The indecency fines imposed recently by the FCC have raised a lot of eyebrows, for their inconsistency as well as severity. (See Adam Thierer’s excellent discussion here.) Now, however, the FCC’s basic competence is at issue. According to Communications Daily, among the fines handed down by the Commission two weeks ago were several on stations in Indiana which aired the CBS show “Without a Trace.” Turns out however, that the stations aired the shows at 10 pm, when such content is allowed, not at 9 p.m. as the FCC believed. Apparently, the ever-vigilant regulators at the Commission didn’t know that most of Indiana is in the Eastern, not Central, time zone.
Certainly, Indiana’s time zones are confusing–the state is split between two time zones, and doesn’t go on Daylilght Savings Time. But, really, how hard could it be for the FCC to look these things up? A good Google search would have provided the answer, as would the maps in the front part of any phone book. (No doubt the FCC has lots of phone books around.)
The extra effort would seem well-justified–the stations involved were fined some $162,000 for their “violations.” That kind of money could buy an awful lot of watches.
The episode is (or should be) embarrassing to the Commission, and troubling for the rest of us. If the regulators can’t even get the time of day right, what are the odds they are getting the harder questions right? One more reason to question the whole notion of FCC speech regulations.
Perhaps it’s time for a change.
As I’ve mentioned several times before on this site, I’m finishing up a new book on the future of control controls in a world of media convergence. My thesis is simple: Content regulation is doomed. A confluence of social, legal and, most importantly, technological developments is slowly undermining the ability of legislators and regulators, at all levels of government, to control the nature or quality of media programming. The demise of content controls may take many years–potentially even decades–to play out, but signs of the impending death of the old regulatory regime are already evident.
A perfect example of this came today when the WB television network announced that it would be self-censoring several scenes from a new drama that was about to air on its broadcast television affiliates. The network claimed that in light of last week’s decision by the FCC to impose steep new indecency fines on certain broadcast television shows, it was unsure if it’s new drama (“The Bedford Diaries”) would run afoul of FCC indecency “standards.” So the network will be airing a self-censored version of the show next week.
But here’s what’s really interesting: Before that episode is aired on their WB broadcast television outlets, the network has decided to air the unedited version on their Internet website. Starting today, anyone can download the uncut Bedford Files episode and watch on their PC or portable media device for free. According to the New York Times, “It is the first time a network has offered on another outlet an uncut version of a program it has been forced to censor.” But, needless to say, it won’t be the last time this happens in a world of proliferating media platforms.
Continue reading →
I’ve just released a new paper entitled “Fact and Fiction in the Debate over Video Game Regulation.” At the state and local level, over 75 measures have been proposed that would regulate the electronic gaming sector in same fashion. More importantly, another new federal bill was introduced recently that would establish a federal enforcement regime for video games sales and require ongoing regulatory scrutiny of industry practices. S. 2126, the “Family Entertainment Protection Act” (FEPA), was introduced last December by Senators Hillary Clinton (D-NY), Joe Lieberman (D-CT), and Evan Bayh (D-IN) to limit the exposure of children to violent video games.
In my essay, I address several of the most common myths or misperceptions that are driving this push to regulate the electronic gaming sector. My general conclusions are as follows:
>> The industry’s ratings system is the most sophisticated, descriptive, and effective ratings system ever devised by any major media sector in America.
>> The vast majority of video games sold each year do not contain intense violence or sexual themes.
>> Just as every state law attempting to regulate video games so far has been struck down as unconstitutional, so too will the FEPA.
>> The FEPA could derail the industry’s voluntary ratings system and necessitate the adoption of a federally mandated regulatory regime / ratings system.
>> No correlation between video games and aggressive behavior has been proven. Moreover, almost every social / cultural indicator of importance has been improving in recent years and decades even as media exposure and video game use among youth has increased.
>> Video games might have some beneficial effects–especially of a cathartic nature–that critics often overlook. And, contrary to what some critics claim, violent themes and images have been part of literature and media for centuries.
I encourage you to read the entire paper for more details. It can be found online here: http://www.pff.org/issues-pubs/pops/pop13.7videogames.pdf
According to the NY Post, actor Tom Cruise has apparently persuaded Viacom-owned Comedy Central to cancel the rebroadcast of a controversial “South Park” episode about Scientology. He apparently threatened to refuse to promote the Paramount Pictures film “Mission Impossible 3” that is coming out this summer. (Paramount is also owned by Viacom.)
