"In regulation, as in sports, it is good to have clear rules."
So writes FCC Commissioner Ajit Pai in a recent regulatory opinion. While this is a fairly pedestrian observation, it is Commissioner Pai's citation for this pearl of wisdom that makes it remarkable.
Cf. Walter Sobchak, The Big Lebowski (Polygram Filmed Entertainment 1998) (“Smokey, this is not ‘Nam. This is bowling. There are rules.”).
We do wonder, however, if Pai will apply Big Lebowski principles to the FCC's enforcement of indecency:
THE STRANGER: Do you have to use so many cuss words?
JEFF LEBOWSKI -- THE DUDE: What the fuck you talkin' about?
The Dept. of Justice appealed the Second Circuit's decision that the FCC's indecency regulations are unconstitutional to the Supreme Court. Creative Voices is a party in those cases and we look forward to participating. WSJ report here.
Jonathan Rintels of Creative Voices in Media joins Coy Barefoot on WINA 1070-AM in Charlottesville, VA to discuss the National Broadband Plan.
TV broadcast networks and major cable operators with ownership stakes in cable channels continue to squeeze independent TV producers and channels off the air, the Government Accountability Office reports. Creative Voices was pleased to have worked with GAO to document in this important report the chokehold that Big Media has over access to television. In particular, GAO found "major broadcasters produced about 76 to 84 percent of prime time programming hours.
Full article and links to the GAO Report are here.
Creative Voices presents The Censorship Chronicles, a series of informative, humorous, and wide-ranging interviews with prominent creative artists about the impact of the FCC's indecency decisions, hosted by Jonathan Rintels, Executive Director of the Center for Creative Voices in Media. The first three in the series are:
Steven Bochco, Emmy, Peabody, and Humanitas-award winning creator and producer of NYPD Blue, LA Law, Hill Street Blues, Doogie Howser, Hooperman, and many other television series, discusses the FCC's finding that NYPD Blue was indecent, as well as the impact of censorship on creative artists, available here.
Peggy Charren, the founder of Action for Children's Television and the "Mother of Quality Children's Television," has been awarded both a Peabody Award and the Presidential Medal of Freedom. A firm believer that government censorship does not help children, but harms them, Ms. Charren discusses the impact of the FCC's indecency decisions on children, parents, television, culture, and democracy, here.
Vin Di Bona, Emmy and Peabody-award winning creator and producer of America's Funniest Videos on ABC, discusses the FCC's handling of a complaint against that show, as well as the impact of the FCC's indecency decisions on independent creative artists, television, culture, and democracy, here.
These interviews were conducted in 2006. With our podcasting page shuttered due to cost constraints, we brought them over here to our blog.
On Thursday, January 29th, 2009, Jonathan Rintels, President and Executive Director of Center For Creative Voices In Media joined Charlottesville Right Now to discuss the switch from analog television to digital television on February 17th, 2009. Rintels also discusses what the stimulus package could mean for broadband infrastructure jobs. Charlottesville Podcasting Network - Blog Archive - Charlottesville-Right Now: Jonathan Rintels.
Alas, the Supreme Court skedded our indecency case on, wouldn't you know it, Election Day. Choosing between Voter Protection in Virginia and the Supremes, we chose Voter Protection and thus can't give our own eyewitness report on the oral argument. But John Eggerton of Broadcasting & Cable writes that, Chief Justice John Roberts and Justice Antonin Scalia raised some tough questions about whether the FCC had really changed its policy, and whether, in fact, it had sufficiently justified that policy. When Fox argued that society had become more tolerant of language in the 30 years since the Pacifica decision on broadcast profanities, Scalia asked whether the network might have had something to do with that. "Justice Ginsburg appeared to be squarely in our camp," said the representative. "Scalia, probably on the other side." Ginsburg said there was no "ryhme or reason" behind the FCC finding swearing in a documentary about the blues indecent, but not finding it indecent in WWII film Saving Private Ryan.
Kudos to Sen. Patrick Leahy (D-VT) for remarks last night at The Media Institute: "The media should be...bringing vibrant and interesting voices and views into our homes,' not worrying that "an inadvertent slip is going to land them in trouble with regulators." Leahy said that while he does not want 'TV screens and radio shows filled with offensive and innapropriate words and images," he also said he had discovered that "there is an on/off switch," and suggested that was an important content contol technology. He also put in a plug for the V-chip/ratings system. The senator said he believed "Strongly" that it was the role of parents, not government regulators, "to determine what is appropriate for children to see and hear." "Good lord, where are we in this country," Leahy said after recounting the story of NBC affiliates afraid to show an episode of ER about breast cancer because they feared a brief depiction of a woman's breast would get them in trouble with the FCC. Leahy Lays Into FCC Over Indecency Enforcement - Broadcasting & Cable.
