Leaving aside the Janet Jackson incident during this year’s Super Bowl halftime show, it seems reasonable to question the wisdom of Congress getting involved in regulating “pay TV” programs. Subscription‐based media providers have not faced such regulatory scrutiny in the past because they are not licensed by the FCC and, therefore, receive strict First Amendment protection.
But some lawmakers seemingly feel that should change. For example, during recent hearings, Rep. Cliff Stearns (R-FL) suggested that Congress needs to create a “code of conduct” for television that encompasses cable and satellite TV. And Rep. Heather Wilson (R-NM) and Republican FCC commissioner Kevin Martin both suggested that cable and satellite companies should offer a “family‐friendly” tier of programming. Presumably, they’d like some say about what is included in that package. Lawmakers like Sen. John McCain (R-AZ) offered an alternative regulatory approach that would force cable and satellite companies to offer every channel on an “a la carte” basis to apparently help consumers weed out channels that were not family friendly. In essence, this would make program “tiers” on cable and satellite systems illegal and likely drive up the cost of individual channels now in the “basic tier” on most networks. Finally, legislation has been advancing in both chambers of Congress that would raise fines on broadcasters for airing indecent programming, and several lawmakers have expressed interest in incorporating pay TV providers into that bill.
In one sense, the argument for censorship parity is powerful. After all, viewers don’t really make a distinction between over‐the‐air and pay TV sources anymore. More than 85 percent of households currently subscribe to either cable or satellite television services, and traditional broadcast networks are now just a few of the options we can flip through in our 500‐channel universe. So why should older broadcast television networks be the only ones taking the regulatory heat?
The downside of regulatory parity is obvious: Congress and the FCC would start censoring pay TV providers and programs. Consider what that might mean for cable networks like HBO or Showtime, which produce popular, but admittedly controversial, programs, such as The Sopranos, Sex and the City, Queer as Folk, and The L Word. Should Congress or the FCC really have the right to regulate the content of such programs, or even when they are shown?
Moreover, what happened to common sense and personal responsibility in this country? After all, cable and satellite boxes, personal computers, and Internet connections didn’t just magically appear in our homes; we put them there! Once we voluntarily bring these devices into our homes we shouldn’t ask government to assume the bulk of the responsibility for then minding our children. Those of us who are parents understand that raising a child in today’s modern media marketplace is a daunting task at times. But that should not serve as an excuse for inviting Uncle Sam in to play the role of surrogate parent for everyone.
Luckily, Congress doesn’t have the right to censor pay TV, thanks to the First Amendment and America’s strong tradition of freedom of speech and expression. Lawmakers have never been able to censor supposedly “indecent” material in newspapers, magazines, books, cable, satellite, or the Internet the same way they have broadcast television. Courts will simply have none of it.
But the danger of back‐door censorship still lurks with the growing convergence of media providers and technologies. In the future, traditional broadcasters might deliver their shows directly to consumers via cable, satellite, or even Internet video streaming. If they do so, even more regulatory pressure will be brought to bear on those private operators. However, given the traditional court‐based protections for those other media providers, media convergence could result in less censorship for everyone, including traditional broadcast stations.
But make no mistake, this fight is no longer just about a brief flash of flesh during the Super Bowl or a few dirty words on radio; it’s become about a blatant political effort to gain more control over cable and satellite television as they supplant over‐the‐air broadcasting in America. And if Congress and the FCC win the right to censor speech on pay TV, they will gain additional powers, such as the ability to mandate a certain amount of “educational” programming, free airtime for politicians, more “public access” programming, and so on.
So stay tuned, this fight is just getting started. One way or another, Ms. Jackson’s “wardrobe malfunction” might just end up ushering in a veritable revolution in federal censorship policy.