FCC regulation of airwaves unconstitutional
Published: Thursday, June 7th, 2007
The 2nd U.S. Circuit Court of Appeals in New York has correctly rebuked the Federal Communications Commission for arbitrarily changing its policy regarding the somewhat arcane topic of “fleeting expletives” on broadcast radio and television. The court did not believe it had to reach the underlying issue of the government’s power (or lack of it) under the Constitution to regulate content on the airwaves, but that might be coming. Briefly, during the 2002 Billboard Music Awards, singer Cher blurted out the f-word, as did celebrity Nicole Richie during the 2003 awards program. Despite some protests, the FCC decided at the time that these were instances of “fleeting expletives,” as opposed to scripted or repeated use of forbidden words, and did not require punishment of the Fox TV network, which had broadcast the shows. Then, after the infamous Janet Jackson bare-breast incident during the 2004 Super Bowl, the commission changed its policy and decided such incidents were punishable. (It didn’t fine Fox retroactively for the earlier fleeting expletives. The FCC did fine CBS for the Super Bowl incident, and CBS appealed. The case is set for oral argument in September before another federal appellate court.) Fox appealed the FCC’s new policy, and the court decided in its favor Monday. Its decision noted that President Bush and Vice President Cheney have used such words in public settings and suggested that better channel-blocking technologies for parents rather than regulations would be more appropriate ways to handle such incidents. The FCC could appeal this decision to the Supreme Court. It might be interesting to have the high court take this on and consider whether FCC regulation of the airwaves is constitutional. We would argue that radio and television are simply “the press” with new technologies and under the First Amendment should never have been subject to federal regulation at all. Now, given the multitude of channels available, the argument that government had to allocate access to the limited airwaves is weaker than ever. It’s time for public policy to keep up with technology.
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