Josef Adalian in Television Week does a wonderful job of calling out the Parents Television Council. Couldn't be timelier, with the Supreme Court about to hear the crucial Fox v. FCC case, a case ginned up by the PTC banging on its email lists to flood the FCC with comments, most from people who never saw the show they were complaining about.
Now former FCC Michael Powell tells us he regrets having approved the decision to declare Bono's comments indecent. "It was a terrible mistake and I voted for it," Powell said at a forum on the Commission held in mid-September. Supreme Court to hear FCC f-bomb appeal on Election Day . Recall when that decision, and the Janet Jackson furor, broke out -- in 2004, as President Bush was "basing" his reelection campaign on his appeal to the conservative "base." Powell, as FCC Commish, reversed his former vocal opposition to expansive FCC "indecency" enforcement, and instead launched the Commission on a virtual crusade against it. As we pointed out at the time, Powell was simply using the FCC to inflame (energize?) the base and turn the 2004 election in a "culture war" referendum. Now, apparently, his principles and conscience have returned. Unfortunately, creative media artists and the public have been saddled with his legacy: arbitrary and capricious FCC decisions that make a mockery of the First Amendment. That's what the Second and Third Courts of Appeal have found, and why we're a party to upholding the Second Circuit in Fox v. FCC, to be heard by the Supreme Court on November 4.
Television Watch has created "Television Tools for Parents 101", an excellent tool for concerned parents to take control of television content. Let's let parents make the decisions on what their children can watch, not the federal government Let's let consumers decide what should be on television, not unelected FCC Commissioners. Check out "Television Tools for Parents 101".
Harry Jessell, the influential editor of TV Newsday, writes that broadcast television stations should enter the fight for open access Net Neutrality regulations to ensure that they are able to reach their audiences over the Internet. Extremely interesting development in the fight to preserve a level playing field on the Internet since the MPAA is on record as opposing Net Neutrality, and most of the major television networks are members of the MPAA following their consolidation with major film studios. Says Jessell:
The question is, is this the NAB's fight? I think it is. The last thing that a station needs to discover is that its Web site is not loading as quickly or looking as good as that of the local Yellow Pages publisher because the directory publisher cut some kind of deal with the cable company. Or worse, the station Web site is functioning slower because the local cable company has its own competitive site. TVNEWSDAY - TV Needs to Join Net Neutrality Fight.
Former FCC Chairs Newton Minow and Mark Fowler, joined by other former FCC Commissioners and officials, have added their respected -- and "dismayed" -- voice to that of Creative Voices in urging the Supreme Court to uphold the Second Circuit's decision in Fox v. FCC. In their brief, they write:
... we have been dismayed by a series of recent [FCC] decisions that have transformed a hitherto moderate policy of policing only the most extreme cases of indecent broadcast programming into a campaign of regulatory surveillance that will chill the production of all but the blandest of broadcast programming.
The FCC’s policy towards broadcast indecency has evolved from a restrained effort to regulate clear, flagrant instances of indecent language by a handful of broadcast licensees and performers into an ever-expanding campaign against ordinary radio and television programming. In pursuit of a policy of protecting children against exposure to extremely offensive language, the Commission has embarked on an enforcement program that has all the earmarks of a Victorian crusade. To effectuate its new clean-up-the-airwaves policy, the Commission has radically expanded the definition of indecency beyond its original conception; magnified the penalties for even minor, ephemeral images or objectionable language; and targeted respected television programs, movies, and even noncommercial documentaries.
These officials also want the Supremes to strip away entirely the FCC's indecency enforcement authority. This is extremely powerful. The brief is at QuelloFCCFox.pdf. An excellent Broadcasting & Cable article is here.
UPDATED. Bill Triplett in Variety reports reaction to the brief from Ex-FCC Chairs and Commissioners:
"They do listen to the voice of experience," says Patricia Millett, an attorney in the Supreme Court practice of the bluechip firm Akin Gump. "And the fact that it's bipartisan will carry more weight because it looks less political. ... The court does pay attention when a brief is written in terms of
day-to-day work and how a policy is workable or not."
