From the November 2008 issue
(Page 2 of 4)
This pattern has alarmed Obama's supporters in the media reform camp. Writing in May, McChesney and The Nation's John Nichols warned that "industry money is going to Obama in anticipation of his victory." At the National Conference for Media Reform, McChesney added that the reformers would need to "apply pressure" from the other direction.
It's worth noting, though, that the reformers and industry aren't always at odds. The most prominent example is net neutrality—the idea, endorsed by Obama, that Internet providers should not discriminate in price or priority between different uses of the Net. Like the reformers, but for its own self-interested reasons, Google strongly supports legal enforcement of this principle. As of July, Google accounted for $373,212 in donations to the Obama campaign.
The bureaucracy. And then there's the commission itself, which has its own momentum. "The FCC is, structurally, an independent agency," points out Kevin Werbach, an assistant professor of legal studies at the Wharton School, a prominent champion of spectrum reform, and an Obama supporter. "The president selects the chairman and nominates the commissioners, but the president does not tell the FCC it must rule this way or that way on a particular proceeding."
Both of the current Democratic commissioners, Jonathan Adelstein and Michael Copps, have supported increases in regulatory controls, with Copps in particular leading the charge against both vulgar broadcasting and media mergers. Neither is likely to leave next year. For some observers, that alone is enough to indicate what to expect from a new administration. It's "not hard to envision an Obama FCC—just read the speeches and opinions of Adelstein and Copps, and you're there," says Ben Compaine, co-editor of the Journal of Media Economics. (Both Adelstein and Copps declined to be interviewed for this article.)
With those frequently conflicting forces in the background, here's how the most important issues at the FCC might play out under Obama.
'Indecent' Speech
In the last seven years, the commission has ramped up its war on "indecency," levying unprecedentedly high fines and attempting to extend its influence into cable and satellite broadcasting. (Under current law, its rules against swearing and smut do not apply to such subscription services.) This shift of policy actually preceded 2004's Super Bowl debut of Janet Jackson's right breast, but the crackdown has only intensified since then, with steeper fines and sillier targets.
"Give credit where it's due," says Thierer. "Obama is pretty good on this issue." The Democrat's official technology plan condemns violent, sexual, and bigoted speech and images in the media, but it also states directly that the candidate "values our First Amendment freedoms and our right to artistic expression and does not view regulation as the answer to these concerns. Instead, an Obama administration will give parents the tools and information they need to control what their children see on television and the Internet." That's a far cry from the views of Kevin Martin, who once said, "You can always turn the television off and, of course, block the channels you don't want. But why should you have to?"
That said, the bureaucratic momentum on this issue favors the current crusade. In 2004, People asked the man who put Martin in charge of the FCC what to do about "foul language and sexual titillation" on television. Bush's reply: "They put the on/off button on TVs for a reason." It was a wise answer, just like Obama's comments about the First Amendment. And it didn't prevent the crackdown.
"I don't follow Obama as much as I follow the FCC," says Matthew Lasar, a left-leaning historian at the University of California at Santa Cruz and a frequent contributor to the tech site Ars Technica. "Think in terms of what he's going to inherit." The drive for higher indecency penalties isn't coming only from the Republican chairman. On the Democratic side, Adelstein and Copps are enthusiastic censors as well, with Copps in particular urging the commission to come down harder on vulgar expression. In 2004, when the agency fined Clear Channel $755,000 for a series of crass radio skits and some related incidents of improper recordkeeping, Copps objected that the company's stations should have paid even more—or, better still, lost their licenses to broadcast altogether: "I am discouraged," he wrote, "that my colleagues would not join me in taking a firm stand against indecency on the airwaves."
"Michael Copps and Jonathan Adelstein are pretty invested in the indecency process, because it brings various parties together around the issue of believing in regulation," says Lasar. "They see this as a way to draw people into the pro-regulator camp." Reversing that trend would mean facing down an entrenched independent bureaucracy. "I'd be surprised if Obama can make much of a dent in that, assuming he really wants to," Lasar concludes.
