The Progress & Freedom Foundation

WASHINGTON D.C. - Converging media platforms and a wealth of available content filtering technologies negate Federal Communications Commission authority to expand broadcast television content regulation, explains PFF's Adam Thierer and scholars from the Center for Democracy & Technology in a joint amicus briefs filed today with the U.S. Court of Appeals for the 3rd Circuit and Wednesday with the U.S. Court of Appeals for the 2nd Circuit. The briefs, filed in response to appeals from broadcasters challenging FCC indecency decisions and subsequent fines, also explain that the FCC's indecency decisions should be overturned because agency procedures violate First Amendment rights and the Administrative Procedures Act.

"With a wide diversity of parental control tools now at their disposal, families have the ability to construct and enforce their own 'household standard' for acceptable media content in their homes," stated Adam Thierer, PFF Senior Fellow and Director of the Center for Digital Media Freedom. "Consequently, government does not have a compelling interest in imposing an amorphous 'community standard' on Americans since there are less restrictive ways for families decide for themselves what should and should not be seen or heard in their homes."

"The FCC's increasingly aggressive attempts to control speech on the radio and television are on a collision course with a wave of technological change that will soon render the Commission's involvement in these matters obsolete," said CDT Staff Counsel John Morris. "As the distinctions between broadcast and electronic media fade into history, policy makers, technologists and civil libertarians must work together to ensure that the light-touch approach to Internet communications, and not the outdated rules for broadcast, becomes the standard for regulation in the converged media world."

The briefs contend that the basis of the Federal Communication Commission's authority to regulate content on broadcast television is being challenged by converging media platforms and the widespread availability of parental control technologies. Video content available over broadcast television is also available over a variety of other platforms, such as the Internet and mobile devices, and an increasing number of households subscribe to satellite or cable video services. Parental controls allowing individuals to block content they deem offensive or inappropriate, such as filters and channel-blocking technology, are widely available for all the aforementioned media platforms. And the V-Chip is ubiquitously available to those few households still relying exclusively on broadcast television signals. These tools provide a less restrictive alternative to government regulation. As a result, the FCC can no longer justify broadcast television content controls on "pervasiveness" grounds, especially in today's diverse, hyper-competitive media marketplace.

The briefs also address four other areas of concerns which illustrate why the FCC's indecency determinations should be reversed on appeal:

Complaint data that the FCC cites as illustrating increasing public concern with broadcast content has been inflated through accounting changes only instituted on indecency complaints, as demonstrated in an earlier PFF paper.
In the recent indecency decisions, "the Commission wholly failed to conduct an investigation into analysis of what is patently offensive according to 'contemporary community standards.'" This is in violation of the Administrative Procedures Act.
By failing to base their decisions on community standards analysis and instead relying on complaints that are mostly generated by one advocacy group, "the Commission has enabled a 'heckler's veto' in violation of the First Amendment."
The Commission's analysis of terms it deems to be indecent are inconsistent with past policy and ultimately have a chilling effect because broadcasters will impose self censorship when faced with uncertainty over what could be labeled indecent.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.