This week’s Second Circuit decision in Fox v. FCC should make us question, yet again, why broadcast is special. Could any broadcast indecency regime pass constitutional muster? Why would you want an indecency regime at all? If you were running the Media Bureau, what would you recommend?
The reasons underlying Pacifica all seem to have vanished. Cable and the Internet are just as accessible and pervasive. Parents have many more tools than they used to that will help shield children (analogous to the household-by-household tools available to block particular cable channels).
The Second Circuit suggests that Pacifica should perhaps go away – so that content-related rules for broadcast can get the same strict scrutiny that rules for the Internet do. But it’s not in their power to wash away the decision, so instead the court focuses on the vagueness of the FCC regime: “Broadcasters are entitled to the same degree of clarity as other speakers, even if restrictions on their speech are subject to a lower level of scrutiny.”
Confronted with the court’s disparagement of the current incoherent FCC regime, what’s a good regulator to do? Retreat to the seven dirty words, and hold fast to them even if you feel silly and ineffective for doing it? Repeal the policy completely, relying on the good faith and earnestness of the broadcasters to protect children until 10pm, when the networks can start swearing again?
But if you blow up indecency regulation, does that have implications for the FCC’s general powers over broadcast? Does scarcity still dictate control over content? Or are we back to a naked assertion of power: We give you a license, so you have to listen to our rules on children’s television and equal time?
And if the naked assertion of power is all you have left, is the hammer of insisting on adhering to public interest obligations a useful negotiating lever any more? Is it enough (“you aren’t broadcasting local news!”) to persuade the broadcasters to give up their spectrum allocations over time – so that there’s more room for more wireless Internet access? It probably is, but would you want to risk it?
It’s enough to make you wonder whether it’s worth it for the FCC to ask the Supreme Court to review this case. The Commission may not like the answer that comes back. What is the extent of the public interest obligations of broadcasters? It may be limited to an agreement not to interfere, to spectrum allocation, and nothing more.