Michael Powell and Choice

Congress and the Supreme Court have devoted decades to the regulation of indecent material delivered electronically. See, e.g., Ashcroft v. ACLU (2004) (Internet); United States v. Playboy Entertainment (2000) (cable television); Sable Comm., v. FCC (1989) (dial-a-porn). Recently, much of the focus has shifted to the Federal Communications Commission, which has cracked down and/or issued fines for events such as:

• Bono's use of the "f-word" during TV broadcast of the Golden Globe Awards in January 2003



• The "wardrobe malfunction" that exposed Janet Jackson's breast at last year's Superbowl halftime gala



• A "sexually suggestive" FOX TV reality show



• Various risqué skits and language on shock-jock Howard Stern's morning-drive radio program

FCC Chairman Michael Powell (son of the departing Secretary of State) has been widely seen as the inspiration for overly-moralistic regulation, by the electronic media, by newspapers, by bloggers and by the talented Jeff Jarvis, who's the nearest thing to all three combined in human form. Jarvis calls Chairman Powell a "National Nanny," and scored a major "got-ya!" by uncovering that the hundreds of consumer complaints cited by the Commission as evidence of public outrage were mostly identical form letters, suggesting a narrow and much less genuine listener concern.

I've a professional interest in the matter, which readers are welcome to consider, but I've never thought Powell was the problem. Certainly, he's under pressure--and the FCC is more about politics than law or engineering. Powell has defended himself before, and in my experience, he's been familiar with and respectful of First Amendment precedent. I've always believed that the villain was, at least in part, Supreme Court Justice Brennan's last opinion. That decision, Metro Broadcasting, Inc. v. FCC (1990), re-affirmed the government's augmented ability to regulate--censor--at least some electronic media, despite the clear language of Congress.

Chairman Powell himself provided more evidence today, in a speech at the annual Consumer Electronics Show in Las Vegas. As reported to me, Powell promised not to become "the V-chip" for new technologies (similar to his approach in the NY Times Op-Ed). During the Q&A, he was asked--apparently by a broadcaster--whether he would intervene to prohibit satellite radio providers (Sirius and XM) from transmitting salacious programming or local information, such as traffic and weather. (The NAB previously sought such a ruling, withdrawing its request only when it was about to lose.) Powell supposedly responded, "the most common request I hear from lobbyists is to save them, protect them, or kill their competitor. I'm not in that business. I'm in the business of expanding consumer choice."

I hope Powell's right. And, to the extent he's been equivocal, I hope he's made a new resolution. Which would make it a happy New Year indeed.

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Jeff Jarvis has a similar report.