Imagine you built a platform in your backyard for the purpose of informing or entertaining your friends of neighbors. Now further imagine that you are actually fairly good at what you do and manage to attract and retain a large audience. Then one day, a few hecklers come to hear you speak on your platform. They shout about how it’s unfair that you have attracted so many people to hear you speak on your soapbox and they demand access to your platform for a certain amount of time each day. They rationalize this by arguing that it is THEIR rights as listeners that are really important, not YOUR rights as a speaker or the owner of the soapbox.
That sort of scenario could never happen in America, right? Sadly, it’s been the way media law has operated for several decades in this country. This twisted “media access” philosophy has been employed by federal lawmakers and numerous special interest groups to justify extensive and massively unjust regime of media regulation and speech redistributionism. And it’s still at work today.
Take, for example, the announcement made yesterday by a coalition of interests billing themselves as the “Media & Democracy Coalition” who released a “Media Bill of Rights.” Hey, who could be against media and democracy? And who could be against a media “Bill of Rights”? Well, let’s take a closer look at what they’re after before we let them get away with equating their efforts to Mom, baseball and apple pie.
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[[cross-posted from the PFF blog]]
I want to say a few words about this debate over the application of campaign finance regulations to the Internet and Web blogs in particular, but let me just start by admitting that I’m not an expert on campaign finance law. In fact, I am utterly mystified by this entire body of law, not only in terms of its sheer complexity, but also in terms of what it sometimes hopes to accomplish.
I understand that (at least in theory) the laws are suppose to eliminate “corruption” from our political process. But is it just me or is it not that case that campaign finance laws continue to get more complicated while the political process remains just about as “corrupt” as it has always been?
Well, maybe I’m just a cynic about the political process in general. So, let me instead just focus on all this from the perspective of a guy who cares about new media. The current batch of campaign finance regulations is really geared toward broadcasting and broadcast television in particular. But, as of late, the folks down at the Federal Election Commission (FEC) have discovered this thing called the Internet and this new craze called blogging just might have a little impact on the future of media in this country and, therefore, by extension, our political process.
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As I’ve mentioned in previous posts (here and here), the potential for cell phone content regulation is something worth monitoring. There have been some rumblings in Washington already about the need for the wireless industry to take steps to shield children from potentially objectionable material even before it hits the market. And you’d have to be a fool not to realize that at some point very soon, technological & media convergence is going to bring adult-oriented fare to mobile devices. The question is, once that happens, will regulatory convergence follow technological convergence? More specifically, will broadcast TV and radio “indecency” controls be imposed on wireless content in coming years?
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PFF has just released my new PFF paper on the rising threat of cable and satellite censorship. In the paper, I provide a section-by-section analysis of the leading pro-censorship measure, S. 616, the “Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005.” My analysis of the bill can be summarized as follows:
* Section 2’s pervasiveness rationale has never been applied to newspapers and the Internet, and would be constitutionally suspect for cable and satellite.
* Sections 4, 7 and 8 would impose mandates on warning systems and filters deployed voluntarily by programmers. These efforts might best be grouped under the theme ‘hanging the industry with its own rope.’ Ratings systems are subjective, and government shouldn’t have any say over them.
* Section 5’s significant fines would carry the “clear as mud” indecency enforcement to cable and satellite, expanding the current confusion on what is appropriate.
* Section 6 would potentially abrogate contracts between national networks and their TV affiliates by forcing networks to expand veto power over programming, despite the fact that local affiliates already have significant influence.
* Section 10’s proposal of a return of a “voluntary” code of conduct seems far from voluntary, with an implicit “or else” attached.
* Section 11 would exempt premium and pay-per-view channels, but what happens if S-616 forces popular content onto these networks and viewers follow? Would they then be regulated as well?
Please read the paper for more details. While the entire bill may not pass, given the atmosphere on the Hill and at the FCC today, portions of S. 616 could easily become law in coming months and years.
As I mentioned in a previous post, cellphone television is coming and that raises the interesting question of whether cellphone censorship will follow.
The New York Post has a short article today about the new race to develop a standard for cellphone video transmission. The article quotes Neil Strother, an analyst with In-Stat, a Scottsdale, Ariz., tech research firm, saying: “It’s a technology that’s here. But I think it’ll be about four years before it becomes mainstream.”
So cellphone video is coming quicker than anyone expected and the question now is whether the government will attempt to expand “indecency” regulations to cover it, much as they are currently trying to do for cable and satellite television.