Congress, too, seems attached to regulating indecent language. The judiciary, however, may be leaning in another direction. In July the U.S. Court of Appeals for the 3rd Circuit ruled that the FCC "acted arbitrarily and capriciously" when it fined CBS $50,000 for Janet Jackson's nipple slip. In a similar case, involving the government's right to punish stations for airing unplanned, fleeting four-letter words, the 2nd Circuit rebuffed the commission on the same grounds, adding that it was "skeptical that the Commission can provide a reasoned explanation for its 'fleeting expletive' regime that would pass constitutional muster." The government has appealed that decision, and the U.S. Supreme Court will hear the case soon.
Local Speech
During the last few decades, radio stations have relied increasingly on programs produced elsewhere. With voicetracking technology, a DJ in Dallas can record hours of shows for stations around the country in less than 30 minutes, complete with regional references to be inserted into different outlets' transmissions. Meanwhile, local musicians and community activists often have trouble getting any airtime at all.
It's technologically feasible to let the locals start small stations of their own, but regulators have made that a long, cumbersome, and expensive process. The entry barriers range from costly technical requirements to outdated channel separation rules that tighten the number of available licenses.
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I don't buy the reasoning that Obama won't try to resurrect the fairness doctrine just because he said he won't.
Now imagine a year from now, under the BO regime, the required counterpoint article: "Why the FCC is a good and benevolent agency"
What a weird little obsession - the terror at the possibility
that stations might have to run counterpoint commentaries.
Hey, and how about those mandatory PSAs, huh? To the
barricades!
Joe, I've read your comments many times -- you're too smart to really believe that is what the result of the fairness doctrine was or would be in the future.
What a wierd little obsession liberals have that the government would use warrentless wiretapping to spy on American citizens instead of for catching terrorists...
Come on joe, you yourself have some kind of a saying about people playing dumb.
Head-
You mean those same liberals who voted for enhanced executive
branch espionage?
Maybe I'm missing something, Bladedoc, but we had the Fairness
Doctrine for decades, didn't we?
And the consequences were those drab "And now, a counterpoint"
editorial.
No?
Don't get me wrong, I can see the principled argument here. It's
just the volume of ink spilled on this issue seems
disproportionate.
Thanks for not choosing a picture of a few seconds before that one.
And the consequences were those drab
The consequences were often unseen. Namely, all the political
speech that went unsaid because dealing with potential
"counterpoints" was too much of a hassle.
Counterpoint? How does that work unless you think there are only two sides with views worthy of airing? This whole concept turns free speech on its ear and is worth making a big deal about.
So your pragmatic concern, BakedPenguin, - the one that raises
this from a matter of principle to something really important,
something that might even be worth changing your presidential vote
over - is that in the age of the internet and cable television,
people won't have access to political commentary?
I always hear the opposite argument on threads about media
consolidation, and it's pretty good argument.
Joe: The consequences included overt attempts by elected
officials to use the doctrine to harass their critics. I wrote
about some of the ugly history here.
Bilby: The argument isn't just that he says he won't do it, but
that he's politically savvy enough to understand the dangers of
doing it. But I could be wrong. Give the Dems a veto-proof majority
and all sorts of things might suddenly become thinkable.
For the most part, the point of the article isn't to predict the
future so much as to open up the hood, show the major mechanisms
that will be at work in an Obama FCC, and give the readers the
tools to judge for themselves how those mechanisms are interacting.
That, and to remind readers that the Fairness Doctrine isn't the
only important issue on the table.
And the consequences were those drab "And now, a
counterpoint" editorial.
it was a *bit* more complicated than that.
now i realize this is some kind of zombie stalking horse (it
hungers for the flesh of living wheat) as part of the last ditch
efforts of republicans to cast the tall shadow of socialist
barackian dhimmitude upon a fearful masses or whatever the living
fuck they think they're doing at the moment and whatnot, but that
doesn't make it less odious. it's odiousness doesn't really make it
very plausible, either, so there's that to be thankful for.
No, joe. I don't think people will lose all access to political
commentary. Let me restate, if I was unclear - of the media outlets
whom the doctrine applies to, some will forgo political speech,
especially any speech that may be considered controversial -
because it's easier than dealing with the requirements of the
doctrine.
I have no idea where you got the "changing your presidential vote"
idea from. I was addressing the consequences of a policy.