What a fool he is. Top Gun boy has just done more harm to his beloved Scientology religion than he can possibly imagine. By forcing Comedy Central to cancel the showing of that South Park episode poking fun at Scientology, everybody and his brother will now seek that episode out and view it somehow. I bet the episode will be the #1 most downloaded video on the Internet in less than a week. Don’t people ever learn to just ignore stuff that offends them and move on? By making a fuss about it they just draw our collective attention to it. Indeed, I’m going to go check my TiVo right now and see if I recorded this episode. It sounds funny. Thanks for bringing it to my attention Tom!
The FCC dropped a bombshell yesterday when it handed down a set of record-setting fines for supposed violations of its broadcast indecency rules. CBS alone faces over $3.6 million in fines for a single episode of “Without a Trace.” A NBC-owned Spanish-language station faces a big fine as does two other Spanish-language shows. And CBS got nailed again for the infamous Janet Jackson Super Bowl incident. And there were several other fines handed down. Regardless of what you think about the fines, the FCC’s actions yesterday will almost certainly be the start of a major court battle that could result in a historic First Amendment decision when all is said and done.
Modern Indecency Law: About As Clear As Mud
Broadcasters will have a strong case when they get the rules in court. The FCC has steadily increased the scope of its indecency enforcement policy over the past 15 years and created a regulatory regime that is about as clear as mud. The vagueness of the FCC’s indecency regime is clearly on display in the new decision. For example, the agency throws the book at a noncommercial educational station for broadcasting a Martin Scorcese-produced blues documentary with a few F-bombs in it, but then they give Oprah a free pass for a show about the “secret lives of teenagers” that including a detailed discussion of “oral anal sex.” In other words, if a few blues musicians use some salty language during a documentary at 9:30 at night (when most kids are already in bed), the station gets a fine. But if Oprah wants to have an explicit discussion about teenagers’ filthiest sex habits at 4:00 in the afternoon (right when kids are getting home from school), well then the FCC says by all means go right ahead! Does that make any sense?
This epitomizes how convoluted and arbitrary modern indecency law has become. If you want to know how confusing things have gotten over the last few years, consider these examples:
Continue reading →
Michael Geist notes the recent decision in Bunt v. Tilley, a case in the High Court of Justice, Queen’s Bench Division. The plaintiffs in the case argued for holding ISPs liable when their services are used in defamation. Happily, they lost.
There is an argument that ISPs represent the most efficient source at which to control all kinds of bad acts, including gambling, defamation, copyright violation, propagation of viruses, and so on. As I argued in my Regulation paper “Against ISP Liability,” though, efficiency is not the highest goal of legal rules.
Supposedly efficient ISP liability would be devastating to the Internet. I quote me:
Consider the Internet access market and the viability of the network effect if ISPs were liable for copyright violation, obscenity, and defamatory statements put out by their clients. Looking at potentially massive payouts, ISPs would screen content thoroughly, charging clients substantially higher sums for the service. They would restrict their clientele to established media companies and sophisticated, wealthy parties who could
indemnify them.
Under such a regime, the Internet might be about where digital cable systems are, with lots of downstream content and very little opportunity for interactivity, much less individual publishing. The robust, democratized, one-to-all medium we have today . . . was not a foregone conclusion in its early years.
So I approve of the result in Bunt v. Tilley, though there are flaws. Geist points out a suggestion in the case that notice to an ISP of defamatory content might be enough to create liability. But I hope that future cases will dispel that notion.
I like to think that what is happening here is what would have happened in the U.S. in the absence of the Communications Decency Act, which preemptively did away with ISP liability. Me I quote approvingly again:
Had common law processes been left to determine ISPs’ liability, a variety of courts would have weighed the competing interests through strings of real-world decisions over several years. As likely as not, they would have concluded that ISPs have no duty to protect the world from their clients.
