April 05, 2004

The Speech Powell Should Have Given on Indecency

Last week, I wrote an annotated version of two recent speeches, one by FCC Chairman Michael Powell and the other by Commissioner Michael Copps, in which they addressed (behind closed doors) the National Association of Broadcasters regarding indecency regulation (FCC Commissioners - No Free Speech Please, We're Americans). Frequent commentator Cypherpunk thinks that I was overly harsh with regard to Michael Powell, who formerly was a strong defender of freedom of speech in broadcasting (Too Rough on Powell).

Rather than simply rebut Cypherpunk, I've adapted Powell's speech to give my version of what he should have said at the NAB meeting.

The original speech is here:
Remarks of FCC Chairman Michael Powell at the NAB Summit on Responsible Programming, The Renaissance Hotel, Washington D.C., March 31, 2004 [PDF].

Read on for my revised version.

Posted by Ernest at 11:20 AM

Remarks that
FCC Chairman Michael Powell
Should Have Given
(According to Ernie Miller)
At the
NAB Summit on Responsible Programming
The Renaissance Hotel
Washington D.C.
March 31, 2004

Good Afternoon. Thank you Eddie for that kind introduction. I applaud you and your members for holding this summit and candidly exploring these issues that have lit up Washington - - - and indeed America - - - as of late.

These are challenging times for the broadcast industry.

For one, we are coming off an explosive debate about media ownership. The heated rhetoric often far exceeded the facts, but in any event, it created a very hostile climate for the media industry that will likely have lasting consequences. Of particular significance, and concern, is that the debate re-energized the previously fading debate about the role of government in content—whether it be restricting offensive content, or promoting favored content and viewpoints. I am greatly concerned that many have expressed increased comfort with governmental content intrusion in the furious debate about broadcast indecency and excessive violence.

While the broadcast medium does not today enjoy the full breadth of the First Amendment privilege, we should never be comfortable with content intrusion by the government.

In addition, the competitive pressures from other media sources continue to dramatically fragment audiences while the growing convergence of technology is evaporating any meaningful distinctions among distribution mediums. Competition continues to grow stronger from cable and satellite, but we are also seeing the use of advanced technology to create many other platforms that folks turn to for entertainment, information and news --- and the distinctions between these mediums and broadcast will grow increasingly blurred. Perhaps more importantly, competition is coming not only from traditional and not-so-traditional media sources, but also from what have naively been called “consumers,” who are increasingly becoming creators and participants in “citizens’ media.”

The rise of satellite radio, the Internet, video gaming, TiVo, and, of course, citizens’ media, all have combined to present sharp threats to traditional broadcasting, but also new opportunities for broadcast innovation, promoting free expression, and citizen empowerment.

But this competitive pressure also has unfortunate consequences as well. Indeed, I am of the view that it is this competitive pressure, much more than consolidation, which accounts for much of the programming that tests the limits of indecency and violence. As audience continues to fragment and the number of choices multiplies, it is harder and harder to grab and hold a viewer or listener, so the less innovative and creative resort to programming meant to gain attention through shock and titillation.

But it would be a mistake to think that all programming that tested the limits of indecency was merely meant to shock and titillate. Our history is replete with works, once thought beyond the bounds of decency, which have ultimately been recognized as important works of merit.

It is for this reason that the indecency laws, which are not new, periodically create a furor as each generation revisits their enforcement. For 77 years, Congress has had a statute that prohibits any obscene, indecent, or profane utterance over the airwaves. Yet, seventy-seven years later, what is seen as commonplace today would certainly have shocked the conscience of the Congress that originally passed the statute.

The FCC has always enforced these laws with varying success, in great part due to the ever-changing standards upon which we must base our judgments. In some periods, the FCC has been fairly light in its enforcement and in other years comparably heavy. I have seen both. I have argued passionately that we should have no such laws out of respect for the First Amendment, and others have argued with equal gumption that we should draw even more stringent limits. Such forces have always buffeted the FCC’s enforcement efforts --- or content intrusion generally for that matter --- and they always will.

These are always very difficult decisions. It is very hard to balance and reconcile our shifting moral and cultural values on one hand, and the enormous value we place on speech free from government intrusion on the other. At the margins this is quite difficult and the FCC has, in view of the emphatically narrow scope of our censorious power, generally been cautious.

However, as in every periodic furor, we are talking about speech or conduct that many Americans believe has clearly crossed that margin and has set off the current powder keg in the country. We see increasing - - - I might even say escalating - - - complaints from many Americans because increasingly it seems to these citizens that the media is not playing close to the line, but is outright leaping past the line and in fact daring the audience and daring the government to do anything about it.

Some of the transcripts I have been forced to read reveal content that is pure trash, plain and simple. But I always remind myself that the history of free expression in this country is one of vindication involving speech that many citizens have found shabby, offensive, and pure trash, plain and simple.

I think it is important, moreover, to understand what many Americans are actually upset about. The Super Bowl incident and the debate it unleashed is not really about a bare breast. It is not whether our society can accept public displays of the human body. It can. What really upset some people was the shock and amazement that such material would appear on that program at that time.

