Part 4 will highlight the irrelevancy of Pacifica and the pervasiveness doctrine in light of recent technological developments. These (and potentially other) installments will highlight why Pacifica was always bad law and is even more misguided and unjust in light of recent marketplace developments.
Couch potatoes of America, have no fear… Your friendly neighborhood super-regulators are about to swoop in and save you from the scourge of loud TV ads and “illegal” product placements! As we all learned in our high school Civics 101 classes, this is why the American Revolution was fought: We Americans have an unambiguous constitutional birthright to be free of the tyranny of “excessive loudness” during commercial breaks and pesky product promos during our favorite network dramas. (Seriously, it’s right there in the footnotes to the Bill of Rights; you probably just missed it before.)
Rep. Anna Eshoo (D-Calif.) has the first problem covered. She and her House colleague Rep. Zoe Lofgren (D-Calif.) are proposing H.R. 6209, the “Commercial Advertisement Loudness Mitigation Act.” (Oh, isn’t that so cute! The “C.A.L.M. Act”! How very, very witty.) The CALM Act would address “volume manipulation” in TV ads by making sure that TV ads are not “excessively noisy or strident.” (Strident! We Americans hate “strident” ads.) The bill would empower regulators at the Federal Communications Commission to take steps to ensure that “such advertisements shall not be presented at modulation levels substantially higher than the program material that such advertisements accompany; and, the average maximum loudness of such advertisements shall not be substantially higher than the average maximum loudness of the program material that such advertisements accompany.”
Clearly, this is valuable use of our regulators’ time. I look forward to the day when I can visit the FCC and see my tax dollars at work as teams of bureaucrats closely monitor each episode of “Desperate Housewives” and “Swingtown” in search of such malicious volume manipulation during the commercial breaks. (Incidentally, where is the form I need to fill out to get that job? Heck, I’ll take minimum wage pay to do this all day long.)
Continue reading →
As James Gattuso noted last week, the XM-Sirius merger review has now entered the realm of the theater of the absurd. It’s not just that the FCC has lapped its 180-day merger review shot clock two-and-half times already (we’re over 450 days into the proposed merger, after all), but it’s the fact that there seems to be no end to the list of conditions that some regulatory advocates or policymakers want to extort out of the firms. After all, according to the latest press reports, the FCC has already managed to extract the following “voluntary” concessions out of them: a price cap on programming for potentially 3 years; a la carte programming requirements; new interoperability standards for satellite radio receivers; capacity set asides of something like 4 percent of their spectrum capacity (apparently about 12 channels) for non-commercial educational programming; and potentially the lease of another 4 percent of capacity to minority or women-owned enterprises.
These are astonishing concessions, and one is forced to wonder if the merger was really worth it and whether the merged firm will really be able to survive the intensely competitive media landscape it finds itself in with such constraints in place. Let’s not forget, although both firms have grown their subscriber rolls, they have NEVER found a way to turn a profit! And new audio options continue to pop up seemingly every week and bombard our ears with evermore news, information and entertainment.
Alas, all those concessions appear not to be enough to satisfy some on Capitol Hill. According to today’s Washington Post:
Continue reading →
Nick Carr tells us that Google and the Net are making us stupid. And, over at Slate, Michael Agger calls us “Lazy Bastards” for how we read online.
So, what do you think? Is the Net destroying our attention spans and turning us in to mindless, robotic sheep?
[My own take… The Net isn’t making us stupid, but it is changing the way we process information and, for better or worse, affecting our patience regarding some forms of media / writing. The death of media scarcity and the rise of information abundance was bound to have profound implications for how we read, write and communicate—in most ways for the better, but perhaps in some ways for the worse. I doubt we’ll ever have a Shakespeare arising from the world of Twitter, for example, but I believe we are better off for having technologies and media platforms like it in our lives. We just all struggling to find balance and a sensible middle ground in a world where our senses are being bombarded with an unprecedented number of choices and volume of information. But I’ll take that predicament over our miserable past existence any day of the week. Down with scarcity; up with abundance!]
Are you still reading, or have I already lost your attention?!
