FCC Report Language Troubles Attorneys

Even as the Federal Communications Commission released its media management report to Congress two weeks ago, it was already agreeing with a congressional call for more than the requisite survey of the landscape the report provided. While acknowledging the report failed to answer some key questions, the FCC signaled an additional inquiry. And both the report and the further review are buttressed by language that could lay the groundwork for applying indecency regulations to cable and satellite. In the report, which was approved unanimously by the five commissioners, the FCC described television as a "uniquely pervasive presence in the lives of all Americans," attributing the quote to the 1978 Pacifica decision involving airing of George Carlin's "filthy words" routine. It went on to talk about TV as the medium of choice, supporting the claim with statistics that do not separate out broadcasting from cable or satellite, as a preamble to discussing what content control tools are available on both pay and free TV. The rub in all this is that the FCC put "television" in front of the Pacifica quote in the report, when Pacifica dealt generally with "broadcasting," and with only over-the-air broadcasting. The Pacifica case, in fact, was about radio. But by applying the "uniquely pervasive" moniker to all of TV, free and pay, the FCC echoed the longstanding justification for content regulation that has not applied to pay TV media.