In other words, the debate is not best understood as one about what you can do or cannot do on radio or television. Rather, it is more about whether consumers can rely on reasonable expectations about the range of what they will see on a given program at a given time.

It is not Janet’s nudity that is decried. It is the fact that “it was the Super Bowl!” the largest prime television event of the year. It was promoted as an event for friends and family, but clearly much of the material was inappropriate for many Americans. Moreover, it was not simply Janet’s performance that was classless, crass and deplorable. Many of the commercial advertisements were just as crude, if not more so.

I cannot say that people would necessarily have been any less shocked with the supposedly family friendly Super Bowl had it been available only on cable rather than broadcast. But I do know that people do not like the sense that they have no safe expectation of what they might see or hear during a given program, whether broadcast, cable or DVD.

Like other media, people rely on a program’s or a network’s reputation to determine whether future programs will be appropriate for themselves or their family. This past Super Bowl CBS and the NFL broke faith with many in their audience in terms of expectations. Consequently, many responsible viewers will no longer view or permit their children to view CBS’ sportscasts of NFL games. Like any publishers who have betrayed their audience’s expectations, it will be CBS’ and the NFL’s tasks to earn back their viewer’s trust.

A station broadcasts a variety of fare during the day, and is limited by day parts. Over time, consumers came to expect and arrange their viewing choices around programming at certain times --- the morning shows, afternoon soaps and talk shows, primetime, and late night have had special meaning in broadcasting, unlike in other media. But these expectations are changing. Citizens, no longer simply consumers, are using devices such as TiVo to arrange their viewing choices to suit their convenience. They may watch their soaps in the evening and late night programming in the morning before work.

In the past, given the free over the air nature of the medium and limited viewing choices --- not least limited by the FCC itself --- consumers did not have the opportunity to express much in the way of prior consent to receive certain sounds and images. But today, with a wide range of viewing options, from cable to satellite, from DVD to DivX, consumers are expressing more and greater prior consent than ever before. As I’ve said before, most Americans are willing to bring TVs into their living rooms with no illusion as to what they will get when they turn them on.

The First Amendment is cherished, but it bends only for you among media services. The Supreme Court and countless legal decisions create a special exception that allows government to demand more from broadcasting.

However, due to many of the changes I have already spoken of, the justifications for that exception are under increasing attack. Eventually, the time will come when we will have a single standard of First Amendment analysis that recognizes the reality of the media marketplace and respects the intelligence of American citizens. We must prepare for that eventuality by giving citizens greater ability to take on the responsibilities this will entail.

Consequently, I am announcing a new program that will put increased power to make informed choices into the hands of citizens and parents. I am going to strongly encourage broadcasters to freely provide much more electronic metadata about their programming in order for citizens to be able to make better-informed choices.

I am not talking about the V-Chip and a ratings system, which are limited in their usefulness. I am speaking merely of robust information from broadcasters that will clearly identify their programming and its origins.

With such rich information in electronic format, third parties will be able to easily create the tools for parents and citizens to receive only those sounds and images they feel appropriate. Parents will be able to download annotated and sanctioned programming guides from groups they trust and, for example, program their TiVo accordingly. Even for those without TiVo, third-party systems could easily control access to television with much finer distinctions than the V-Chip, channel blockers, or FCC rulings are capable of making. For example, parents would be able to allow their children to watch sporting events, such as football, without having to worry about their children being exposed to alcohol ads.

It must be recalled that the FCC’s ability to regulate only extends as far as the patently or grossly offensive to community standards for the broadcast medium. We cannot levy fines against that which is only mildly offensive, or offensive only to one community’s standards. Furthermore, the FCC can only act long after the fact, as the process for determining fines is an extended one, not least because we must carefully balance important values.

But the availability of robust electronic metadata and programming guides will give citizens the ability to give their informed consent prior to receiving broadcast images and sounds. The viewers, as in any other medium, will discipline broadcasters who violate this trust. Both broadcaster and citizen will benefit. Citizens will benefit from being able to exclude that which offends them, while broadcasters will know that those viewing programs do so willingly.

This industry has always had a proud tradition of serving the public interest and has always relished that honor --- wearing it right out on your sleeve. This is a public-spirited medium that prides itself on delivering the news, weather, traffic, and critical information in an emergency, such as the Amber Alert and the countless contributions you make to your local community. Robust electronic metadata is just one more step in providing timely information in your communities’ interest.

In this vein, I want to strongly encourage you to develop and adopt a voluntary and robust metadata standard that will empower your viewers, the American people, to make informed decisions as to the content they view. I believe you can create such a standard and that you and your audience would benefit from you doing so.

The FCC will continue to enforce prohibitions on broadcasting obscene, indecent and profane material, not least because the law says so. But such enforcement alone will not be enough to meet the increased expectations of citizens to protect themselves and their family from inappropriate material. That is why I have proposed a program to give them even greater power to deny or permit broadcast programs into their homes.

As I once concluded a speech on the First Amendment several years ago: “We should think twice before allowing the government the discretion to filter information to us as they see fit, for the King always takes his ransom.” Let us, instead, give citizens the power to filter information as they see fit.

Thank you.

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