We take our television viewing seriously here in the United States. The
average number of TV sets per household is 2.62, and 98.2% of all households
have at least one set. Adults watch at least five hours a day.
Our children are TV watchers, too. Average viewing among 2- to 5-year-olds
was three hours and 40 minutes during the 2004-05 season, according to Nielsen
Media Research. The Kaiser Family Foundation reported in 2003 that 36% of
children under 6 have a TV set in their bedrooms; that figure is 68% for those
8-18. “Sesame Street” has even launched a DVD series for babies.
Armed with more than half a century of experience with the color TV alone, as
well as a vast array of technology and tools to monitor, manipulate and manage
our viewing preferences, the vast majority of us believe we know how to handle
all those sets and all that programming responsibly. For example, 92% of parents
impose rules on TV watching for their children.
And we not only take our TV viewing seriously, we take it personally. Just
how personally is reflected in a new poll conducted by Russell Research.
The telephone survey of 501 registered voters, released late last week, finds
that 82% of us prefer to make up our own minds about what we watch, compared to
12% who think that the government should regulate those choices. The poll was
sponsored by TV Watch, an organization formed to educate the public about tools
available to parents and to oppose excessive government regulation of TV
The survey also showed that 87% of the respondents felt that the interests of
a few should not dictate programming for the rest. Yet there are many Americans
who feel strongly that the government must do something about what they consider
far too much indecency on television. When they complain to the Federal
Communications Commission, the regulatory agency can slap multi-million-dollar
fines on broadcasters.
That’s what happened on March 15 when the FCC issued notices of $4 million in
fines against broadcasters for what the five commissioners deemed to be indecent
words and images.
The heftiest of those fines, $3.6 million, was levied against CBS and 111
local television stations that carried an episode of “Without a Trace” on Dec.
31, 2004, that included a scene about a teen orgy.
The FCC also upheld an earlier determination that CBS should be fined
$550,000 for the 9/16-of-a-second exposure of singer Janet Jackson’s breast
during a Feb. 1, 2004, Super Bowl halftime performance.
A public broadcast station in San Mateo, Calif., was fined $15,000 for use of
the F-word and the S-word in “The Blues: Godfathers and Sons,” a documentary on
blues performers aired on March 11, 2004.
The notice statement makes it clear that obscuring objectionable images with pixelation won’t help.
These actions — in all, nine different broadcasts were fined — did not come
as a surprise. In his first year as FCC chairman, Kevin Martin has spoken out
strongly against indecency over the airwaves, met with religious and decency
activists and delivered repeated warnings to network executives.
Within the commission, in Congress and elsewhere, there is growing pressure
for increasing the fines for indecency, extending the regulatory reach to cable
and satellite, expanding regulation to news and sports programming, and giving
the FCC the authority to go after violence as well as indecency.
This pressure for more-aggressive regulation of broadcasters raises
significant First Amendment concerns for viewers as well as creators of TV
programming. The latest order exacerbates rather than clears up rules and
definitions that already were muddled. For example, the same words that brought
a fine to the documentary about blues performers were given a pass in the movie
“Saving Private Ryan.”
All this and much more makes the latest fines ripe for a court challenge.
Adam Thierer, a media-policy analyst at the Progress and Freedom Foundation,
a few of the reasons such a challenge could succeed. Among them:
The FCC’s policies on indecency are vague, convoluted and arbitrary.
The “scarcity” and “pervasiveness” regulatory rationales of the past — that
the broadcast spectrum is too scarce and that broadcast media come into the home
unbidden — are no longer relevant in today’s media environment.
Broadcasters are held to a different, more-stringent standard than cable or
satellite, even though the programming comes into the household over the same TV
Technological and other tools are readily available to parents who wish to
prevent their children from seeing or hearing what they dislike.
Even one FCC commissioner sees possible legal problems. In a statement
accompanying the latest FCC order, Jonathan S. Adelstein warns that the
commission “overreaches with its expansion of the scope of indecency and
profanity law. … This approach endangers the very authority we so delicately
retain to enforce broadcast decency rules.”
The millions of Americans who take their TV viewing seriously have a very
real stake in how all this plays out. For the decency activists, this is a
matter of values. For the regulators, it’s a matter of control. But for the
public, it’s a matter of choice and rights.
Viewers shouldn’t get too comfortable in front of their TV sets. Polls
reflect opinions but they don’t protect rights.
Paul K. McMasters is First Amendment ombudsman at the First Amendment
Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: firstname.lastname@example.org.