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Indecency, priorities,
regulators - and fairness.
Having for two months now commented
on US indecency regulations - and in the meantime seen more large
fines with further yet penalties expected and until this week not
a sign of a fight back from the broadcasters - we have decided to
make it a hat trick this month.
First we would like to take up the issue of fairness. Here we have
no time for the views of Federal Communications Commission chairman
Michael K. Powell, who takes the stance that it there should not
be specific guidelines as suggested by some broadcasters, notably
Mel Karmazin of Viacom: "You do not want the government to
write a 'red book' of what you can and cannot say", he commented.
We disagree totally and take the view that the US public is capable
through its listening actions of making it clear what material,
to use a regulator's phrase, is "patently offensive as measured
by contemporary community broadcast standards are."
Let us for a moment, however, accept that Nanny Powell and his sisters
Brent Bozell and others, rather than wishing to enforce their view
of the world on all others are operating from a genuine concern
that they think is overwhelmingly shared by members of the public
who are simply too addicted to change their listening habits.
In that case it would seem to us that making the rules clear will
allow proper debate as to whether or not their views are indeed
those of the majority - but no! It would seem rather that Nanny
P thinks putting down clearly what they are supposed to object to
is just too much for the infantile citizens of the US.
Thus can Nanny and cohorts exercise power in an arbitrary manner
without due debate and checks and potentially abuse that power.
We think in that context that George Carlin's separation of "tit"
from the other six banned words in his Seven Banned Words skit regarding
former FCC rules was a public service - it exposed the nonsense
of the then rules to justified ridicule and is a useful pointer
to the wider context within which indecency regulation should be
considered.
Justice delayed is justice
denied.
We also take the view that to impose massive
fines a year after an offence when at the time it was committed
no such penalty could have been expected is far too close
to retrospective legislation to be acceptable in any reasonably
law-abiding society.
We would accept that following due debate and a change in
the law, even if we would wish to fight the change, there
can be no ambiguity about the nature and scale of the penalties
that can be imposed and to that extent their imposition is
fair. Changing the law itself retrospectively should be totally
unacceptable.
Changing the law
itself retrospectively should be totally unacceptable.
Even worse than imposing much larger penalties than could
have been expected is to issue a definition of what constitutes
an offence and then, following a change in political climate,
reverse a decision made by the relevant officials - in this
case the FCC Enforcement Bureau - as was done in the Bono
case.
We are pleased that the broadcasters have finally decided
to object to this - as we are to see Viacom still refusing
to pay the penalty the FCC is demanding in the Opie and Anthony
case.
As we have already commented, we sincerely hope the courts
excoriate the FCC Commissioners and take the view that the
only honourable thing the commissioners could do in such a
situation would be to resign: Ideally they'd be thrown out
as unfit to be in their posts.
Pettifogging and real obscenities.
Just as Carlin drew a distinction between tit and the other words,
we'd draw a distinction between the importance of the upset that
is likely to be caused by overhearing a few "dirty words"
and the trauma to real victims of real violence, not forgetting
that rape as well as murder featured prominently in recent conflicts
such as those in the former Yugoslavia and Rwanda.
Although our instincts are not to curb political comment, the
experience in these countries indicates that at times this may
be reasonable in view of the potential effects of rabble-rousing
broadcasts: The question is whether this should be done in the
context of broadcasting regulation or general laws relating to
incitement.
As we've thought more about it, it seems to us that in the context
of a moral consideration of real events and responsibilities in
the real world many people supported by those like L. Brent Bozell
III are far more immoral and obscene than the Howard Sterns and
even Bubbas of this world, despite his notorious wild boar castration
and killing stunt.
So what about tuning
away or using the off switch?
The obvious advice to those tuning accidentally
into a shock jock- as opposed to the Super Bowl, which after
all is a one-off annual occasion of a particular general appeal
- is that they can speedily tune to another channel or switch
off: The question this begs is that of how far a society should
in fact enforce some standards of behaviour in public, as
opposed to private places, since in a sense the advice in
principle is the same as telling those who object to fornication,
say in a public library, that they should avert their gaze
and maybe muffle their ears.
It comes down in both cases it would seem to us to a matter
of balancing pros and cons - in the library case we would
argue that the balance of greater good or least inconvenience
to the largest number clearly lies in favour of those using
the library for the purpose for which it was designed and
that those who wish to fornicate should find locations more
suitable for that purpose.
When it comes to the shock jock, the argument is less simple,
but there is still a balance to be struck and the balance
should clearly be different for subscription and free to air
services.
Is there a case for
broadcast indecency regulations in today's world?