According to news reports, Democratic Sen. Jay Rockefeller (D-W.Va) is planning on trying to force the Senate Commerce Committee to include a controversial cable censorship proposal in a broad-based telecom reform bill the Committee might consider shortly. Along with Republcan Sen. Kay Bailey Hutchison (R-TX), Rockefeller introduced S. 616, the “Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005.” (I penned a lenghty analysis of this bill in the a PFF paper last year entitled: “Thinking Seriously about Cable & Satellite Censorship: An Informal Analysis of S. 616, The Rockefeller-Hutchison Bill.”)
In a nutshell, the Rockefeller-Hutchison bill proposes to roll the old broadcast industry content control regime onto subcription-based media outlets, namely, cable and satellite television distributors. James Reid, Sen. Rockefeller’s top telecom policy aide, told a crowd at a National Association of Broadcasters conference yesterday that “Sen. Rockefeller plans to offer his bill, in totality, or section-by-section, as amendments to the telecom bill as this goes forward.” If implemented, the bill would:
Continue reading →
Dr. John Rutledge offers a perspective on Chinese censorship, greatly informed by his frequent travels there. An excerpt:
I use the word “attempt” because, as any parent can tell you, controlling the communication of young people is impossible. That’s just as true in China as in the US. The kids there have cell phones too. And like our kids they don’t talk with each other any more; they just send IM’s (Instant Messages).
They are also good at circumventing restrictions by inventing new words to replace the keywords the censors dislike.
Young people I have spoken with in China (they actually “talk” with old people like me who don’t know how to IM) tell me they have easy access to 95% of the information on the Internet, although they sometimes resort to Internet Cafe’s to do so.
Thus I persist in optimism.
On Tuesday I participated in a very interesting roundtable discussion on the future of content regulation in a multi-media world. The event was held at Yahoo! headquarters in Sunnyvale, CA and it featured representatives from a wide variety of companies and private organizations including: Google, Microsoft, AT&T, Verizon, AOL, Yahoo!, TRUSTe, the Kaiser Family Foundation, and Children Now. Our discussion focused on how to craft workable, private parental controls for Digital Age media content.
The roundtable was hosted by Stephen Balkham, CEO of the Internet Content Rating Association (ICRA). ICRA is an organization which works to create a safer online environment for kids by devising workable screening solutions for parents. In particular, ICRA has been a pioneer in the field of Internet content labeling and filtering. The organization has developed a system of objective content descriptors that website operators and other online media providers can use to label their content. Some of the companies and organizations listed above, as well as many other Internet, media and telecom companies, have already signed agreements with ICRA to use their content labels. Most recently, AT&T and Verizon agreed to use ICRA system to label their content offerings.
The Challenges of Controlling Content in a World of Media Abundance
I kicked off the roundtable with a “50,000-ft.” overview of the challenges that lie ahead. My remarks were drawn from the introduction to my new book on content controls in a world of media convergence. At the conference, as in my book, I put forward the thesis that content regulation, as we have traditionally understood it, is doomed. This is because a confluence of social, legal and, most importantly, technological developments is slowly undermining the ability of legislators and regulators, at all levels of government, to control the nature or quality of media programming. The demise of content controls may take many years–potentially even decades–to play out, but signs of the impending death of the old regulatory regime are already evident.
Continue reading →
Last week I outlined a few of my concerns with the FCC’s new a la carte report. I was relieved to see that others are raising similar issues with the report.
For example, Fortune senior writer Marc Gunther published an essay today entitled “Why A La Carte Cable TV is a Nutty Idea.” And Kansas City Star TV Critic Aaron Barnhart released an essay on Friday entitled “The Indecency Wars: Book II.” Gunther and Barnhart share similar concerns about the new report.
First, Gunther and Barnhart agree that the FCC’s report is remarkably ambiguous on several key issues. Gunther notes that:
“the FCC report is filled with so many ‘mights’ and ‘coulds’ that it’s impossible to know whether unbundling would drive down rates. The FCC admits that it lacks data ‘about what a la carte prices would be for individual networks.'”
Barnhart agrees and is even more scathing in his criticism of the report’s ambiguity:
“If you actually read the report, you’ll be amazed at how little [Chairman Kevin] Martin actually asserts as fact. There are a thousand “coulds,” “mights” and “mays” the cumulative effect of which is to create the perception it has refuted the Powell report line by line. In reality, Martin’s report has more fudge in it than Grandma’s cupboard.”
Ouch!
Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.