Joe is willing to make all sorts of "compromises" of his "liberty" as long as the consequences are predictable and benefit his agenda. That's what liberal means, anyway - liberty for the favored intellectuals, mute acquiescence for everyone else.
Jesse,
Do you have anything to say about this controversy over the new
system of radio ratings that would replace the venerable diary
system? I have heard that the new ratings system results in lower
ratings for minority broadcasters, and that Obama and Andrew Cuomo
and other lefty lawyers have been working to use lawsuits to
prevent the implementation of the new system.
Penguin,
So your concern isn't with the public and the availability of ideas
and the richness of political discourse, but with the station
management. OK.
I "got" the thing about changing one's presidential vote from my
first comment - which was, once again, a question about why this
issue is being treated as so important.
Head, if you actually believed any of the yammering you engage
about the biased liberal media, you wouldn't be arguing that giving
dissenting voices airtime represents an effort to advance my
political agenda. But, of course, you don't.
the terror at the possibility that stations might have to
run counterpoint commentaries.
So is there going to be a libertarian counterpoint? A
constitutionalists counterpoint? An evangelical counterpoint? An
anarchist counterpoint? A spaghetti Monster Counterpoint? The Whig
Counterpoint? The Communist Counterpoint? Or are we stuck in the
idiotic simplistic world where only Democrats and Republican's have
opinions?
What the the fairness doctrine really means is ONLY republicans and
democrats batting it out. But since there have long since any
meaningful difference between the parties, the mediocrity that this
doctrine would leave us with not worth the price or reducing
anyone's freedom.
I was yammering about your biased liberal apologia - not the media. Dissenting voices are exactly what is stifled by the fairness doctrine - or do you actually believe that in a fairness doctrine world liberal media outlets (no, I'm not saying all media are liberal - just some) would be forced to include conservative views? If you do, you are surely doing a discredit to your normally evenhanded analysis.
Conservative: We should lower taxes on individual income
Liberal: We should raise taxes on individual income.
Liberal: We should raise taxes on individual income.
Communist: What is this "individual" income you speak of?
All taxes are theft, but so is private property. Let's all smash toilets!
President Jackson thinks he can ride roughshod over the Constitution!
Everything within the State, nothing outside the State.
mitch: Only that it's yet another indication that the different ways of measuring audiences are skewed in different built-in ways, a topic I've discussed in the past in connection with the use of different yardsticks by the Corporation for Public Broadcasting. I haven't been paying a lot of attention to the lawsuits that are now being filed; I should probably probe that more closely.
Right, joe. Station management. Those greedy bastards in Jesse's
link all got what they deserved. How dare they oppose such a well
meaning doctrine, especially when there are no consequences.
Had I addressed your comment about changing one's presidential vote
due to this issue, I could see why you'd bring it up. I didn't.
Given that neither candidate has committed to this issue, I think
changing your vote on this would be a silly idea. Neither candidate
is very good on 1st amendment issues.
Head, if you actually believed any of the yammering you engage about the biased liberal media, you wouldn't be arguing that giving dissenting voices airtime represents an effort to advance my political agenda. But, of course, you don't.
One can criticize the media for being one-sided without advocating
for government intervention to change it.
Why would the "fairness doctrine" be needed in the first place? Is someone actually suggesting that the Democrats and Republicans don't get enough airtime to mention their talking points?
troy,
I think it would likely be exactly the opposite of this: What
the the fairness doctrine really means is ONLY republicans and
democrats batting it out. Third-party voices would be sought
out to provide the counterpoint by those stations that are pushing
the message of one of the two parties, in order to avoid giving the
other side air time, and the net result would be an expansion of
their visibility.
I'm thinking of the way Fox News brings on libertarians, not
liberal Democrats, to argue the anti-PATRIOT side, or how MSNBC
brings on Pat Buchanan to argue opposite a liberal on a foreign
policy issue.
So your concern isn't with the public and the availability
of ideas and the richness of political discourse, but with the
station management. OK.
You have to have your head buried in the sand to claim a lack of
availability of ideas and political discourse.
Oops, let's try again:
The only argument in favor of the Fairness Doctrine was
the limited channels argument. Since that's long gone, the sole
justification for allowing rebuttal time is also long gone. And
that justification was bogus even when it wasn't, if you catch my
meaning.
