if we can't have it, no one can

Thursday, April 08, 2004, at 11:19AM

By Eric Richardson

I'm sitting in the big room at Doheny Library right now, doing research for an upcoming paper. It's supposed to be a position paper, so mine's going to be addressed to Congress reminding them of all the reasons that cable and satellite (and the Internet) deserve the full first-ammendment protections awarded to print rather than the watered down rights given to broadcasters.


On March 8, 2004, TelevisionWeek had an article titled "Barton Targeting Cable, Satellite." It talked about how Representative Joe Barton, R-Texas, was looking for some action from the cable and satellite people to curb violence and indecency. Here's my favorite part:

But the measure applies only to broadcasters. Cable and satellite are exempt from the indecency regulations, and that's a problem for Rep. Barton.

During hearings late last month, Rep. Barton voiced concerns that a unilateral crackdown on broadcast indecency might simply "move the more objectionable material to satellite and cable."

At the hearings, the concept of extending the crackdown to cable and satellite got enthusiastic reviews from several broadcast network TV executives at the witness table.

"It's indispensable that everybody who provides the content be a participant," said Alan Wurtzel, president, NBC research and media development.

First off, the concern he voices is exactly what I was hoping for last month. But that's not what I found funny. What's funny is that broadcast execs were "enthusiastic" about applying censorship rules to cable/satellite. You better believe they would be... The networks see what HBO's doing and they hate the fact that they can't do the same. So what's the solution? Take freedom away from everyone equally.

In the same article:

Cable's programming has not been regulated for indecency, partly on the argument that it is a subscription medium that consumers invite into their homes. That position has generally been upheld by the federal courts, which have given cable more First Amendment protection than they have given broadcasters.

Broadcasting, on the other hand, has traditionally been regulated for programming content because the Federal Communications Commission licenses broadcasters to use the public spectrum to deliver their shows to consumers' homes.

Bud Paxson, chairman and CEO of Paxson Communications, argued at the hearings that cable and satellite should be subject to the same regulations that broadcasters are because they also send certain signals over the public airwaves using microwave frequencies licensed by the FCC-an argument he said is being formalized for the broadcast industry by a law firm.

"Because cable and satellite use the same airwaves, they should have the same responsibilities," Mr. Paxson said.

Wow. Now, I'm not going to get into all the specifics of Supreme Court decisions and doctrines here right now (that's for the paper), but let's just think about this for a second... Broadcast was initially regulated because of the doctrine of scarcity -- there was only so much spectrum, and the government needed to carefully portion it out to make sure that all aspects of society got represented. Scarcity doesn't hold a lot of water these days when you look at cable TV and see people getting 300 channels. But that's the basis of how the FCC came into being.

Indecency on broadcast was regulated because, since broadcast media came into the home/car/wherever on public airwaves, there existed the possibility that a kid could just turn on the radio/tv and get exposed to indecency. The parents presumably didn't have any way to control this, since the broadcasts were freely accessible by anyone with the proper, easily available, equipment.

But then cable came along, and you had to actually subscribe to receive the signals. The Court said (and I'm paraphrasing here), "hey, if you're paying to bring this content into your house, that's your choice. it's not freely available over the public spectrum, so the same indecency rules don't apply." That makes sense.

Now that the rules have changed and pretty much everybody is getting their content via some type of pay-access, the FCC and Congress are a little bit unhappy. All of a sudden their control only applies to seven or so of the 300 channels people are getting. And the broadcasters are pissed because they don't get to do the cool stuff, like we talked about above.

But that doesn't give anyone license to change the rules of the game. Here's the part of that quote above that almost made me laugh, until I realized they were serious:

Bud Paxson, chairman and CEO of Paxson Communications, argued at the hearings that cable and satellite should be subject to the same regulations that broadcasters are because they also send certain signals over the public airwaves using microwave frequencies.

Now wait a minute, Bud, because I know you know this isn't the same thing at all. So you're saying that just because something moves over the airwaves that the FCC has control over its content, even if that content is encrypted? It just doesn't work that way. If you're going to say that cable's using the airwaves, you're obviously talking about back-haul transmition to the cable co, where the signal's then put together and sent out over the cable lines. If you're going to try and get into regulating that, what's to prevent you from regulating, say, wireless internet provided via the cell-phone spectrum? How long before you say that the 2ghz spectrum used by wifi and cordless phones is a target (sure it doesn't need a license, but the FCC has some very definite things you can and can't do with it).

The days of being able to have technology-specific rules about freedom of speech are over. Pretty soon everything's going to come into your house via the same thick packet-filled pipe. Pretty soon that cable back-haul might as well be over a DS3. What will you do then? How will you regulate that? Everything's about to be just another packet of data. You can't regulate that.