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February 26, 2004
Broadcast Channels, Government Monopolies, and Responsibility

After updating my original post on Howard Stern's suspension from Clear Channel stations this morning about a dozen times and staying abreast of the feedback from Jeff Jarvis' diatribe from yesterday, I want to restate my entire perspective on broadcast responsibilities, just to eliminate some gaps caused by what I thought were basic assumptions regarding their nature.

In 1934, after commercial radio expanded rapidly as a medium, Congress passed the Telecommunications Act which created the FCC to control commercial broadcast stations. Control was necessary because up to then, radio stations could step on each others' signals, creating an environment where the most watts won. Instead, Congress gave the FCC the authority to require commercial broadcast licenses, which were government-granted local monopolies on the broadcast frequency and protection from any potential interference from nearby frequencies. In return for the monopoly and its enforcement from the FCC, private-enterprise broadcasters agreed to air material in the public interest and abide by guidelines for decency. The result is that people cannot just build a transmitter and begin broadcasting commercial TV signals on their own; they must rely on licensed stations and broadcasters for their local TV service.

Desipte what some are claiming, entertainment producers that distribute exclusively over cable and satellite systems are not broadcasters. Their signals are sent to satellites at much higher frequencies that require a line-of-sight transmission method, rather than a widespread broadcast method. Usually they're encrypted as well, although not always; C-band satellite owners can tune in the downlink of unencrypted channels, if they've spent the $2000 for the equipment. Cable and subscription satellite distributors don't have a practical limit on channels they can carry, and uplink frequencies are so narrow that there is no need to grant and enforce monopolies on them, either. This means that anyone who wants to invest the necessary capital can create or purchase entertainment, lease satellite transponder space, and sell their product to the distributors, regardless of where their signal originates, because it doesn't interfere with anyone else's ability to do the same.

That's why the FCC regulates content for decency and why they fine those individuals and broadcasters who use their government-protected monopoly to broadcast indecent material. (Lest anyone think that this is a Bush Administration innovation, Clear Channel and Infinity were fined $1.7M in 1995 for indecent broadcasts because of Stern, and the President's last name wasn't Bush when that happened.) They don't hold subscription-only channels to the same standard because:

1. The customer pays for the service and should be aware of the content;
2. The distribution is such that the content must be watched through means other than broadcasting;
3. The subscription channels do not force other potential content providers out of the market.

For Jeff Jarvis and others to argue that enforcing rules and oversight that Congress clearly entrusted to the FCC means the end of free speech is hysterical demagoguery. These rules have been enforced on broadcasts for decades, and even if the threshold of indecency has receded, clearly they still exist, and even more clearly Stern and CBS's Super Bowl show violated them. Nor does FCC enforcement preclude free speech. The FCC has not said that Stern isn't allowed to be on the air, which would be a true free-speech issue; they are holding Stern and the broadcasters responsible for his exercise of speech, which is completely valid. Stern can't slander or libel people either. There are limits to free speech under certain circumstances, and speech over government-protected monopolies is one of those circumstances.

Clear Channel suspended Stern for violating their internal broadcast standards, which of course leaves them open to charges of hypocrisy. Anyone who's heard Stern for ten minutes knows what kind of show he has. However, it's still their right to select their on-air talent -- they are under no obligation to air Stern's show if they don't want to. It can be argued, with some merit, that renewed Congressional outrage and FCC enforcement over recent incidents of indecency drove their decision, but all that means is that Clear Channel is making a business decision about profitability. As Joe Carter said in his post, Clear Channel would probably be promoting Stern as a radio pioneer if they thought the cost of the fines would be outweighed by a commensurate increase in ad revenue.

Even if, as I suspect, Clear Channel wants Stern out regardless of the money just because they find him embarassing, it's still a business decision and not a First Amendment martyrdom. Howard Stern can still talk all he wants and say whatever he wants, but if he wants to get paid to do so, he'll need to convince people that he's worth all the hassle. Subscription radio may be a better market for Stern's repertoire, because it falls into the same categories as cable and satellite TV and doesn't require FCC oversight. He could also start a web site and produce live-streaming audio and sell to advertisers directly, thus becoming both an entertainer and a distributor, keep all the money, and say whatever crosses his mind. No one is silencing Howard Stern; Clear Channel is merely exercising control over their own distribution system.

Free speech only requires a speaker, after all, and is not a guarantee of an audience. Howard Stern does not have a right to Clear Channel's distribution, nor does Clear Channel or CBS have a right to their broadcast frequencies except as granted by the FCC under their rules and regulations. If they choose to operate through government licenses, they need to abide by those rules and regulations. If not, there are plenty of other options in the marketplace. Let's not confuse free speech with freedom from consequences, or Howard Stern with Jesus Christ.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at February 26, 2004 11:22 AM

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