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EDITORIAL COMMENT
April 2004

Indecency, priorities, regulators - and fairness?


Indecency, priorities, regulators - and fairness.

Having for two months now commented on US indecency regulations - and in the meantime seen more large fines with further yet penalties expected and until this week not a sign of a fight back from the broadcasters - we have decided to make it a hat trick this month.

First we would like to take up the issue of fairness. Here we have no time for the views of Federal Communications Commission chairman Michael K. Powell, who takes the stance that it there should not be specific guidelines as suggested by some broadcasters, notably Mel Karmazin of Viacom: "You do not want the government to write a 'red book' of what you can and cannot say", he commented.

We disagree totally and take the view that the US public is capable through its listening actions of making it clear what material, to use a regulator's phrase, is "patently offensive as measured by contemporary community broadcast standards are."

Let us for a moment, however, accept that Nanny Powell and his sisters Brent Bozell and others, rather than wishing to enforce their view of the world on all others are operating from a genuine concern that they think is overwhelmingly shared by members of the public who are simply too addicted to change their listening habits.

In that case it would seem to us that making the rules clear will allow proper debate as to whether or not their views are indeed those of the majority - but no! It would seem rather that Nanny P thinks putting down clearly what they are supposed to object to is just too much for the infantile citizens of the US.

Thus can Nanny and cohorts exercise power in an arbitrary manner without due debate and checks and potentially abuse that power.

We think in that context that George Carlin's separation of "tit" from the other six banned words in his Seven Banned Words skit regarding former FCC rules was a public service - it exposed the nonsense of the then rules to justified ridicule and is a useful pointer to the wider context within which indecency regulation should be considered.

Justice delayed is justice denied.


We also take the view that to impose massive fines a year after an offence when at the time it was committed no such penalty could have been expected is far too close to retrospective legislation to be acceptable in any reasonably law-abiding society.

We would accept that following due debate and a change in the law, even if we would wish to fight the change, there can be no ambiguity about the nature and scale of the penalties that can be imposed and to that extent their imposition is fair. Changing the law itself retrospectively should be totally unacceptable.

Changing the law itself retrospectively should be totally unacceptable.


Even worse than imposing much larger penalties than could have been expected is to issue a definition of what constitutes an offence and then, following a change in political climate, reverse a decision made by the relevant officials - in this case the FCC Enforcement Bureau - as was done in the Bono case.

We are pleased that the broadcasters have finally decided to object to this - as we are to see Viacom still refusing to pay the penalty the FCC is demanding in the Opie and Anthony case.

As we have already commented, we sincerely hope the courts excoriate the FCC Commissioners and take the view that the only honourable thing the commissioners could do in such a situation would be to resign: Ideally they'd be thrown out as unfit to be in their posts.

Pettifogging and real obscenities.


Just as Carlin drew a distinction between tit and the other words, we'd draw a distinction between the importance of the upset that is likely to be caused by overhearing a few "dirty words" and the trauma to real victims of real violence, not forgetting that rape as well as murder featured prominently in recent conflicts such as those in the former Yugoslavia and Rwanda.

Although our instincts are not to curb political comment, the experience in these countries indicates that at times this may be reasonable in view of the potential effects of rabble-rousing broadcasts: The question is whether this should be done in the context of broadcasting regulation or general laws relating to incitement.

As we've thought more about it, it seems to us that in the context of a moral consideration of real events and responsibilities in the real world many people supported by those like L. Brent Bozell III are far more immoral and obscene than the Howard Sterns and even Bubbas of this world, despite his notorious wild boar castration and killing stunt.

So what about tuning away or using the off switch?


The obvious advice to those tuning accidentally into a shock jock- as opposed to the Super Bowl, which after all is a one-off annual occasion of a particular general appeal - is that they can speedily tune to another channel or switch off: The question this begs is that of how far a society should in fact enforce some standards of behaviour in public, as opposed to private places, since in a sense the advice in principle is the same as telling those who object to fornication, say in a public library, that they should avert their gaze and maybe muffle their ears.

It comes down in both cases it would seem to us to a matter of balancing pros and cons - in the library case we would argue that the balance of greater good or least inconvenience to the largest number clearly lies in favour of those using the library for the purpose for which it was designed and that those who wish to fornicate should find locations more suitable for that purpose.

When it comes to the shock jock, the argument is less simple, but there is still a balance to be struck and the balance should clearly be different for subscription and free to air services.

