TV Has Grown Up. Shouldn't FCC Rules?

This scarcity theory has always lacked substance. Nobel Prize-winning economist Ronald Coase's reputation is based, in part, on a notable paper he wrote in 1959 that criticized the rationale behind the FCC's command and control regime of licensing broadcasters. "It is a commonplace of economics that almost all resources in the economic system (and not simply radio and television frequencies) are limited in amount and scarce, in that people would like to use more than exists," Coase argued in his seminal essay.

But now technology has created new electromagnetic spectrum. Higher wavelengths than those used by traditional radio and television systems have been pressed into service for digital cellular telephones, wireless data connections, and satellite television and radios. The XM and Sirius satellite radio companies each offer hundreds of channels with less spectrum than all FM radio broadcasters combined. And cellular carriers now pack thousands of conversations on a channel that once served a single voice conversation.

Nonetheless, "scarcity" remains the foundation of a bifurcated jurisprudence. Newspapers, magazines, books and the Internet enjoy expansive First Amendment protections. Radio and broadcast television, defined as "public" properties, do not.

The Supreme Court accepted the scarcity theory in a 1943 case, when it upheld the FCC's power to grant or deny privileges to electronic speakers. In 1969, the court went further, ruling in Red Lion v. FCC that scarcity required a Pennsylvania radio station to give free reply time to an author whose book was criticized over the air. Thus, the "fairness doctrine" was affirmed.

Then came the famous "seven dirty words" -- comedian George Carlin's 1973 satiric monologue about the seven words, as he put it, that "you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever." Except that the defiant and mischievous Carlin did say them on the radio -- over and over and over again.

A father who heard the monologue in his car -- with his young son along for the ride -- complained to the FCC, which sanctioned the Pacifica station that carried Carlin's monologue. In 1978, the Supreme Court said the monologue wasn't obscene, but that it was "patently offensive." The court ruled in FCC v. Pacifica that the pervasiveness of broadcasting, and its easy accessibility to children, justified the FCC's authority to impose indecency limitations.

I don't want my 4-year-old son to see crude or provocative shows when he turns on our television. I also don't want him to see such material when he turns on our Internet-connected computer. Yet it would be impractical, as well as unconstitutional, for the government to set itself as the censor of cable, satellite and Internet content. It makes more much sense for consumers to determine what comes into their homes.

The technology exists for us to be masters of convergence -- whether it's a V-chip, or Internet and movie filters, or a blocking device that keeps out cable and satellite channels that we don't want to see. And, of course, it doesn't require technology to talk with our kids about viewing standards.

Within the next decade it will be impossible to distinguish between televisions and computers. More cable, satellite and high-speed broadband means that it is only a matter of time before all Americans get television over the Internet -- wirelessly or through a pipe of fiber or copper. It's time to recognize that Congress and the FCC can no longer be the nation's "public interest" nanny. Instead of trying to preserve rules from a world that no longer exists, they would do better to encourage the development of tools that will let us regulate ourselves.

Author's e-mail:

drew@drewclark.com

Drew Clark is senior writer for National Journal's Technology Daily. He covers the politics of telecommunications, media and technology.