How Bureaucrats Tried and Failed to Make TV Suck

The history of all things televisionish has been one of fraught relationships between rising innovators and grasping regulators.


Television permeates our culture and enters our homes and lives in a way that would certainly horrify the early self-appointed gatekeepers between electronic media and the American public. That's a good thing, because the broad realm of video entertainment that we now call "television" would be a hell of a lot less interesting if innovators hadn't put much of the medium beyond the gatekeepers' grasp.

Relying on early rulings issued by courts baffled by new forms of communication, those gatekeepers insisted that free speech protections didn't apply to moving images and broadcast radio waves. That made it open season for control freak regulators—and all those who inevitably crawl out from under their rocks to manipulate the power of regulation to achieve their own ends. That television is as vibrant, interesting, and multifaceted as it is today is a testament to the artists, innovators, and entrepreneurs who survived decades of attempted garotting with red tape, and have now largely moved beyond the reach of their would-be stranglers.

Jonathan W. Emord, in his 1991 book, Freedom, Technology, and the First Amendment, attributes much of the early hobbling of free speech protections for modern media to the United States Supreme Court's 1915 decision in Mutual Film Corporation v. Industrial Commission of Ohio. "[T]he exhibition of moving pictures is a business, pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio Constitution, we think, as part of the press of the country, or as organs of public opinion," opined the court. That this decision was immediately followed by the First World War's incursions into both civil liberties and economic freedom just compounded the damage done to the liberty of the new media—not just movies, but also radio. Within a few years, broadcasting was a privilege to be conducted only by government license, and under terms set by bureaucrats and their buddies.

Please stand by

And, as always when "a business, pure and simple" comes to be heavily licensed and regulated, those best equipped to navigate the system are the businesses already well established and connected. Wrote Emord:

From 1922 until 1925, through a series of four national radio conferences, select representatives from the government's departments, members of Congress including the principal authors of the Radio Act of 1927, and radio industry leaders effected a tradeoff, a classic press-state symbiosis, which culminated in the most comprehensive system of press licensing America has ever known. The regulatory regime instituted then persists to this day and has recurred on the local level in regulation of the cable industry.

Of course, no regulation goes undefied. From the earliest days, border blaster radio and, to a lesser extent, television stations based in Mexico broadcast music, religion, dubious medical cures, and other content guaranteed to rub regulators the wrong way at power sure to curl their red tape. Famed DJ Robert Weston Smith, better known as "Wolfman Jack," made his name on XERF at 250,000 watts (five times the legal U.S. limit for radio stations).

Within the United States, pirate stations (have we mentioned that Reasoner Jesse Walker wrote Rebels on the Air: An Alternative History of Radio in America?) pumped out content of their choosing, at legal risk, on unlicensed stations. They often, though not always, operated below the federal government's legal minimum for power. As Walker pointed out in 2001 with regard to radio regulations as of that time, "With very few exceptions, the FCC won't even issue licenses to noncommercial stations of less than 100 watts. Class A commercial stations require at least 6,000 watts of power."

Technologically more complex, pirate television stations have been harder to pull off—at least in the United States (they proliferated throughout countries around the Mediterranean in the 1980s)—but have also popped up from time to time in the U.S. Usually short-lived before snuffed out by the powers that be, they also have brought quirky content to audences of little interest to licensed broadcasters—or else audiences the Federal Communications Commission would rather not see served at all.

Which brings us to the modern era of television, in the broader sense. Disfavored content—specifically, pornography—helped drive the explosion of VCRs. In 1980, 60 percent of video sales in the U.S. featured people bumping uglies.

And while the motion picture association made an abortive attempt to ban VCRs, the legal environment had changed since Mutual Film Corporation. Rented or purchased, and whatever they featured, prerecorded videos were and remain largely beyond the reach of regulators.

The legal environment changed for other media, too. Cable television is still essentially licensed by local governments, as Emord noted in 1991, but the content of cable channels is largely beyond the reach of bureaucrats. Cable television "implicate[s] First Amendment interests" the Supreme Court ruled in 1986's City of Los Angeles v. Preferred Communications, marking a significant change in attitude since 1915. At least partially as a result of that freedom, as well as its ability to target niche audiences, cable has enjoyed an explosion of creativity, and of audience devotion in recent years.

Long live the new flesh

Americans being what we are—fascinated by sex, yet governed by people who think we ought not be enjoying it quite so much—it's no surprise that pornography also drove the Internet, and brought "television" to the online world. "Video technology is a place where adult sites have been especially innovative, integrating live video streams into browser windows with early 'jpeg push' video," NPR noted in 2010. Unhappy with off-the-shelf video solutions, adult content providers developed their own high definition delivery systems, pushing the envelope not just content-wise, but also in terms of technology.

And that technology continues to deliver. Networking company Cisco Systems Inc. predicts that video will constitute 79 percent of Internet traffic by 2018, up from 66 percent in 2013. Deliverable from and to anyplace in the world, in a variety of formats catering to myriad tastes, "television" on the Internet is undergoing a revolution of its own.

The regulation documented by Emord, that hobbled and controlled broadcast in its early years, still exists. It's administered by bureaucrats who continue to tout the importance of their interference in your viewing pleasure. But television increasingly evolves beyond their reach.