Sir Charles Burden
Justice Earl Warren once said “The censor's sword pierces deeply into the heart of free expression.” as sad as it is to say, the heart of American free expression is being destroyed by the sword The Federal Communications Commission. More commonly known as the “FCC,” this government agency has power over vast aspects of American life. However, as of January of 2004, the FCC has been on an unstoppable rampage that has no foreseeable end in sight. With the recent increase in their fining abilities (they can now charge $275,000 per incident) the FCC has become one of the most powerful government agencies. As sad as it is to say, unless immediate restrictions are put on the FCC, the American culture could quickly lose its reputation as a haven for free speech, and television and radio would be subject to the whims of the party in power.
The FCC was established by the Communications Act of 1934 as the successor to the Federal Radio Commission. It is charged with regulating all non-Federal Government use of the radio spectrum, which includes radio and television broadcasting. They also control all interstate telecommunications and all international communications that originate or terminate in the United States. Money is appropriated through Congress and the group itself is controlled by five commissioners. All five must be appointed by the president and approved by congress. They serve five year terms and cannot contain more than three members of the same political party. As an added precaution, no commissioners can have a financial interest in any of the bodies governed by the Commission. The current chairman of the commission (appointed by President Bush) is Republican Kevin J. Martin, who succeeded Michael Powell (another republican) in March of 2005 (Commissioners from 1934 to Present). Despite the string of protections, designed to keep any one group from gaining too much power, they have flaws in the system. Since the adoption of the rules, there have been constant claims of outright fraud, in which a conservative commissioner would register as a Democrat to escape the rules (the reverse has also been claimed, but not nearly as frequently). Even though the FCC controls everything from cell phones, to radio controlled airplanes, and even Electronic cash registers, it is most widely known for it’s regulation of Television and Radio broadcasts, and it’s ability to levy fines for broadcasting indecent or obscene material. Recently, there have been several claims from liberals that the FCC is attempting to act as a moral censor to radio and television, while at the same time, conservatives claim that they don’t do enough to sufficiently censor inappropriate material.
In order for something to be labeled obscene by the FCC, it has to pass a three prong test. First, an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest. Second, it must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law, and finally, the material, taken as a whole, must lack serious literary, artistic, political, or scientific value. This test makes it very difficult to successfully prosecute shows for obscenity. However, indecent material is defined as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities.” (Obscene, Indecent and Profane Broadcasts) This is where the FCC have become the pirates of the airwaves. Indecent programming contains patently offensive sexual or excretory references that do not rise to the level of obscenity. As such, the courts have held that indecent material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted in order to avoid broadcast during times of the day when there a reasonable risk that children may be in the audience. Most of the FCC fines and investigations stem for the use of foul language, or profanity. Profanity is defined as “language that “denote[s] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” (Obscene, Indecent and Profane Broadcasts) This is the loosest definition of the three categories and the easiest to prosecute. The FCC has taken this to the extreme. In 2004, they investigated thousands of incidents and prosecuted hundreds. According to Radio Personality Michael Rock, “2004 is sure to be remembered as the year of the Federal Communications Commission.” It started off with Janet Jackson's infamous "wardrobe malfunction,” during the super bowl, where part of Jackson’s costume was ripped away, revealing her breast. This act cost CBS $550,000 in fines. After that, FCC netted the biggest fines in its history: $1.75 million -- against Clear Channel Communications for airing what the FCC labeled "indecent" material by shock jock Howard Stern and other radio personalities. There have also been fines against NBC for singer Bono’s use of profanity during a live broadcast, another against a San Francisco Television station (the first in a quarter of a century) The FCC then went on to propose a fine Fox broadcasting 1.18 million dollars for an “indecent” broadcast. Although fox is appealing the ruling, most experts agree they will lose for one reason: The FCC controls itself. No one regulates the regulators. The FCC is held only a very limited string. The only way Congress can keep control is by refusing to give funds unless certain requests are made, but if, as is now the case, congress is run by the president’s party (remember, the president appoints the commissioners) The FCC has almost free run to rule the country in any way they see fit.
