Denise Howell, of Bag and Baggage fame, is at the Always On Conference in Stanford and blogging reports, including a panel chat with FCC Chairman Michael Powell (Chat With Michael Powell). C|Net News also has a report (Powell calls for legislative rethink). The chat covered a wide variety of topics, but I'm going to concentrate on the one I've been following most closely recently: the FCC's indecency crackdown.
Once again, in defending the FCC's indecency regulation, Powell retreated into his coverup position that he is only enforcing a law Congress passed and the Supreme Court has said was constitutional. This is a non-response to what the FCC has been up to recently in the indecency arena.
Item number one is why did the FCC revive the profane language doctrine (FCC Revives Notion of the Profane)? The FCC had never enforced the profane langugage doctrine before this year. Why, suddenly, did the FCC decide to revive a "profane language" test from a single federal circuit decision written in 1972? That's not regrettable enforcement. That's an aggressive attack on freedom of expression. Since then, the FCC has inconsistently cited the profane language doctrine, meaning it will remain as vague and dangerous to free speech as ever (Where's the Profanity? and FCC to Require Broadcasters to Retain Copies of Broadcasts for 60-90 Days).
Item number two is Powell's continued mantra that "The notion that the first amendment changes when you change channels is odd. And I'm troubled that it's more than odd, it's dangerous." Well, yes, it is an odd and dangerous notion. But note what Powell does not do. Powell does not say which side he comes down on. Should broadcast be free of indecency regulation as cable is, or should cable be subject to the same indecency regulation that broadcast is? In the context of defending indecency regulation of broadcast, Powell is implicitly calling for indecency regulation of cable. That is what the true danger is.
Item number three is Powell's claim that indecency regulation is subjective and the views are different between Manhattan, NY and Butte, Montana. Unfortunately, the FCC has decided upon a national standard for indecency. They could have adopted a local standard for indecency, but they chose to go with a national standard. Perhaps, someone could have asked Powell if he preferred a lowest common denominator or highest common denominator standard for free speech? Should we have the indecency regulations preferred by New York or Utah?
Item number four is Powell's arguments that indecency regulation is determined by the number of complaints the FCC receives. Isn't Powell just a little concerned about this process? Should prosecutors decide what crimes to prosecute based on public complaints, or should the DA's office use their own discretion to decide? Yes, there have been an increasing number of complaints, but is that because the content of television has changed overnight (complaints skyrocketing in a single year) or because of an organized campaign by groups like the Parents Television Council? Doesn't Powell think we should be just a little skeptical when complaints have jumped from 111 in all of 2000 to 545,000 in the first quarter of 2004?
When will Powell have to answer any of the tough questions?