It's a sad commentary on the state of free speech discourse when
people are okay with laws that may chill political speech.
Head,
or do you actually believe that in a fairness doctrine world
liberal media outlets (no, I'm not saying all media are liberal -
just some) would be forced to include conservative
views?
That is how it worked last time, but oh, right, I forgot: everyone
conspires for the liberals, including the FCC, so they'd get a
special break. You have no idea how far up this thing goes,
man!
Easy there, BakedPenguin. I'm just making sure I understood your
point.
And you addressed me after I asked why this was being treated as a
major issue, so perhaps you can stretch yourself enough to perceive
why I might think you were discussing what made it a major
issue.
Jordan,
One can criticize the media for being one-sided without
advocating for government intervention to change it. But
that's not the argument I was responding to. Rather, I was
responding to the assertion that favoring, or even non opposing
enough, a proposal to require a diversity of viewpoints is an
effort to advance a liberal agenda, and laughing particularly hard
at the fact that said assertion is coming from someone who swears
up and down about the liberal media. You see, I'm only willing to
see the liberal media required to provide alternative viewpoints
because I want to silence all non-liberal voices. Or something. I
don't know, it probably made sense in Head's head before he typed
it.
You have to have your head buried in the sand to claim a
lack of availability of ideas and political discourse.
I agree; in fact, I made that point before you did.
Pro Libertate,
Shouldn't we also apply the "fairness doctrine" to religious
programming as well? :)
joe,
From what I have come to understand of the subject in this
conversation the "fairness doctrine" is at its base content
regulation by the government. I can't think of any possible reason
why content regulation is a good idea.
I think it would likely be exactly the opposite of this:
What the the fairness doctrine really means is ONLY republicans and
democrats batting it out. Third-party voices would be sought out to
provide the counterpoint by those stations that are pushing the
message of one of the two parties, in order to avoid giving the
other side air time, and the net result would be an expansion of
their visibility.
I'm thinking of the way Fox News brings on libertarians, not
liberal Democrats, to argue the anti-PATRIOT side, or how MSNBC
brings on Pat Buchanan to argue opposite a liberal on a foreign
policy issue.
Your example is not a good one, as it does not involve legally
being forced to give an opposing viewpoint. That is just an example
of a station giving an opposing view of their choosing. If it
becomes a requirement by legal force, the oppoing view will most
often be represented by whoever has the most power to bring about
that legal force. And I doubt it would be anyone without ties to
the major political parties.
Maybe I'm missing something, Bladedoc, but we had the
Fairness Doctrine for decades, didn't we?
And the consequences were those drab "And now, a counterpoint"
editorial.
Let's suppose the FCC requires every station to air all sides of
any issue presented. First, the easy way to comply is to avoid
presenting any issues. (As covered above.) But let's say that
doesn't occur, that each station does air all
sides.
How many stations do you need? One.
This is part of what happened to newspapers. The professional press
decided they were going to be impartial. Instead of a city with
five different papers, having five different political slants, you
have five news papers with "no" political slant. If your five
papers present identical AP news, four become redundant. That's
when we really got hit by "media consolidation."
What's the broadcast alternative? Open up the spectrum. If you
don't like the political viewpoints available, start your own
station and throw yours into the ring.
BTW, why were the "counterpoint" editorials drab? Because a station
forced to air an alternate viewpoint has no incentive to make that
viewpoint appealing.
OTOH an alternate viewpoint station, trying to attract financial
support and listeners, has a huge incentive to make its programming
as engaging as possible.
The free market at work.
It's a sad commentary on the state of free speech discourse
when people are okay with laws that may chill political
speech.
people are fuckholes about things sometimes because it's not about
principles but sports.
TEAM RED TEAM BLUE GO TEAM GO!
woo! we're winning! woo!
Third-party voices would be sought out to provide the
counterpoint by those stations that are pushing the message of one
of the two parties, in order to avoid giving the other side air
time, and the net result would be an expansion of their
visibility.
This didn't happen in the proceeding decades when we had the
doctrine. Why should I believe that it would be any different in
the future? A television station that gave a communist a few
minutes would have lost his license immidiately.
