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FCC Debate Masks Issues

Nicholas Johnson

An Interview by Jeff Charis-Carlson
For the Iowa City Press-Citizen

June 27, 2004

This week's Q&A is with Nicholas Johnson, professor in the University of Iowa College of Law and former commissioner of the Federal Communications Commission.

Q: In recent months, the FCC has mounted an aggressive campaign to "clean up" the airwaves. After the antics of Howard Stern, the flashing of Janet Jackson's breast during the Super Bowl, and Bono's use of the F-word in primetime television, the commission is imposing larger and larger finds for infractions. Historically, where has been the line between cleaning up the airwaves and imposing a new form of governmental censorship?

A: There are a number of things going on here, none of which is very reputable. First, since the time of Nicolo Machiavelli, 500 years ago, politicians of all stripes have practiced the art of diversion when things are not going well at home or abroad. Attacking the media has always been a favorite tactic.

Given the disastrous, unnecessary war in Iraq, and the multi-trillion-dollar debt given to our grandchildren in order to provide tax breaks to America's wealthiest, while over 80 million went without health care during some part of the last two years, it was inevitably only a matter of time before the current administration would turn on the media. Vice President Spiro Agnew did it for President Nixon, and the vice president's wife, Tipper Gore, did it for President Clinton.

Q: What other factors do you see at work here?

A: Second, the rank hypocrisy of going after entertainment while ignoring the content of commercials smells like a hog lot. I would far rather explain Janet Jackson's exposed right breast to any once-breast-fed 4-year-old than dinner-hour commercials for tampons, panty liners, hemorrhoids, diarrhea, constipation, or the necessity for treating erections that last over four hours all of which concern the FCC not at all. The fact is that unhealthy, immature approaches to sexuality, and other offensiveness, have for years permeated our commercial marketing of everything from automobiles to zinc supplements.

Third, as for "the F word," Vice President Cheney seemed to find it appropriate in an exchange with Sen. Patrick Leahy in the U.S. Senate Chamber recently. But I doubt the FCC will be holding hearings on that one.

Q: It has been reported that complaints to the FCC have increased by a factor of 10 in the last four years. Has broadcast television and radio really become that obscene in such a short time? Or, why would listeners and viewers feel more empowered to file complaints?

A: The administration has successfully diverted their attention. Programming is far from what courts define as "obscene." But it is probably increasingly offensive. The most serious indictment of broadcasting executives has always been the good they fail to do, not the affirmative harm.

Q: What exactly is the role of the FCC? Does it actively police the airwaves, or does it merely respond to listener and viewer complaints?

A: When I was an FCC commissioner, I spent seven years writing dissenting opinions about how it was weak-kneed and controlled by corporate interests. We now look back on those years as "the Golden Age of responsible regulation." Today it seems to be "last person out turn off the lights." For an agency legally obliged to "serve the public interest" it's sure had a hard time finding it.

Q: On Tuesday, in an amendment attached to a Defense Department bill, the Senate overwhelmingly approved the FCC's raising the maximum fine for radio and television broadcasters airing what it deems indecent material from $27,000 per incident to $275,000. The House previously approved a $500,000 figure. As these differences are worked out within Congress, what likely impact will such a large increase have on programming decisions in the entertainment industry and the news media?

A: This is part of another common political technique in all countries, not just the U.S. First you see to it that media ownership is both concentrated and transferred to those who support your political ideology, and then you frighten and intimidate the media sufficiently that they are even less inclined to explore, expose or criticize what you are doing. Threats of substantial fines for speech violating vaguely-defined standards can do that.

Q: Is it easier for broadcasters when the obscenity laws are very specific or when they are a little blurry?

A: Obscenity is not the problem. "Indecency," constitutionally protected, is, precisely because it's legally blurry.

Q: In 2000, the Supreme Court found a difference between regulating cable and regulating broadcast television because the later uses the public airwaves and the former uses a household-by-household subscription system. Should there be as great a distinction made between regulation of broadcast television and cable? Is it an unfair disadvantage to broadcast television?

A: Lawyers like a rationale for distinctions. That's one of the major ones used for the broadcast-cable disparities. It's hard to say what's "unfair," but we could do with a little more rationalization.

Q: Is this the end of, as some in the entertainment industry have called, "mainstream" television? Is the fragmentation of entertainment and news alternatives bringing new diversity of viewpoints or disjointing the nation? Are we losing, what the Nickelodeon network used to call, "our common television heritage"?

A: Some students call my Wednesday evening media law class "Nick-at-Night." And in that class I have said we're losing "our common television heritage." I'm not sure that means we've lost much. The Internet is now our only hope if we can preserve its freedom.