The Reluctant Planner

FCC Chairman Michael Powell on indecency, innovation, consolidation, and competition.

Nick Gillespie, Jesse Walker & Drew Clark from the December 2004 issue

(Page 2 of 9)

Powell: Nothing's changed, and that's part of the problem.

Reason: But you're talking a lot more about indecency now.

Powell: Yeah. It's quite consistent, actually. The indecency laws, first of all, are statutes. The people of the United States, through legislation, have made indecent speech between the hours of 6 a.m. and 11 p.m. over only one medium, broadcasting, unlawful. They have invested in this commission authority to enforce that law. The commission does it in response to the complaints from the public. Many people have tried to argue that we should be like the FBI on indecency and be affirmative, that we should go out and listen to television and radio. We don't do that. We wait for the American people to complain, and then we act on complaints. What has happened in the period you've identified is indecency complaints have skyrocketed.

Reason: So you can take complaints. But why do you actually need to levy fines against someone who uses, say, an expletive in a passing phrase, as Bono did at the Golden Globes?

Powell: The statute says two things. It makes indecency unlawful, and it makes profanity unlawful. How do you say it's not profane? It's in the criminal code, which means John Ashcroft could theoretically go try to slap handcuffs on you. Now, nobody expects that, but there's nothing about that statute that says otherwise. If the f-word's not profane, then I don't have any idea what profanity is in America. Presented squarely with a case like that, it became very difficult to say it's not profane, even though I think you could debate whether it's indecent.

Reason: But this was the first case where you've used a profanity standard.

Powell: In the past there are some profanity cases linked to blasphemy. But I don't see anything in [the definition of] profanity that says "f-you" is OK but "f-God" is the only thing we care about.

Reason: Do you think it's appropriate that radio broadcasters have to meet a different standard than, say, a filmmaker when it comes to indecency or profanity?

Powell: This goes back to, do I think that the First Amendment should be less protective of broadcasting than it should be of cable? I don't particularly.

I can make an argument that radio is free. I can make the argument the Supreme Court has made: It's the one medium that uses a public asset and resource, as opposed to being purely private. The airwaves belong to the United States government and you license use. They're the public's airwaves.

Reason: Should the airwaves belong to the United States government?

Powell: That battle was over in 1920. You could've argued that there should have been a private property model of spectrum, and many people have written brilliant articles about how you could have done that. Ronald Coase won the Nobel Prize for arguing that. But I can't live in every century. Nearly 100 years ago, Herbert Hoover as secretary of commerce decided the airwaves belong to the public.

Reason: But things have changed, in part because of the Coase article. The philosophy of auctions took off in the '90s, and one can grant de facto property rights without de jure property rights. Wouldn't you say we're moving more toward that system?

Powell: Clearly. Most of the property right-esqe things you're talking about in public spectrum are our initiatives. This is a commission that has promoted secondary leasing, secondary markets. This is a commission that eliminated arbitrary spectrum caps [on cellular companies' holdings]. It is a commission that creates more flexibility in licenses. Those are all de facto property rights. How many speeches have I given where I say, "Let's move from command-and-control spectrum models to more market-based spectrum models"?

But let's be candid: Broadcasting will always have a different set of dynamics associated with it. Why? Because it is content, and because it's very, very political.