The major issue with the system as it stands today, is that The FCC does not have the power to monitor broadcasts for violations, they can only respond to complaints. While this is a positive in that it keeps the FCC from being able to put undo pressure on any one station they disagree with, this measure has a serious downside. The FCC only investigates claims made by consumers, and although they don’t have to investigate every claim, they do follow up on a majority of them. The problem occurs when a particular consumer has a grudge against a specific personality. The biggest example of this is a man named Al Westcott. Westcott is a self made watchdog who, on his websites boasts that “Al Westcott is single handedly responsible for more than $2.1 Million in FCC indecency fines against Howard Stern No individual in … history has been more successful … than Al Westcott. Al Westcott is King of all Stern Fines.”
Despite the fact that this man has an obvious problem with Stern and therefore, would jump at any opportunity to cause trouble, the FCC still considers every complaint that comes in from this man. The FCC rules specifically state that material must be offensive by contemporary standards, yet people like Westcott are able to file claim after claim, as if he were a good measure of the public. If there was a governing body to control the commission, people like this could be restricted from complaining for the sake of complaining, and truly indecent programs would be targeted. The FCC was designed to and should only take complaints from average people. They shouldn’t jump on the fine wagon just because someone with a chip on his shoulder and an agenda to advance decided it was time to hit the phones.
People like Al Westcott would like our country to become a Taliban-like regime in which censorship is the norm and dissenting or unpopular view points can be suppressed. Radio and Television stations across the country now quake in fear of the mighty hand of Kevin Martin and his “Indecent” Stamp. The FCC has become the new Horseman of the Apocalypse, and they ride the countryside on their steeds of Obscenity, Indecency and Profanity to terrorize the population. It was at the urging of former chairman Michael Powell (son of Colin Powell) that caused Congress to approve a tenfold increase in the maximum fine of $27,500 per incident. Powell had argued the current fine was not large enough to dissuade huge broadcasters from airing objectionable programming. This blitz on indecency came to a head on Veteran’s day in 2004. In what has become an American tradition, ABC plays the Stephen Spielberg film “Saving Private Ryan,” a graphic depiction of WWII staring Tom Hanks. However, due to the violence, gore and language, almost a third of ABC affiliates didn’t air it. Even though ABC offered to pay any fines, the stations feared airing the movie would give the Westcotts of the country ammunition to challenge their FCC licenses at renewal time. The FCC managed to scare broadcasters away from airing a critically acclaimed film, which has been airing on basic television for years, due to their fines.
As of now, the FCC is the only Government agency that has such supreme power. The FCC has the power to strip the American airwaves of anything they so choose, however, there is no way to fight back. If the people are unhappy with their Governor, Senator, or even the President, they can impeach. If they disagree with a law, they can attempt to overturn it in courts, and if they feel mistreated, they can report it to the police. But if they don’t agree with the FCC, they can….. Write Martin a letter, although it will most likely be ignored. The FCC has no official body to answer to, and therefore, they are allowed to run the country in whatever fashion the chairman chooses. The first amendment guarantees the right to a free press. No matter what a newspaper or magazine prints, the government can not shut them down (as the Bush Administration is seeing with The New York Times). However, this freedom doesn’t seem to extend to the airwaves. In the field of television and radio, one excited slip (such as Bono’s use of the “F” word) can cost a station hundreds of thousands of dollars in fines. And the most disturbing thought of all, is that this might not be the end of it. As Robert Garmong writes in his essay “Why We Need to Abolish the FCC,” Politicians have already begun “whispering demands to censor PBS or the Fox News Channel on the grounds that their alleged bias violates public interests.” The very idea of the FCC shutting down stations which show any kind of bias should be enough to terrify anyone that values the Constitution. However, in this day and age, it isn’t only a thought; it’s a very real possibility.
In country that supposedly values freedom of speech above all else, we as a people are willing to have our lives controlled by other forces. Over the years, the line of acceptable censorship has slowly been pushed further and further toward Orwellian. Now is a crucial moment in American history. If the American people wake up now and shout “we’ve had enough!” the process may be stopped in its tracks. No longer can America allow the FCC to rule every aspect of life. Now is a time for every American to stop and think about how much freedom really means to them and how they would feel about being forced to listen to the views of whoever happens to be in power. That should make everyone man. But make sure you don’t think obscene thoughts, or you might just get fined.
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Garmong, Robert. “Why We Need to Abolish the FCC.” Elements of Argument, Ed Annette T. Rottenberg, Donna Haisty Winchell. Bedford/St Martins, 2006
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Westcott, Al Me & Howard Stern & The FCC <http://westcottstern.blogspot.com/>