FCC en­croaches on First Amend­ment rights

The Washington Times Weekly - - Commentary -

As ex­er­cises in bu­reau­cratic hair­split­ting go, it is tough to beat the sheer au­dac­ity of Fed­eral Com­mu­ni­ca­tions Com­mis­sion Chair­man Julius Ge­na­chowski’s re­cent dec­la­ra­tion, “I’ve been clear re­peat­edly that we’re not go­ing to reg­u­late the In­ter­net.” In re­al­ity, be­tween its re­cently re­leased Na­tional Broad­band Plan and pro­posed Net neu­tral­ity guide­lines, that’s ex­actly what the agency is plan­ning to do.

The FCC doesn’t have clear le­gal au­thor­ity to reg­u­late the In­ter­net — in court fil­ings, it has re­lied on the du­bi­ous con­cept of “an­cil­lary ju­ris­dic­tion,” so it’s not sur­pris­ing that Mr. Ge­na­chowski doesn’t want to be seen as the No. 1 Net Nanny. And it is telling that not even the head of the FCC wants to court the pub­lic per­cep­tion that Wash­ing­ton is send­ing bu­reau­crats to med­dle in the na­tion’s com­mu­ni­ca­tion net­works. In­deed, Mr. Ge­na­chowski has in­ad­ver­tently raised the is­sue of his agency’s fun­da­men­tal value, or lack thereof. Step back, and the real ques­tion isn’t whether the agency has the au­thor­ity to reg­u­late the In­ter­net — it’s why the FCC has au­thor­ity to reg­u­late any­thing.

For­get the agency’s $338 mil­lion price tag for a mo­ment and ask, “What does the FCC do?” Its task is to over­see the na­tion’s com­mu­ni­ca­tions in­fra­struc­ture — which, th­ese days, means ev­ery­thing from TV and ra­dio to wireless phones and In­ter­net con­nec­tions. But how many of th­ese tasks con­sti­tute core gov­ern­ment func­tions? From nag­ging the Net to reg­u­lat­ing broad­cast speech, just about ev­ery­thing the FCC does is ei­ther oner­ous or in­ef­fec­tive. Ei- ther way, it’s un­nec­es­sary.

Take its role as broad­cast cen­sor: The agency has spent years en­forc­ing an ar­bi­trary, in­scrutable code gov­ern­ing what speech and im­ages are ac­cept­able. Are four-let­ter words for­bid­den or not? Which ones? And when? What about breasts or bot­toms or lower backs? Does it mat­ter if the con­text is med­i­cal, ac­ci­den­tal or unattrac­tive? The FCC’s an­swer to all of those ques­tions is yes, no, maybe or all three, de­pend­ing on whether the words and pic­tures in ques­tion meet its def­i­ni­tion of in­de­cency. But that test is per­formed us­ing guide­lines that are clear as mud: “An av­er­age per­son, ap­ply­ing con­tem­po­rary com­mu­nity stan­dards, must find that the ma­te­rial as a whole ap­peals to the pruri­ent in­ter­est.” Who counts as an av­er­age per­son? And how is one to de­ter­mine cur­rent com­mu­nity stan­dards in a coun­try that con­tains both the joy­ous vul­gar­ity of down­town Man­hat­tan and the quiet piety of Penn­syl­va­nia’s Quaker com­mu­ni­ties? The an­swer, un­for­tu­nately, is that th­ese judg­ments are left to the FCC’s whim.

But its rules are not only capri­cious, they are of du­bi­ous con­sti­tu­tion­al­ity. The Supreme Court ruled in a 5-4 de­ci­sion last year that the FCC has the power to fine broad­cast­ers for so-called “fleet­ing ex­ple­tives” — ex­ple­tives used as ex­cla­ma­tions on live TV, for ex­am­ple. But the court did not defini­tively set­tle the First Amend­ment im­pli­ca­tions of al­low­ing a fed­eral agency to cen­sor broad­casts. The judg­ment here should be a no­brainer and one upon which lib­er­als, lib­er­tar­i­ans and con­ser­va­tives can all agree: When it comes to speech, Wash­ing­ton should have no power to de­cide what is, or is not, per­mis­si­ble to say.

The FCC’s en­tire ap­proach is to rule by im­pulse and ex­pand its reach when­ever and wher­ever pos­si­ble. Re­cent FCC ac­tions in­clude in­ves­ti­gat­ing the ap­proval process Ap­ple em­ploys in its iPhone App Store, mulling whether and how phone com­pa­nies might up­grade their net­works and pass- ing judg­ment on var­i­ous con­sumer de­vices of min­i­mal likely im­por­tance, such as the Palm Pixi.

When the FCC was launched in 1934, back­ers ar­gued that air­wave scarcity jus­ti­fied its ex­is­tence. In an age of in­for­ma­tion over­load, with a nearly in­fi­nite ar­ray of me­dia choices avail­able to any­one with a mo­bile phone or broad­band con­nec­tion, no such ar­gu­ment can be made. Yet rather than shrink­ing, the FCC has bal­looned, grow­ing its bud­get by more than 60 per­cent be­tween 1999 and 2009.

If some­thing ex­ists any­where near the realm of tech­nol­ogy or com­mu­ni­ca­tions, the FCC tries to make it its busi­ness. But to what end? And at what cost? A 2005 study by econ­o­mist Jerry El­lig es­ti­mated FCC reg­u­la­tions cost con­sumers up to $105 bil­lion a year in ad­di­tional costs and missed ser­vices. Throw in its own $338 mil­lion bud­get, and it is time to pull the plug on the FCC.

Peter Suderman is an as­so­ciate ed­i­tor at Rea­son mag­a­zine.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.