E-Mail This Article to a Friend Unlikely crusader (continued)

"From Powell’s perspective, those are two very different functions, but they’re both defined by Congress," says Werbach, who adds: "Michael Powell was never the radical-libertarian deregulator that people made him out to be, nor is he the great moralistic crusader that people make him out to be now." Werbach calls Powell "a really good guy who really means well. I don’t think he went to FCC thinking his crusade in life was to clean up broadcasting. Michael Powell’s problem much of the time is that he’s a better lawyer than he is a politician."

Fair enough. But there’s more than a little disingenuousness in the way Powell chooses to interpret his mandate to keep the airwaves nice and clean. For instance, in an interview in the December issue of the libertarian magazine Reason, Powell observed that the FCC does not go after violators on its own — rather, it acts in response to complaints. "Many people have tried to argue that we should be like the FBI on indecency and be affirmative, that we should go out and listen to television and radio. We don’t do that," Powell was quoted as saying. "We wait for the American people to complain, and then we act on complaints. What has happened in the period you’ve identified is indecency complaints have skyrocketed."

The problem with this is that "the American people" are not complaining. Yes, it’s true that, for whatever reason, there was an enormous public outcry over the Janet Jackson incident. But we recently learned that outcries over other eruptions of indecency have been manufactured entirely by a right-wing organization known as the Parents Television Council, headed by veteran conservative activist Brent Bozell. On December 6, the trade magazine Mediaweek reported that according to the FCC, complaints of indecency rose from fewer than 350 in both 2000 and 2001 to 14,000 in 2002, then to 240,000 in 2003, and to more than one million through October 2004 — an astronomical increase. But it turns out that 99.8 percent of indecency complaints in 2003 were filed by the Parents Television Council, and that percentage has risen to 99.9 percent this year if the Janet Jackson complaints are excluded. Mediaweek’s findings parallel those of Jeff Jarvis, a blogger and former critic for TV Guide.

Amazingly, Powell’s response is that organized pressure groups deserve respect, too. In a December 3 op-ed piece for the New York Times, Powell wrote, "Advocacy groups do generate many complaints, as our critics note, but that’s not unusual in today’s Internet world. We are very familiar with organized protests when it comes to media issues, but that fact does not minimize the merits of the groups’ concerns."

Undoubtedly it has not escaped Powell’s attention that the Parents Television Council is an active participant in the unusual liberal-conservative coalition that opposes his plans to deregulate ownership still further. Thus, as with the Democratic members of the FCC, Powell has found common ground with his former opponents, at the expense of a rational approach to free speech.

THE VERY TERM deregulation can serve to obfuscate what’s really at stake here. As the media scholar Robert McChesney, author of The Problem of the Media, has observed, allowing more and more broadcast outlets to fall into fewer and fewer corporate hands isn’t deregulation — it’s simply a different type of regulation. Broadcast television and radio could not exist without government regulation. It is the government that awards broadcast frequencies to corporations. And it is the government that protects those corporations by making sure no one else intrudes on those frequencies.

We have become so accustomed to the notion that the government may prevent us from seeing and hearing indecency that we have forgotten why this is so. The reason is an increasingly outmoded notion known as the scarcity rationale. The idea is that there are only so many broadcast frequencies to go around; therefore, since the 1920s, the government has regulated this scarce resource on behalf of the public, in part by requiring broadcasters to offer programming in the public interest. Over the past few decades, as the fairness doctrine and the equal-time provision have gone by the wayside, the rules against indecency remain as the last, vestigial reminder of what once was.

At the same time, most television programming has moved to cable and satellite (even most over-the-air broadcast channels are just more choices on the cable box), which are not subject to indecency regulations. For one thing, the scarcity rationale doesn’t prevail. For another, consumers must choose to purchase cable or satellite TV, and therefore do not need to be protected from what comes into their home as a consequence of that choice. Satellite radio is still in its early stages, but that promises to become a major carrier of unregulated programming as well. The FCC, and Powell himself, made some noises about trying to regulate cable and satellite programming earlier this year, although it has apparently backed down. But with an estimated 85 percent of households hooked up to cable or a satellite dish, the notion of continuing to regulate old-fashioned, over-the-air broadcasting looks increasingly foolish.

The irony is that if Powell were truly concerned about indecency, he wouldn’t be so quick to allow big media to get even bigger. Because according to media activists of varying political persuasions, media concentration itself has led to a lack of choice that, in turn, makes it attractive for corporations to fatten their bottom line with cheap, sleazy programming like Married by America, a favorite target of the moral crusaders.

"We used to have checks and balances that worked in terms of programming that was over the top, and that’s gone," says Jonathan Rintels, executive director of the Center for Creative Voices in Media, a Washington, DC–based public-interest group. In a recent piece for MediaChannel.org, Rintels and Peggy Charren, the founder of Action for Children’s Television, explained: "Independent program producers and independent locally-owned stations were once important restraints on the networks’ tendency to push objectionable programming to boost their ratings. But FCC ‘deregulation’ allowed media conglomerates to eliminate both independent producers and many locally-owned affiliates. The result is an increase in objectionable programming."

Or as Charren, who lives in Cambridge, told me separately, "If you combine money with more money, people are going to say, you know, this indecent stuff is a way to make money."

With the election now over, the chances are excellent that concerns over indecency will fade into the background. "It’s one of those issues that seem politically safe," says Robert Thompson, director of Syracuse University’s Center for the Study of Popular Television. "Like the anti-communist issue back in the ’40s and ’50s, most people were anti-communist. And it was an issue that a politician could latch onto and get an awful lot of traction with."

Of course, a lot of people’s lives were ruined over the anti-communist witch-hunts of the ’50s. Perhaps what will save people from falling victim to an anti-indecency witch-hunt is the knowledge that racy shows such as Desperate Housewives, as the New York Times’ Frank Rich has observed, are even more popular in such paradigms of red-state moral correctness as Oklahoma City and Kansas City than they are in decadent blue-state cities such as New York and Los Angeles. Let’s hope there’s only so much hypocrisy that even an anti-indecency crusade can accommodate.

This past June, the US Court of Appeals for the Third Circuit, in Philadelphia, ordered the FCC to reconsider its plan to deregulate media ownership. It was yet another setback for Michael Powell, a man who came into office with a technocrat’s vision, who sees regulation as part of the past, who’d rather talk about WiFi and voice-over Internet and digital television than about old-fashioned issues such as government regulation of content.

Trouble is, the first legacy Powell chose for himself slipped out of his grasp. The second — the great moral crusade — may not be the one he wanted. But it’s unquestionably the one with which he’s stuck.

Dan Kennedy can be reached at dkennedy[a]phx.com. Read his Media Log at BostonPhoenix.com.