The Congressional Research Service (CRS), which is basically a small, non-partisan think tank within Congress, just released a new report on the “Constitutionality of Applying the FCC’s Indecency Restriction to Cable Television.” While trying his best to avoid any controversial statements on the matter, the report’s author Henry Cohen, a legislative attorney at CRS, concludes that “It appears likely that a court would find that to apply the FCC’s indecency restriction to cable television would be unconstitutional.” Cohen addresses the many different ways the courts might approach the issue, but points out that the government’s case will be weak in almost every respect.
This is an issue we have invested a lot of intellectual energy in at Progress & Freedom Foundation. If you are interested in our take on the constitutionality of the many ways in which Congress might seek to expand content controls to cable and satellite television, you might want to read the following 3 reports:
* “Can Broadcast Indecency Regulations Be Extended to Cable Television and Satellite Radio?” by Robert Corn-Revere, PFF Progress on Point 12.8, May 2005.
* “Thinking Seriously about Cable & Satellite Censorship: An Informal Analysis of S-616, The Rockefeller-Hutchison Bill,” by Adam D. Thierer, PFF Progress on Point 12.6, April 2005.
* “‘Kid-Friendly’ Tiering Mandates: More Government Nannyism for Cable TV,” by Adam D. Thierer, PFF Progress Snapshot 1.2, May 2005.
With a la carte regulation in the news again, I have penned a short new paper on the “Moral and Philosophical Aspects of the Debate over A La Carte Regulation.” In this PFF Progress Snapshot, I set aside the economic issues at stake in this debate and instead focus on the moral arguments that are really driving this debate today, namely: (1) that consumers have a “right” to video programming on any terms they wish; and, (2) that a la carte regulation will help “clean up” indecent programming on cable and satellite television.
To see why neither is the case, read my paper.
The UN’s World Summit on the Information Society ended today with the U.S.–or more precisely Internet users around the world–coming up winners. Efforts to impose international controls over Internet governance were firmly beaten back. Instead, the summit only called for creation of an advisory “International Internet Governance Forum,” with no binding authority. The new forum will meet next year in Greece.
Efforts to impose international control over the Internet, of course are unlikely to go away. UN Secretary-General Kofi Annan said as much earlier this week, stating that the Tunis agreement highlights the need for more international participation in discussion of Internet governance issues. The question is how to achieve this. Let those discussions continue.” For this reason, the new forum bears watching, lest it morph into an international regulatory body.
Still, its hard not to be pleased, and relieved, at this week’s outcome. The quote of the week goes to Commerce Department telecom chief Michael Gallagher, who said: “The Internet lives to innovate another day because of our combined efforts here.”
Kudos for the outcome are due to the Bush Administration for standing firm on this critical issue. Administration policymakers –including Gallagher and state department official David Gross–recognized early the dangers of globalizing Internet governance, and stood firm in their opposition.
Thanks also should go to the government of Tunisia, who hosted the conference. Its efforts to blot out unpleasant dissent during the conference–which included the blocking of websites from the country–did far more than any speech or policy paper to highlight the critical importance of protecting Internet freedom.
(For some interesting takes on the Tunis summit and its implications, check out the discussion held at The Heritage Foundation yesterday on the subject–featuring Sen. Norm Coleman, Rep. John Doolittle, fellow TLFer Adam Thierer and The Heritage Foundation’s John Tkacik.)
Delegates and other assorted hangers-on are gathering in Tunis this week for tomorrow’s start of the UN’s “World Summit on the Information Society.” Given the topic, one would expect a fairly free flow of information surrounding the event–for appearance sake, if nothing else. Not so. Reports are that Tunisian authorities broke up a meeting on press freedom, beat up a French journalist, and blocked access inside the country to a website of a side event called the “Citizen Summit on the Information Society.”
Certainly an odd way to begin a summit on the information society. If this is what happens when a government is on its best behavior, what happens when nobody is watching? No wonder there’s so much opposition to plans–to be debated at the summit–to “globalize” governance of the Internet.
