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Look for ’08 to be year of broadcast-regulation battles
Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

Television has been called everything from a “boob tube” and “vast wasteland” to one of the most significant developments in the history of mankind.

But as we move into 2008, the messages and images that TV brings are a battleground. In that fight, we likely will redefine what the government can regulate regarding what we see and hear, not just on television but also across a host of new media and devices.

At the epicenter is the Federal Communications Commission — a federal agency created in 1934 in response to the then-new medium of radio. The FCC’s reach goes well beyond TV and radio today, including virtually all wireless devices from PDAs to automobile and garage-door remote controls that use radio signals.

But it’s the agency’s involvement with broadcasters, and its potential involvement with cable, satellite and even newer electronic means of bringing us information, that’s got Congress, special-interest groups, parents and the First Amendment community either holding their collective breath or exercising a good deal of free speech, assembly and petition.

Here’s what to look for next year as the FCC with its three Republican and two Democratic commissioners tackle various issues:

  • Sex and profanity: Will the commission, reenergized after the infamous Janet Jackson incident, continue its stepped-up pursuit of radio and television stations, owners and personalities over broadcasts of material that stops short of obscenity but that the FCC deems indecent? Or will courts put the brakes on this new move that critics say is overwrought, unneeded and ineffective?

  • Violence: Will the FCC strike out in a new direction, as some said it is entitled to do and some in Congress have asked it to do, and move to regulate violent images and actions on broadcasts? Or will the issue prove — as some contend — just too complex for coherent regulation?

  • New media: The FCC’s ability to control program content now is limited largely to radio and television, which use publicly owned airwaves. But as direct broadcast satellite, cable TV and even program-delivery-by-phone-line become common, will Congress heed increasing calls to expand the FCC’s authority to recognize that these new media are as pervasive in society as older media?

A fourth area of controversy, media ownership, touches most directly on the First Amendment goal of a marketplace of ideas — in this instance, a multiplicity of electronic information sources for citizens.

On Dec. 18, the FCC voted 3-2 to overturn a 32-year ban and permit broadcasters in the nation’s top 20 markets also to own a newspaper under certain conditions. It’s such cross-ownership that will most likely be the earliest controversy in 2008.

Some contend that combining financially lagging newspapers and broadcasters will create new enterprises with more reporting resources, or that limits are outmoded in an era of Internet and other new-media technologies. Critics say merged media will cut local news staffs and have even less incentive to be innovative. Commissioner Michael Copps, a Democrat, wrote immediately after the party-line vote that “today’s decision would make George Orwell proud. We claim to be giving the news media a shot in the arm — but the real effect is to reduce total newsgathering.”

Then there are those in the First Amendment community who say the government has no business regulating media ownership regardless of the economic or newsgathering impact.

The FCC first tried to loosen the cross-ownership ban in 2003, but was blocked by the 3rd U.S. Circuit Court of Appeals. That same year, a First Amendment Center national survey found respondents divided on whether or not consolidated ownership reduces available viewpoints or the quality of news reports.

The FCC’s issue agenda for the coming year reads a bit like an ad for a TV soap opera: Will “Big Media” win out? Can the FCC muzzle violent programming? Must cable TV and satellite TV and radio come under the same rules as their broadcast brethren?

Interested? Stay tuned.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: E-mail:


FCC votes to allow big-city broadcasters to own newspapers

Lifted ban would still require that after any transaction, at least eight independently owned-and-operated media voices remain in market. 12.18.07

Lawmakers seek to overturn new FCC media-ownership rule
Bipartisan group of senators introduce resolution to stop agency from implementing regulations, saying move would leave consumers with fewer choices. 03.06.08

Supreme Court takes broadcast-indecency case
First such case in 30 years concerns FCC policy allowing fines against broadcasters for 'fleeting expletives' on their programs. 03.17.08

Fox appeals $91,000 indecency fine for reality show
Spokesman says broadcaster believes FCC's decision to penalize stations that aired 'Married by America' episode was 'patently unconstitutional.' 03.25.08

Justice Department sues to collect indecency fines from Fox
Action follows FCC's move to return 'without consideration' appeal of decision that broadcasting company called 'arbitrary and capricious.' 04.07.08

Senate panel votes to nullify new media-ownership rule
Despite promises of veto, Commerce Committee OKs resolution that would roll back FCC rule allowing media companies to own newspaper, TV station in same market. 04.25.08

Senate votes to roll back FCC media-ownership policy
Bush administration official says he’ll recommend the president veto the bill if House approves nullification of agency's new rule. 05.16.08

Indecency regulation: beyond broadcast?
By David L. Hudson Jr. Currently FCC can't restrict indecent content on cable or satellite services — but some would like to change that. 12.05.07

Justices to examine 'fleeting' expletives
By Tony Mauro Court agrees to review latest version of 30-year-old FCC rules against backdrop of vastly different media landscape. 03.18.08

Technology is transforming what we mean by free expression
By Gene Policinski Era of ' First Amendment 3.0' requires us to consider old issues in new ways. 12.28.08

2003 State of the First Amendment report

The FCC's Regulation of Indecency

Analysis/Commentary summary page
View the latest analysis and commentary throughout the First Amendment Center Online.

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