Lest any of us forget how lucky we are to live in a country where our speech rights are (largely) protected from oppressive government laws… Adam Liptak of the New York Times reminds us today in a wonderful front-page article: “Unlike Others, U.S. Defends Freedom to Offend in Speech.”
Washington Post columnist Harold Meyerson has a truly outrageous editorial in today’s Post comparing Sam Zell, the investor who just took the Tribune Co. private, to a domestic terrorist. Meyerson suggests that Zell belongs behind bars for his attempt to restructure the Tribune’s struggling newspaper business:
On Oct. 1, 1910, a bomb set by James McNamara, an operative of the Iron Workers union, then embroiled in a ferocious dispute with the Los Angeles Times, blew up the Times building, killing 21 pressmen. McNamara was arrested the following April, convicted and later sentenced to life in prison. He died in San Quentin in 1941.
The question for today is: Would a similar sentence be appropriate for Sam Zell? Zell, for those of you fortunate enough not to follow news of the newspaper business, is the Chicago real estate magnate who last year purchased the Tribune Co., which owns the Times, the Chicago Tribune and a number of smaller papers. At the rate he’s going, he’s well on his way to accomplishing a feat that McNamara didn’t even contemplate: destroying the L.A. Times.
This is absurd and insulting on its face since Zell can hardly be equated with someone who engaged in an act of violent terrorism
that killed people. Attempting to restructure a struggling business is hardly on par with that. But let’s ignore Meyerson’s ridiculous analogy and instead just look at the facts about what Zell is doing and why he is doing it. Meyerson is apparently oblivious to the fact that the newspaper industry finds itself facing something akin to a marketplace perfect storm. Advertisers are flocking to alternative platforms. Classified ads are being cannibalized by CraigsList and Google. Readers have discovered myriad other media platforms and forms of content to occupy their time. And policymakers still won’t give newspapers an ounce of regulatory relief that might let them restructure their business by partnering with others in their local communities who might help them stay afloat. [I thoroughly documented all of this bad news in part 7 of my ongoing “Media Metrics” series, “An Uncertain Future for Newspapers.” ]
Meyerson is undeterred by these pesky facts and instead shifts all the blame of downsizing at Tribune papers to Zell. Has Sam Zell gone too far in suggesting that papers may need to get slimmer, trim staff, find a way to run more ads, and so on? Some would say yes, and I might even agree with them to some extent. You can’t have great papers without great journalists and editors, after all. And if the whole paper is full of nothing by ads and recycled content, no one will read it.
Others, however, would argue that Zell isn’t going far enough fast enough to retool and restructure for a digital future. Regardless, despite Meyerson’s attempt to paint him as a pariah, Zell is only doing what most industry analysts have suggested must be done–at least in some measure–to keep newspapers alive going forward. And make no doubt about it, the evidence (which is presented down below the fold) makes it clear that newspapers are in serious trouble. Instead of offering even one constructive solution, however, Meyerson inappropriately channels his rage about the demise of the daily paper at a man who is doing his best to make sure that the daily paper will even continue to exist ten years from now. Is that really akin to an act of terrorism? I think not, and shame on Harold Meyerson for suggesting as much.
Incidentally, what I found somewhat ironic about Meyerson’s piece is that he is ranting about what he regards as the over-zealous effort of an
individual owner to restructure a private company. (Again, Zell took Tribune private not that long ago). And yet, that model—individual or family ownership of newspaper vs. public / shareholder ownership—is what most media critics claim is part of the salvation for media markets! That is, many media critics constantly complain about “Wall Street pressures” or “shareholder influences” on newspapers and claim that individual or family ownership shelters papers from unreasonable marketplace demands (namely, the need to make money). Well, that theory was always highly dubious as we now see quite vividly with Tribune and other media properties as they go private. Private owners end up taking most of the same steps publicly-owned enterprises do in an attempt to restructure or save their struggling business.
Continue reading →
Berin Szoka and I just released a short article on the FCC’s proposed follow-up to the failed 700 mhz D Block auction: a
free,
nationwide wireless service that would serve public safety users as well as consumers. It’s attached down below or the PDF can be found here.