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Or so says some guy in an article on the latest bipartisan efforts to extend broadcast speech restrictions to cable and satellite TV. It’s up over at AFF’s Brainwash online mag.
Deep link.
According to this Reuters / Hollywood Reporter story, during an address Monday before the National Cable & Telecommunications Association annual conference in San Francisco, Rep. James Sensenbrenner (R-Wisconsin) told cable industry officials that criminal prosecution would be a more efficient way to enforce the indecency regulations. “I’d prefer using the criminal process rather than the regulatory process,” Sensenbrenner told the crowd.
Sensenbrenner apparently said he believes the FCC’s current regulatory process casts too wide a net and that criminal enforcement provides a more efficient solution. “People who are in flagrant disregard should face a criminal process rather than a regulator process,” he said. “That is the way to go. Aim the cannon specifically at the people committing the offenses, rather than the blunderbuss approach that gets the good actors.” He continued, “The people who are trying to do the right thing end up being penalized the same way as the people who are doing the wrong thing.”
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[[cross-posted from PFF Blog]]
Legislators and congressional staff were doing lot of huffing and puffing about the cable industry “cleaning up its act” at the NCTA trade show out in San Fran this week. Senate Commerce Committee Chairman Ted Stevens (R-Alaska) was once again leading the crusade for expanding content controls to subscription-based media like cable and satellite TV. Some, like Stevens, favor direct censorship of cable and satellite along the lines of what we already apply to broadcasters. Others favor mandating (or at least strongly encouraging) more parental screening / filtering technologies.
On this latter point, the comment coming out of the event that I found most interesting was from Colin Crowell, an aide to Rep. Ed Markey (D-MA). Crowell argued that “If the industry promoted these parental controls in the same way it promoted a new show, you’d have a consumer acceptance of those technological tools.” In other words, if you mandate it (more parental empowerment tools), they will come (and use them to filter / screen content). Well, maybe. Or maybe not.
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“[T]he Scarcity Rationale for regulating traditional broadcasting is no longer valid.” So begins a stunning new white paper from the Federal Communications Commission. In the paper, “The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed,” author John Beresford, an attorney with the FCC’s Media Bureau, lays out a devistating case against the Scarcity Rationale, which has governed spectrum & broadcast regulation in the United States for over seven decades.
Calling the Scarcity Rationale “outmoded” and “based on fundamental misunderstandings of physics and economics,” Beresford goes on to show why just about everything the FCC every justified on this basis was misguided and unjust. He points out what countless economists have concluded through the years, namely that:
(1) the scarcity the government complained of was “largely the result of decisions by government, not an unvoidable fact of nature.” In other words, the government’s licensing process created artificial scarcity.
(2) a system of exclusive rights would have ensured more efficient allocation of wireless resources.
(3) even if there ever was anything to the Scarcity Doctrine, there certainly isn’t today in our world of information abundance.
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[[cross-posted from PFF Blog ]]
Should “South Park” be censored? What about “Nip/Tuck?” How about “The Shield?” If some members of Congress have their way, these cable shows (or the stations that air them) might soon be subjected to the FCC’s indecency regime.
Recently, the respective chairmen of the Senate and House Commerce Committees, Sen. Ted Stevens (R-Alaska) and Rep. Joe Barton (R-TX), both reiterated their support for applying indecency regulations to at least cable and satellite channels on the basic tier.
In the last session of Congress, an attempt to impose indecency regs on basic cable was narrowly defeated by a 12-11 vote of the Senate Commerce Committee. Importantly, Sen. Stevens voted against the proposal then, but he’s obviously ready to switch his vote now. And FCC Commissioner Kevin Martin, the next likely chairman of the agency, has repeatedly expressed support for a “comprehensive solution” to this issue as more people migrate to cable and satellite TV. “I am sympathetic to the many people asking why our indecency regulations apply only to broadcast,” he told members of Congress during a hearing last year.
And, just yesterday, Sen. John Rockefeller (D-WV) and Sen. Kay Bailey Hutchison (R-TX) dropped a new bill, “The Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005,” which says that “Broadcast television, cable television and video programming are uniquely pervasive presences in the lives of all American children; and readily available to all American children.” Their bill goes on to propose the application of traditional broadcast controls to subscription-based media and would also mandate FCC controls on “excessively violent programming” during the hours that children might constitute a substantial portion of the viewing audience. (No word yet on whether “video programming” would also include DVDs, the Internet, or mobile content).
So, it appears that Congress and the FCC are ready to open this regulatory Pandora’s Box and begin censoring subscription-based media. There are three things I find very troubling about all of this:
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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.