The regulatory edict that eventually evolved into the Fairness Doctrine was directed at a station owned by the Socialist Party.
So, what if we send a manned mission to Mars? Will the stations covering the event have to give equal time to Mars landing hoaxers?
"Sen. Obama does not support reimposing the Fairness
Doctrine on broadcasters."
I thought this might be an important point.
Talk about much ado about nothing.
More to the point.
Given that the abuse/expansion of power is mainly a hallmark of the
Bush approach, why is there an inference that Obama will operate in
the same way?
The danger exists, but is there reasonable support for the notion
that this increased regulation of content trend would continue with
Obama?
All vapor and innuendo it seems.
Here's my counterpoint.
"Joe, you ignorant slut!"
No-one else was going there ... *sheepish*
Don't like it, not at all.
A concept that should forever remain on the trash heap.
Anarchist Counterpoint
All taxes are theft, but so is private property. Let's all smash
toilets!
At this point i went full on LOL looking for a hammer.
NM,
But the Congressional leadership does, apparently, want to
reinstate the Fairness Doctrine. Would Obama oppose Congress on
this issue? I rather doubt it.
Pro Libertate,
I disagree.
He has explicitly stated that he does not support the idea.
BTW,
I have never heard a legislator discuss bringing this back.
Never.
Doesn't seem high on their agenda.
. . .and he's not going to appoint liberal justices. Let's just say that I don't think Obama is going to be the first presidential candidate to tell us the truth about what he's going to do in office.
I've actually heard Pelosi talking about reviving the Fairness Doctrine. On NPR, I believe.
There's a little bit about current Congressional support for reinflicting the Fairness Doctrine on us in the Fairness Doctrine wiki entry.
Neu mejican,
The danger exists, but is there reasonable support for the
notion that this increased regulation of content trend would
continue with Obama?
As Jesse makes rather clear in the article the issue may have as
much or morde to do with the FCC than it does Obama.
I have never heard a legislator discuss bringing this
back.
Read the article.
I agree; in fact, I made that point before you
did.
Only as I was typing mine :)
And yet you support a regulation that provides value of less than
zero.
Rather than arguing about whether the Fairness Doctrine will be
merely a minor imposition on the First Amendment, or have a major
chilling effect on free speech, let's ask the prior question:
What justification is there for it at all.
And, joe, the chilling effect of the fairness doctrine became
perfectly apparent after it was lifted. This little thing called
talk radio sprung out of the void, you know. Now, I realize that it
is full of Speech Joe Doesn't Like, but that really doesn't signify
in the whole marketplace of ideas thingy.
Seward,
House Speaker Nancy Pelosi and other prominent Democrats have
publicly pined for its return
I read the article before commenting.
I have not heard this pining.
So I will stick with my assessment that it is low on their
agenda.
Pelosi: "did not want to forbid reintroduction of the Fairness
Doctrine"
Hardly sounds like a wave of support for the idea. The wiki entry
corroborates my opinion that this is low on the agenda.
morde to do with the FCC than it does Obama.
Yeah, but Obama will the replacing many of the players that are
pushing for content regulation with people that agree with
him.
He as made it explicit that he does not support content
regulations.
He as made it explicit that he does not support content
regulations.
I give him some credit for that, yet his campaign has tolerated
numerous activities aimed at silencing critics and opposition. It
sounds like he's OK with free speech in principle, but isn't
willing to get his hands dirty fighting for it.
I just wonder how much of this is going to be rendered moot as higher speed cell phone networks grow and as people adopt the new technology- I can get internet radio almost anywhere now with an iPhone. I'm curious how much claim the FCC has to be able to regulate speech and indecency over internet "radio"?
Neu Mejican,
I have not heard this pining. So I will stick with my
assessment that it is low on their agenda.
I'm not quite sure why the fact that you haven't heard
something has anything to do with whether it is high on their
agenda or not.
Yeah, but Obama will the replacing many of the players that are
pushing for content regulation with people that agree with
him.
As we all know, once the "right people" are in charge all things
will run perfectly.
He as made it explicit that he does not support content
regulations.
