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The next great indecency threat
The religious right (and a few liberals) already have broadcasters on the run. Coming up: Cable, satellite, and — just possibly — the Internet.

THE GOVERNMENT’S war against what it calls "indecency" has taken a new and dangerous turn. Since the 1920s, regulators have imposed content restrictions under the theory that broadcasters have been licensed to use a scarce, publicly owned resource: the AM and FM frequencies used by radio stations, and the VHF and UHF bands that accommodate over-the-air TV channels. Rules that punish broadcasters for indecent content — whether it be Janet Jackson’s peep show at the Super Bowl, or Bono’s dropping an F-bomb during an awards ceremony — may strike many of us as puerile and unnecessary. But since broadcast frequencies are a finite asset, it at least makes some sense that the government, as the public’s representative, would have a say in how those frequencies are used.

But the media have changed. The so-called scarcity rationale, which has allowed the government to regulate everything from political speech to what words may not be spoken over the air when children might be listening, has gone the way of typewriters, phonograph records, and rabbit-ear antennas. Today, 85 percent of American households subscribe to cable or satellite TV. A small but growing number of folks have signed up for satellite radio. In this new media universe, there is no scarcity: hundreds of TV and radio stations ensure that just about every taste can be accommodated. At the same time, the broadband Internet is rapidly morphing into something that is both wireless and ubiquitous — meaning that, in just a few years, the number of potential video and audio programs available will theoretically be infinite.

Yet, rather than adjusting to this new technological reality by getting out of the way, government officials — members of Congress and the Federal Communications Commission, which oversees the broadcast industry — are threatening to sink their fangs into cable and satellite. And though such efforts would almost certainly amount to an unconstitutional violation of the First Amendment (see "Indecent Proposal," in News & Features), these would-be censors may well succeed in intimidating media conglomerates — which depend for their very existence on government favors ranging from relaxed ownership restrictions to the free use of the broadcast spectrum — into diluting their content, lest those favors be taken away. Indeed, the paradigm that pits over-the-air broadcasters against cable channels is itself an artificial one, given that the Big Four broadcast networks — CBS, ABC, NBC, and Fox — are part of media behemoths that control nearly all the most popular cable channels.

Performers who thought they’d gotten one step ahead of the censors by switching to cable and satellite services may be in for a rude surprise. Howard Stern, who will jump from broadcast radio to the Sirius satellite network next year, may find his old nemesis, the FCC, waiting for him before he can even unveil his new show. Controversial basic-cable fare such as South Park, MTV’s programs, or even The Daily Show, which liberally mixes smart media satire with penis jokes, could come under scrutiny as well.

For the moment, at least, programs that are on premium pay channels, such as The L Word and The Sopranos, are presumably safe from the government bluenoses. Not even the most puritanical of the indecency crusaders is talking about going after pay services. Rather, their focus is on basic cable and satellite channels, on the theory that people who want, say, Nickelodeon and Disney shouldn’t have to worry that their kids will stumble across Brigitte Nielsen and Flavor Flav pawing each other on VH1.

But if Showtime’s glamorous lesbians are in no danger of being censored today, that doesn’t mean they might not be targeted tomorrow. The censorship machine is insatiable, and each victory only makes it stronger. If recent history is any guide, the censors and those who are driving them — principally religious-right groups such as veteran conservative activist Brent Bozell’s Parents Television Council, which reportedly generates the vast majority of complaints received by the FCC — are fighting this battle in incremental steps. Jeff Chester, executive director of the Center for Digital Democracy, a media-access and anti-censorship organization based in Washington, DC, warns that even though the scarcity rationale may no longer apply, the fact that cable and satellite signals must travel through the public airwaves (cable systems pull signals off satellites in order to distribute programming to subscribers) may give would-be regulators the hook they need.

"Congress could potentially impose restrictive content legislation, certainly on basic cable and satellite-delivered channels, and perhaps even on these private pay-radio and -television channels," says Chester. "Because it is public airwaves, which the government controls, they may have a legal justification for it." He adds: "This is having a chilling effect all across the board."

GOVERNMENT’S assault on free speech on cable and satellite takes many forms. Here are three recent developments that show these efforts are widespread, bipartisan — and not going away anytime soon.

• Late last month, Republican senator Ted Stevens, of Alaska, who chairs the Senate Commerce, Science, and Transportation Committee, said an effort by the cable industry to increase public awareness of parental controls such as channel-blocking and the V-chip may not be enough to stave off efforts to regulate indecency on cable and satellite. According to Congressional Quarterly, Stevens said the cable industry will be begging for mercy once it becomes clear how far-reaching some of these regulatory proposals may be. "I think when they see some of the bills people are talking to me about, they’ll say, ‘What can we do?’" Stevens was quoted as saying. "There’s some bills coming that will make your hair curl." Perhaps even more ominous is a Stevens quote reported by the Associated Press: "In this country, there [have] to be some standards of decency."

• Democratic senator Ron Wyden, of Oregon, filed legislation earlier this month that would require cable and satellite operators to offer a "family friendly" tier of at least 15 channels or face a fine of $500,000 per day. Technology Daily reports that such a tier would be defined as "a group of channels that does not carry programming, advertisements or public service announcements that would be considered inappropriate for children due to obscene, indecent, profane, sexual, or gratuitous and excessively violent content." Such a law would be obviously unconstitutional if it were applied to the print media, which enjoy full First Amendment protections. (The exception would be "obscene" content, extremely hard-core pornography that is illegal to manufacture or distribute regardless of medium.) Thus, if the Wyden bill becomes law and is upheld by the courts, it would deal a heavy blow to the notion that non-broadcast media such as cable and satellite should be entitled to the same constitutional guarantees as print. "The key here is to guarantee that parents will have adequate viewing options for their kids without imposing federal regulation on all paid content provided on satellite and cable," Wyden was quoted as saying, ignoring the fact that his bill would do just that.

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Issue Date: May 13 - 19, 2005
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