Is there a case for broadcast indecency regulations in today's world?


The obvious advice to those tuning accidentally into a shock jock- as opposed to the Super Bowl, which after all is a one-off annual occasion of a particular general appeal - is that they can speedily tune to another channel or switch off: The question this begs is that of how far a society should in fact enforce some standards of behaviour in public, as opposed to private places, since in a sense the advice in principle is the same as telling those who object to fornication, say in a public library, that they should avert their gaze and maybe muffle their ears.

It comes down in both cases it would seem to us to a matter of balancing pros and cons - in the library case we would argue that the balance of greater good or least inconvenience to the largest number clearly lies in favour of those using the library for the purpose for which it was designed and that those who wish to fornicate should find locations more suitable for that purpose.

When it comes to the shock jock, the argument is less simple, but in general we'd take the view that the balance between allowing a substantial audience to listen to what they want and the problems caused to a few people who tune in momentarily to a strange station and are offended will go against the latter in most circumstances and the others are ones that should be defined clearly not vaguely with regular updating if need be as mores change.

Subscription and Internet services.


We are concerned that in their current puritanical mode legislators will try to extend to these services limitations applying to free-to -air broadcasts but when it's a matter of choice consciously made before being able to listen, as in subscription services, we're firmly of the belief that the only area that should be regulated relates to material that in some way breaches normal laws as with incitement to violence or hatred. If it's just a matter of someone being upset by what they feel is offensive to dirty talk, they should be told firmly that they needn't subscribe and then ignored.
That's what the First Amendment is all about and we trust the courts would take the view that the regulators have no business sticking their noses into controls of satellite or Internet radio.

What we would accept here - and also for free-to-air radio as digital is introduced allowing more sophisticated warnings - is that it might be reasonable to expect warnings via text or other visual displays of the kind of material that could be coming up. It would be overkill in our view but digital services could also certainly be configured to allow something similar to the V-chip to be installed so that services outside a range can be programmed out of a receiver's capability.

We doubt many would use it, but including the codes in a broadcast would not be that expensive and we're sure that if there is indeed substantial support for the idea there'd be manufacturers willing to make receivers with the capability for those who want to pay for it.

Conclusions on the basis for regulation of terrestrial broadcasts.


We feel the operating principle should be to apply limitations primarily on the basis of programming that could lead people, even if only a small minority of them, to actions that abuse children or the vulnerable but assume that adults can behave like adults in most circumstances and react accordingly.

In a sense this is already recognized through the use of watersheds - allowing certain programming only after children are not thought to be likely to listen, a practice that, if thought through, undercuts many of the comments currently coming from the US: The question here in our view is how far the call for bans on material relates to embarrassment for adults when they are asked questions and how far it relates to genuine concern for children.

We would suggest that the evidence there is suggests that far more harm is done to children through the effects of much advertising and promotions, such as, for example including gifts with junk food and indeed the general effects of advertising directed at those too young to be able to make sound judgments.

The best constraints for terrestrial broadcasts.


In the absence of any such technological fix the market seems to us to be the best constraint system for commercial broadcasters: The very fact of having to attract audience and advertisers and keep them are in our view constraints enough to keep most broadcasts within levels acceptable to the community to which they broadcast.

What should be done?


We come to a few simple conclusions:

1: Enforcement as with all laws needs to be consistent both as to what is an offence and the penalties involved. Hence the courts should tell the FCC that it has to set down clear rules that are acceptable legally as regards indecency offences.

2: Timely rulings are essential to a fair system. In this regard, the FCC should insist, as do most countries on recordings being kept of all programming - it need not be of broadcast quality as it is content not frequency range that is the issue - so that facts can be ascertained speedily. If broadcasters themselves are unwilling to do this, the FCC should be directed to set up appropriate recordings systems round the country and the broadcasters through licence fees billed for the cost.
Linked to this should be a timetable for complaints to be made - say a maximum 30 days after a broadcast, thus meaning recordings only have to be kept for 35 days or so. Following this a maximum period should be set within which a notice of apparent violation must be issued - we'd suggest 60 days. Thus, unless there is an appeal, no ruling will be accepted more than 90 days after an offence.

3: Any regulations that are to be made should not pay significant heed to simple embarrassment of adults but should be primarily directed to programming that could lead people, even if only a small minority of them, to actions that abuse children or the vulnerable.



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