The Tunis summit, by the way, will be the subject of a Heritage policy forum on Thursday, November 17 at 10 am. Speakers include Sen. Norm Coleman, Rep. John Doolittle, Heritage China expert John Tkacik and fellow TLF blogger Adam Thiere. If you are in DC, stop by. If not, you can catch it on the web. Details here.
Each quarter, the Federal Communications Commission (FCC) releases a report documenting the number of complaints that the agency receives. The numbers that they gather for “indecency” related complaints are increasingly drawing the most attention. Indeed, these numbers are mentioned frequently in news reports and are also cited by many lawmakers as the driving force underlying federal efforts to crack down on unseemly broadcast content.
But what do we know about these numbers and how they are gathered? Like most people, I’ve always just taken it for granted that most government statistics are accurate and can be trusted. I know there are flaws in some statistically gathering efforts (consider inflation or productivity numbers), but at least the government is doing it’s best to accurately gauge those trends. And, so, I figured the same was true of FCC indecency data.
Sadly, however, that doesn’t appear to be the case. Indeed, as my new paper “Examining the FCC’s Complaint-Driven Broadcast Indecency Enforcement Process” shows, the FCC now measures indecency complaints differently than all other types of complaints and does so in a way that artificially inflates indecency tallies relative to other types of complaints.
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By now you’ve heard that Apple is launching a video-capable version of its wildly popular iPod. Apple is a real trailblazer, obviously, when it comes to innovative mobile media applications, but they’re not the only one.
For example, take a look at EchoStar’s incredible new application, the “Pocket DISH.” The PocketDISH allows consumers to access video, music, games and photos all on one small device. PocketDISH owners will be able to transfer programs from DISH Network receivers to the player and then enjoy their favorite programs on the go. It’ll be like having a TiVo in your pocket.
And the PlayStation Portable offers most of the same capabilities too. After enterprising hackers modified the PSP to do a heck of a lot more than just play games and watch movies, Sony decided to offer PSP owners downloadable software “patches” that expand the PSP into the ultimate all-in-one multi-media device. For example, click here if you’d like to find out how to watch TV using a PSP.
These amazing innovations once again illustrate the challenge lawmakers will face in the future regarding media regulation. Indeed, as I will argue in my next book, content controls are essentially doomed in our new world of media convergence and rapid technological innovation.
Think about it… how do you regulate devices like Apple’s video iPod, the PocketDISH, and the PlayStation Portable when consumers can use them (and modify them) to do just about anything and receive any type of media they want, wherever they want, whenever they want? Broadcast era content controls just won’t work in this environment absent extremely intrusive measures. But I’m sure that won’t stop lawmakers from trying.
Believe it or not, cell phone movie makers now have their own Academy Awards, at least in Europe, that is. The BBC reports that Europe’s first film festival for mobile phone movies will open this week in Paris.
While mobile video is just starting to catch on here in the U.S., it is all the rage over in Asia and Europe since citizens have been quicker to jump on the wireless bandwagon there. As a result, cell phone “art” has been quicker to develop and is now even the subject of contests and awards.
I find this particularly interesting in light of Europe’s ongoing efforts to expand media regulation. You will recall that Patrick Ross released a short paper last week about efforts underway in the European Union to grapple with media convergence and the challenges it poses for traditional media regulation. In “Regulation Without Frontiers: Europe Shows U.S. Policymakers How Not to Embrace Convergence,” Patrick notes that European regulators are foolishly looking to impose outmoded, broadcast-era regulatory mandates of the fast-paced, borderless new world of online media.
So what do the EU regulators plan to do about all these mobile media movies and videos that are now winning awards?!? How are they going to regulate all this stuff? If, for example, someone creates an award-winning but very controversial film and makes it widely available via mobile devices, how are regulators going to bottle that up? Are they going to fine that person directly (assuming they can find them)? Or are they going to force mobile media network providers to police their networks and censor on behalf of government? Are they going to require all this stuff to be rated or filtered? Regardless of the enforcement path they choose, I just don’t see how it could work.