"They make a very compelling argument," says a veteran Supreme Court observer of the ex-chiefs' point. "They understand and are sympathetic to the FCC's task on indecency but experience shows that the commission can't handle the political pressure."
Matthew Lasar wrote on ars technica an excellent article on Creative Voices' brief to the United States Supreme Court to "send the Federal Communications Commission's tortured "fleeting expletive" rules to the shredder." He nicely puts our brief in the context of the history of indecency enforcement and litigation -- very interesting piece. Artists to SCOTUS: FCC fleeting expletives policy is f*ed up.
Inspired YouTube lunacy on the dangers of media consolidation and the need for net neutrality from legendary Lloyd Kaufman, producer of such great Troma pics as The Toxic Avenger, and chairman of the Independent Film and Television Alliance. The last line: If Media Conglomerates Grow, Independent Art Will Not. We agree! YouTube - Lloyd Kaufman Defines Media Consolidation.
Creative Voices applauds today’s FCC decision to protect and promote an open Internet where consumers have the freedom to access the lawful Internet content of their choice and use the lawful applications of their choice. The FCC decision today marked an important victory in the battle over whether consumers will have the freedom to enjoy the full Internet, or whether they will they be restricted to visiting sites approved by – or in business with – the cable, telephone, or media conglomerate “gatekeeper” that provides broadband Internet access.
Because extreme media consolidation and concentration have eliminated so many independent voices and visions from America’s mainstream media, a growing number of creative artists now share their video, music, and creative visions directly with their audience over the Internet. Today’s FCC decision protects these artists from discrimination by broadband providers, promoting more independent and diverse voices in our media. That benefits creative artists and the American public. Read our full statement at Center for Creative Voices in Media: News.
Creative Voices today filed a brief urging the U.S. Supreme Court to uphold last year's well-reasoned Second Circuit reversal of the FCC's flawed indecency decisions in Fox v. FCC -- the Cher, Nicole Ritchie, and Bono "fleeting expletives" case. CV is an intervening party in the case, arguing that the FCC's arbitrary enforcement of its indecency rules has created a "chilling effect" that harms creative artists and the general public. Big Chill: How the FCC’s Indecency Decisions Stifle Free Expression, Threaten Quality Television, and Harm America’s Children, our report documenting numerous incidents of censorship and the insidious harm of the "chilling effect," was attached to the Supreme Court brief as an appendix. The Big Chill report is available here. Center for Creative Voices in Media: News.
Of all the encomiums for the 3rd Circuit's overturning of the FCC's CBS/Janet Jackson Super Bowl "wardrobe malfunction" fine, perhaps the most unexpected is this:
“Perhaps it is time to read the handwriting on the wall: the guardians of our First Amendment freedoms in the courts are not going to allow the FCC to play the role of media supernanny,” said Ken Ferree, president of the libertarian Progress & Freedom Foundation. “A free and vibrant, even if occasionally coarse, marketplace of speech is the cornerstone of a free society. We allow government to meddle in that marketplace at our peril.”
As many will recall, then FCC Chair Michael Powell pushed hard for the Janet Jackson fine, making the rounds of all the talk shows to express how outraged he was, attempting to turn the incident, it appeared to many, into a defining moment in the "Culture Wars" and a campaign issue for President George W. Bush's reelection. Ken Ferree, of course, was FCC Chairman Michael Powell's top aide and close friend at the FCC, running the Media Bureau. Welcome to the fight, Ken! Court tosses FCC Super Bowl fine - Variety.com.
Creative Voices applauds today’s ruling by the U.S. Third Circuit Court of Appeals that the Federal Communications Commission’s indecency decision and $550,000 fine against CBS in the Janet Jackson Super Bowl halftime case were “arbitrary and capricious,” and therefore unlawful.
As both the Third Circuit in this case and the Second Circuit in last year’s Fox v. FCC case (Cher and Nicole Ritchie “fleeting expletives”) found, overly broad FCC decisions on what constitutes “indecency” that arbitrarily overturn decades of Commission precedent put creative, challenging, controversial, non-homogenized broadcast television programming at risk. In many cases, the very kinds of television programs that parents want their children to watch – high quality documentaries, histories, and dramas – have been impacted. Thus, the chilling effect of these now-overturned Commission decisions harmed not only media artists, but the American public. Read our full press release at Center for Creative Voices in Media: News.