Examining the FCC's indecency regulations in light of today's technology.

• Author: Steele, Elizabeth H.

1. INTRODUCTION II. BACKGROUND III. HISTORICAL PERSPECTIVE A. The Perception of Children B. The Transformation of the Definition of Indecency IV. JURISPRUDENCE A. Federal Communications Commission v. Pacifica B. The Creation of "Safe Harbors" C. Federal Communications Commission v. Fox D. Federal Communications Commission v. Fox, Remanded III. THE CURRENT LANDSCAPE A. Advances in Technology B. Why Safe Harbors No Longer Make Sense VI. PROPOSAL FOR THE FUTURE VII. CONCLUSION I. INTRODUCTION

   "A babe in a house is a well-spring of pleasure, a messenger of peace and love: A resting place for innocence on earth; a link between angels and men." (1) With a prevalent attitude in this country that children are innocent beings, it is not surprising that the FCC used the protection of children as a reason to regulate indecency in the broadcast media through legislation such as the Communications Act of 1934. (2) By keeping the airwaves flee from indecent material, children would, in theory, be able to retain the innocence that they are seen to possess.

   While these FCC regulations have evolved over time, the recent advances in technology have made these regulations infeasible and illogical. If the goal is still to protect children from indecent material that is broadcast over the airwaves, something in the system needs to change, because children have multiple avenues through which they can access material that is broadcast at all hours of the day. Deregulating appears to be the most practical and effective option that is currently available, and is an effort that the FCC should consider undertaking.

   Along with providing a different proposition for the future of these ineffective broadcast regulations, this Note will examine how the perception of children as innocent beings led to the regulation of indecent broadcast material. It will also look at the evolution of the definition of indecency, including a look specifically at the Supreme Court decisions in the 1978 case of Federal Communications Commission v. Pacifica Foundation, (3) the 2009 decision remanding Federal Communications Commission v. Fox Television Stations (4) to the Second Circuit, and that 2010 decision by the Second Circuit. (5) Finally, the current advances in technology, including television's availability on the Internet and digital video recorders (DVR), will be discussed. These advances have made children's access to broadcast media much easier, thus making the indecency regulations no longer feasible in today's increasingly technological world.

   A recommendation for the future of indecency regulations will also be suggested, so that the law more realistically aligns with the technology available today. This proposal is a move toward complete deregulation of broadcast television in regard to indecent material. The regulations are no longer effective, and have the potential to be costly to both the networks-if they keep being the subject of litigation and fines--and to the public as a violation of the First Amendment. By deregulating, the networks would have greater freedom to broadcast according to the public's interests and what they deem to be appropriate without fear of penalties.

   Further, giving the networks more freedom will benefit the networks themselves and the public that wants access to this type of material; but it will not cause any great harm to anyone. The material that is made available on television is not likely to change in a drastic way, since the networks would lose many viewers if their broadcasts became too indecent for the public as a whole. Further, children would not be any more harmed by the material that is broadcast, because, in addition to it likely being very similar in nature to what is currently being broadcast by the networks-children are going to gain access to this material through DVR and television on the Internet anyway. It would therefore be in all parties' best interest to deregulate this aspect of broadcast television.

2. BACKGROUND

   While others have addressed the issues that are present with the FCC indecency regulations, the suggestion of deregulation has rarely been seriously considered. (6) The problems that are inherent in indecency regulations have been the subject of past scholarship, however, with many people recognizing the ideas on which this Note relies in making its proposal for a change of the indecency regulations: the ineffectiveness of the regulations, the advances in television technology, and the potential First Amendment complications.

   Adam Candeub, for one, recognizes that broadcast indecency regulations simply no longer work because they are not feasible in today's environment. (7) He points out that the courts use the rationale of protecting children in upholding indecency regulations, but that the true motives are more political than anything else. He suggests that the regulations have been "proven [to be] unstable and highly politicized standards that do not represent a thoughtful policy to protect children or encourage a child-friendly broadcast medium." (8)

   If the regulations are present for the purpose of protecting children and they are not achieving that goal, then something needs to be done to make the current system more effective. Candeub also points out particular regulatory procedures that are intended to protect children, and he describes how they do not serve their intended purpose. (9) Further, Candeub addresses indecency regulations, which, in addition to being politicized, are not able to appropriately respond to community standards on what type of material is appropriate for children. (10) If the FCC cannot effectively reflect community standards, then, as this Note argues, it is time to let the community members themselves set the standards for what is appropriate through their power as consumers of the broadcast material.

   Matthew Schneider also criticizes the current FCC regulations. He points out the problems with the indecency regulations' application to only a small minority of stations--broadcast network stations--and suggests a proposition that would make the regulations more consistent. (11) His suggestion is to apply the regulations to all channels so that the rationale of protecting children could possibly become a reality. (12) If all a child has to do is change the channel to access indecent material, then the FCC's policy and attempts to shield children from indecent material is not meritorious. (13) With disingenuous motives and ineffective solutions, there seems to be an agreement that now is the time for a change in indecency regulations.

   Another issue that has been the subject of past scholarship and discussion is the advance in television technology. While this Note will focus on television on the Internet and DVR, others have noted that V-chip technology or satellite television have changed the face of television broadcast regulations. (14) While some technology has allowed parents to better monitor the content of the television their children watch, other technology has made indecent material more accessible to children. The technologies on which this Note focuses have also made broadcast material more easily available to children, requiring that the FCC do something to change its current policies. While some suggest stricter and more pervasive regulations, (15) this Note comes to a starkly different conclusion in suggesting a more hands-off approach.

   Finally, others have also considered the First Amendment implications of these broadcast indecency regulations. Schneider suggests that the indecency regulations have a negative First Amendment effect on the American public. (16) He discusses the fact that if viewers have to turn to "niche channels" in order to see the television content that they wish to see, then that is going to deprive the public of shared experiences, since not everyone will have access to those channels. (17)

   The difficulty of creating a regulation that is in compliance with the First Amendment has also been brought up as an issue. Brian Rooder, one of the few to recommend deregulation, suggests that the indecency regulations are both vague and overly broad, and that the FCC is going to have a hard time coming up with a solution that will pass constitutional muster. (18) This Note agrees with this proposition and uses it in support of the argument against implementing stricter FCC indecency regulations.

   Although others have discussed these issues and made suggestions for ways in which to change indecency regulations, there has still been no effective solution created. Based on this previous scholarship, along with the recent Second Circuit decision, this Note will argue that it is time to consider a new factor for a new solution to the problem of indecency regulations. With a consensus that the regulations are not effective and pose constitutional concerns, this Note adds to the discussion of the effect of advances in technology on the rationale that regulations protect children, and suggests that the most logical and effective course of action is for the FCC to take a step back and let the market take care of the content that is broadcast over the airwaves.

3. HISTORICAL PERSPECTIVE

   1. The Perception of Children

      Historically, children have not been assumed to be innocent and in need of protection. In ancient Greece, for example, children were associated with "grossness and lewdness, not innocence," (19) and in ancient Christian societies, the common fates of children included abandonment, infanticide, and sale into brothels. (20) It was not until the seventeenth century that the notion of children as innocent beings was invented. (21) In U.S. history, the first obscenity and indecency law was enacted in Massachusetts in 1711.22 This law banned "any filthy, obscene, or profane song, pamphlet, libel, or mock sermon." (23) However, this law was mostly used for the protection of religious sermons. (24) It was not until...