What’s Worse Than Rigged Auctions & Internet Censorship?
How About Both in One Package!
a PFF
Progress Snapshot
Release 4.12 June 2008
by Adam Thierer and Berin Szoka
The big spectrum policy debate in town these days continues to be the fight about how to redo the botched D block auction. As we all know, FCC Chairman Kevin Martin’s previous effort to micro-manage that auction failed miserably. Sadly, the follow-up plan isn’t much better, as the Wall Street Journal notes in an editorial today:
You’d think Chairman Martin would have learned from this experience. It’s not the role of regulators to pick winners and losers to achieve their preferred social outcomes. Private competition and the price mechanism can most fairly and efficiently find the best use for scarce spectrum. The FCC’s clumsy attempt at social engineering resulted in a failed auction that has prevented otherwise desirable spectrum from being put to commercial use.
Alas, Mr. Martin has now proposed another wireless auction for a separate piece of spectrum. And this time he wants to require the winner to offer free Internet access that filters out pornography–conditions that obviously would decrease the value of the license and turn off potential bidders. It just so happens that Mr. Martin’s proposed auction seems tailor-made for the business plan put forward by M2Z, another politically connected Silicon Valley start-up looking to enter the wireless broadband telecom market.
Continue reading →
In his own special way, the always-provocative Mark Cuban throws down the gauntlet on bandwidth hogs:
When it comes to broadband internet access, you can have speed or large volumes of data transfer. You can’t have both. One certainty in the broadband world is that for those of us with cable or DSL modems connecting us to the internet, there is still a finite amount of bandwidth available. When a user consumes a disproportionate and significant amount of bandwidth, it can and will slow down everyone. I hate that.
If the choice is between your being able to download more movies or other video and my getting the best possible speed from my internet connection, I’m thrilled when you get kicked off. It can’t happen soon enough. Speed is what I need. Take all your P2P downloads and get the hell off my internet.
I have no sympathy for bandwidth hogs. You all are productivity killers for the rest of us. People who are working, people who are trying to play games, people who are in virtual worlds, people who are networking, people who are just trying to watch a Youtube video or their favorite TV show, you all are the reason why we get incredibly annoyed by slowdowns and buffering.
Leave and take your bit torrent client with you.
Well, we’re not quite that hard-nosed about it here, but we’ve written a few things about broadband metering / tiering that you might find of interest: Drew, Cord, Ryan, and me (1, 2, 3, 4, 5).
Last week I noted how I struggled to get through a 5-day vacation without the Internet, blogs, e-mail and my other daily informational inputs. I was both trying to see if I could do it and also giving in to the pleading of my family, who had been asking me to stay away from the Net and electronic gadgets for at least one vacation.
Mark Glaser of MediaShift has taken it a step further and is experimenting with the idea of a “technology sabbath,” i.e., taking one day at week to relax and get away from technology to ponder or experience other things. Here’s how he explains it:
So, being that I am Jewish — though not very religious — I decided to shut down the computer each Friday night at sunset until Saturday at sunset, the traditional time of the Jewish Sabbath. I make exceptions when I need to get directions or check for a personal email. I still use my cell phone but try to limit it to personal calls only. While this day of technological rest can be a difficult routine, it has allowed me to stretch my time, spend more hours outside and be with people more in face-to-face settings.
And I’m not alone. The concept of a “Technology Sabbath” is becoming more widespread, both in religious circles and among bloggers and media people who are overwhelmed with the always-on nature of the broadband Internet and smartphones. And that overwhelming feeling is exacerbated by instant messaging, social networking and services such as Twitter, that allow us to do more informal communications electronically rather than in person.
Boy, I just don’t think I could do it. At least not on a set basis. Some weekends, mostly without even thinking about it, I don’t turn on my computer or any gadgets because I’m playing with the kids, busy doing home renovations, driving my sports car, or entertaining guests. But it’s still pretty rare for me to make it through the entire day–even on the weekend–without ever cracking open my laptop. Not sure I would be able to set aside an entire day on a regular basis to go techno-free.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.