Of course, we can expect this same debate to come to America very soon. We’re already seeing early proposals to extend broadcast regulations to cable and satellite, so it wouldn’t be surprising to see regulators target mobile media next.
The other day, a report came out from an inflential media advocacy group advocating “unplugging” the Corporation for Public Broadcasting and making it independent of the federal government. Such calls, of course hardly cause a ripple when they are made by conservatives or liberations (even here at TLF). But this particular report was from FAIR — Fairness and Accuracy in Reporting–a certifiably Leftie group that campaigns against conservative bias in the media. (With–until recently–stunning success, it seems. Of course, they don’t see it that way.)
Anyway, FAIR is fed up with CPB, now that it is led by conservatives, such as Ken Tomlinson, its chairman. Tomlinson has been pushing to balance public broadcasting’s output–which has been famously left-leaning for years. (They see Tomlinson, of course, as pushing for conservative bias in public broadcasting.)
FAIR’s solution: to cut CPB off from the federal government, making it an independent foundation. Enough of trying to “save” CPB, they say. The only way to protect public broadcasting is to cut it free of meddling (conservative) officials. They write:
Media activists, independent producers and public broadcasting advocates need to ask themselves whether CPB funding is needed to keep public broadcasting afloat–or whether that government support compromises the very independence of PBS and NPR, and prevents them from ever fulfilling their promise.
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[cross-posted from the PFF Blog]
The House of Representatives’ Energy & Commerce Committee released draft legislation yesterday aimed a cleaning up the nation’s telecom and cable laws. A revision of the Telecom Act of 1996 has been in the works for some time and is very much needed, so most parties welcomed this news.
Here at PFF, of course, we’ve been working hard with a group of respected academics and experts to provide a new framework for communications policy reform. That project is called “DACA,” which stands for Digital Age Communications Act.
One thing we largely left out of DACA effort was any in-depth discussion of video regulation. That is, the extensive “public interest” regulatory regime that currently covers the broadcast sector and to some extent cable and satellite services. There were several reasons we left it out of the DACA project; most importantly, we simply felt that most of these rules could easily be sunset in light of growing competition in the multi-channel video marketplace and the media universe more broadly. Under our DACA framework, any “market power” problems that might develop in the future video / media marketplace would be handled with simple competition policy principles borrowed from antitrust law.
So Much for “Hands Off the Net”
Unfortunately, after looking through the House Commerce Cmmt. draft legislation last night, I realize that not everyone shares our opinion about the growing media market competition alleviating the need for extensive “public interest” regulation of the video marketplace. Specifically, Sec. 304 of the bill (which begins on pg. 41 of the discussion draft) is entitled “Application of Video Regulations to Broadband Service Providers.” Section A which immediately follows is appropriately labeled “Comparable Requirements and Obligations,” and then goes on to not how “each of the following provisions of the 1934 [Communications] Act, and the regulations under each such provision, that apply to a cable operator shall apply to a broadband service provider under this title in accordance with regulations prescribed by the Commission…”
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Salon is reporting the FCC Chaiman Kevin Martin has been meeting privately with numerous religious and “pro-family” groups to coordinate to “address racy content on cable and satellite television.” One of those who sat in on these meetings, Rick Schatz, president of the National Coalition for the Protection of Children and Families, told Salon that during these meetings “[Martin] said the free rein of cable and satellite and satellite radio is not acceptable,” and that Martin is “committed to seeing something is done during his tenure.”
This comes as no surprise, of course. While things have been quiet for the past few months, most industry watchers agreed that the reason for the delay on this front was that the pro-regulatory forces were quietly planning their attack on cable and satellite. As the Salon article makes clear, censorship proponents know they have an uphill battle and are tightly coordinating their efforts to radically expand the scope of federal indecency law.
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The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.