The obvious advice to those tuning accidentally
into a shock jock- as opposed to the Super Bowl, which
after all is a one-off annual occasion of a particular
general appeal - is that they can speedily tune to another
channel or switch off: The question this begs is that
of how far a society should in fact enforce some standards
of behaviour in public, as opposed to private places,
since in a sense the advice in principle is the same as
telling those who object to fornication, say in a public
library, that they should avert their gaze and maybe muffle
their ears.
It comes down in both cases it would seem to us to a matter
of balancing pros and cons - in the library case we would
argue that the balance of greater good or least inconvenience
to the largest number clearly lies in favour of those
using the library for the purpose for which it was designed
and that those who wish to fornicate should find locations
more suitable for that purpose.
When it comes to the shock jock, the argument is less
simple, but in general we'd take the view that the balance
between allowing a substantial audience to listen to what
they want and the problems caused to a few people who
tune in momentarily to a strange station and are offended
will go against the latter in most circumstances and the
others are ones that should be defined clearly not vaguely
with regular updating if need be as mores change.
Subscription and Internet services.
We are concerned
that in their current puritanical mode legislators will
try to extend to these services limitations applying to
free-to -air broadcasts but when it's a matter of choice
consciously made before being able to listen, as in subscription
services, we're firmly of the belief that the only area
that should be regulated relates to material that in some
way breaches normal laws as with incitement to violence
or hatred. If it's just a matter of someone being upset
by what they feel is offensive to dirty talk, they should
be told firmly that they needn't subscribe and then ignored.
That's what the First Amendment is all about and we trust
the courts would take the view that the regulators have
no business sticking their noses into controls of satellite
or Internet radio.
What we would accept here - and also for free-to-air radio
as digital is introduced allowing more sophisticated warnings
- is that it might be reasonable to expect warnings via
text or other visual displays of the kind of material
that could be coming up. It would be overkill in our view
but digital services could also certainly be configured
to allow something similar to the V-chip to be installed
so that services outside a range can be programmed out
of a receiver's capability.
We doubt many would use it, but including the codes in
a broadcast would not be that expensive and we're sure
that if there is indeed substantial support for the idea
there'd be manufacturers willing to make receivers with
the capability for those who want to pay for it.
Conclusions on
the basis for regulation of terrestrial broadcasts.
We feel the operating
principle should be to apply limitations primarily
on the basis of programming that could lead people,
even if only a small minority of them, to actions
that abuse children or the vulnerable but assume that
adults can behave like adults in most circumstances
and react accordingly.
In a sense this is already recognized through the
use of watersheds - allowing certain programming only
after children are not thought to be likely to listen,
a practice that, if thought through, undercuts many
of the comments currently coming from the US: The
question here in our view is how far the call for
bans on material relates to embarrassment for adults
when they are asked questions and how far it relates
to genuine concern for children.
We would suggest that the evidence there is suggests
that far more harm is done to children through the
effects of much advertising and promotions, such as,
for example including gifts with junk food and indeed
the general effects of advertising directed at those
too young to be able to make sound judgments.
The best
constraints for terrestrial broadcasts.
In the absence of any such technological
fix the market seems to us to be the best constraint
system for commercial broadcasters: The very fact
of having to attract audience and advertisers
and keep them are in our view constraints enough
to keep most broadcasts within levels acceptable
to the community to which they broadcast.
We come to a few simple conclusions:
1: Enforcement as with all laws
needs to be consistent both as to what is an offence
and the penalties involved. Hence the courts should
tell the FCC that it has to set down clear rules
that are acceptable legally as regards indecency
offences.
2: Timely rulings are essential
to a fair system. In this regard, the FCC should
insist, as do most countries on recordings being
kept of all programming - it need not be of broadcast
quality as it is content not frequency range that
is the issue - so that facts can be ascertained
speedily. If broadcasters themselves are unwilling
to do this, the FCC should be directed to set
up appropriate recordings systems round the country
and the broadcasters through licence fees billed
for the cost.
Linked to this should be a timetable for complaints
to be made - say a maximum 30 days after a broadcast,
thus meaning recordings only have to be kept for
35 days or so. Following this a maximum period
should be set within which a notice of apparent
violation must be issued - we'd suggest 60 days.
Thus, unless there is an appeal, no ruling will
be accepted more than 90 days after an offence.
3: Any regulations that are to be
made should not pay significant heed to simple
embarrassment of adults but should be primarily
directed to programming that could lead people,
even if only a small minority of them, to actions
that abuse children or the vulnerable.
What you think? Please E-mail
your comments.
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