Where exactly did he state that? If by this statement you mean he
has sworn off trying to reinstate the "Fairness Doctrine," well
that doesn't mean he has sworn off content regulation.
dead_elvis,
Regulators never seem to figure out that technology and human
behavior tend to severely undercut their regulatory schemes.
Seward,
Where exactly did he state that?
Because you haven't heard him state it means it is not true?
;^)
I'm not quite sure why the fact that you haven't heard
something has anything to do with whether it is high on their
agenda or not.
Since I pay attention, it seems that I would have heard of the
items that are high on their agenda. It seems.
Yeah, but Obama will the replacing many of the players that are
pushing for content regulation with people that agree with
him.
As we all know, once the "right people" are in charge all things
will run perfectly.
Nice bumper sticker.
The preferred policy of policy makers tends to have an impact on
the policy implemented.
It ain't about the people, it is about the policy.
Oh, and Seward,
Regarding Obama and his position on regulation of content...
Read the post.
Sheesh.
Protect Our Children While Preserving the First Amendment: We live in the most information-abundant age in history and the people who develop the skills to utilize its benefits are the people who will succeed in the 21st century. Obama values our First Amendment freedoms and our right to artistic expression and does not view regulation as the answer to these concerns. An Obama administration will give parents the tools and information they need to control what their children see on television and the Internet in ways fully consistent with the First Amendment...
http://www.barackobama.com/issues/technology/
Obama has said a lot of things. If you believe them all, I have a secure hedge fund to sell you. He will align with the Fairness Doctrine Illuminati in Congress before you can say El Rushbo.
Neu Mejican,
Because you haven't heard him state it means it is not true?
;^)
It might be true. Which is why I asked the question.
Since I pay attention...
Not enough to note some direct comments by members of the
Democratic party on the issue.
It ain't about the people, it is about the policy.
But you wrote...
Yeah, but Obama will the replacing many of the players that are
pushing for content regulation with people that agree with
him.
So apparently it is about the people who have the right
policies.
Anyway, two things from the link above:
Barack Obama strongly supports the principle of network
neutrality to preserve the benefits of open competition on the
Internet.
Net neutrality is a terrible idea for multiple reasons. So there is
one very important reason not to vote for Obama.
As president, Obama will encourage diversity in the ownership
of broadcast media, promote the development of new media outlets
for expression of diverse viewpoints, and clarify the public
interest obligations of broadcasters who occupy the nation's
spectrum.
This all rings of some form or another of content regulation. Why
not simply get rid of the stupid ownership rules and let the market
decide the issue, instead of trying to mandate some ownership,
viewpoint, etc. outcome?
An Obama administration will give parents the tools and
information they need to control what their children see on
television and the Internet in ways fully consistent with the First
Amendment
This is either content-free hogwash, or the assumption of god-like
powers. You make the call.
Seward,
Not enough to note some direct comments by members of the
Democratic party on the issue.
Indeed, I have not payed enough attention to catalog all the
comments by the Democratic party leadership on all issues.
RC Dean,
You have a low bar for god-like powers.
This would be no more of a burden than providing the number of
calories in a cola.
Always Sunny In Philadelphia: Tonight's episode contains violence,
sex, necrophilia, cannibalism, drug use, and profanity.
God like.
Net neutrality is a terrible idea for multiple reasons. So
there is one very important reason not to vote for
Obama.
Okay. At least in this case you would be voting against him for a
real position rather than voting against him for a position you
think he might secretly have.
As for net neutrality... devil's in the details whether it is a
good idea or not.
This all rings of some form or another of content
regulation.
Encourage doesn't have to mean mandate.
Encourage doesn't have to mean regulate.
Encourage can mean encourage.
Now, "obligations" might mean regulate.
But the question is whether this is a regulation on content, or
activity (a mushy area for sure).
But I do pay enough attention to know that this issue is not high
on their priority list.
So apparently it is about the people who have the right
policies.
A difference without a distinction I suppose.
Like I said before, it is a nice bumper sticker.
it was a convenient club for politicians and interest groups itching to silence their critics.
I wonder what more recent law might be used as such a club...
something's coming to mind, but I can't quite get it in
focus...
This article was informed, insightful, comprehensive and
well-written.
Jesse Walker is the anti-Steve Chapman.
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