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Digital Watch: Will Open Internet Order Let FCC Regulate Internet Radio Decency? Not Likely

Since the FCC passed its new Open Internet rules, reclassifying internet service as a telecommunications utility, I’ve fielded some questions–occasionally hushed, others less so–about if there might be another edge to this sword. Concerns seem to be sparked by the Commission’s recent decision to throw the book at a Roanoke, VA television station for the inadvertent and fleeting airing of a clip from a pornographic video during an evening newscast. It’s been a while since the FCC has levied any indecency fines, and this one’s a doozy.

With the trend of online radio growing in popularity and the FCC taking a stronger role in regulating internet service, some radio folks have started to wonder if the Commission might start enforcing indecency rules in online radio, too. I’m happy to report that I think it’s extremely unlikely, to nearly impossible, and have good reason to say so.

First off, my best guess is the FCC has little interest in regulating online content. Despite a common perception on both the left and right of the Commission as a Big Brother style organization salivating at the chance to accumulate and express more power, in reality it’s just another overwhelmed regulatory agency, with no police powers, that is making moves to actually reduce its enforcement capacity, not increase it.

Even firmer evidence comes in the form of the Communications Decency Act of 1996. Or, rather, the fact that the anti-indecency sections of the Act were struck down by the Supreme Court in 1997’s Reno v. ACLU. The intention of the CDA was to impose broadcast-style indecency rules on the internet, to protect minors from content that “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” The landmark FCC v. Pacifica decision which upheld the Commission’s ability to regulate broadcast decency was one precedent used by the government to defend the CDA.

However, that defense failed. In his majority opinion, Justice Stevens acknowledged earlier cases in which the Court had recognized a legitimate government interest in protecting children from “harmful materials,” but concluded that the decency provisions of the CDA were “unnecessarily broad.” This means is that there is currently no statutory authority for any arm of the federal government to regulate decency on the internet, whether in the form of podcasts, streaming radio or outright porn.

For even further evidence we only have to look at other non-broadcast media that also falls under the FCC’s watch. Satellite radio, which uses radio frequency signals beamed from space, is regulated by the Commission, and yet broadcast decency standards do not apply. Howard Stern is free to engage in all manner of sex talk using all the f-bombs he wants on his SiriusXM show. Given his history of attracting indecency fines, that freedom was one of the main reasons he abandoned broadcast for satellite.

Cable television is yet another telecom service regulated by the FCC but is free to air much more content that would be too indecent for terrestrial broadcast. From premium channel shows like Game of Thrones to tamer, but often profanity-laced shows on basic cable channels like IFC, cable broadcasters don’t have to worry about ever getting an FCC fine for content. While many cable networks do edit, bleep and blur, they do so to keep sponsors, parents and local cable operators happy, not to avoid fines.

If the FCC wanted to start regulating indecency in other media and start racking up hefty fines it would be far easier for the agency to start making moves on cable and satellite broadcasters first. There’s fewer of them, they’re easier to find, and they have deep pockets. And, yet, the FCC hasn’t, and there’s no sign it ever will.

Finally, there is nothing in Title II or the Open Internet order that gives the FCC any authority over content on the internet in the first place. Quite the contrary, the point of the Open Internet is to ensure that our ability to receive information on the internet is content-neutral and non-discriminatory.

Don’t get me wrong, I don’t have blind faith in the FCC. While it sometimes regulates in what I think is truly the public interest, the agency’s actions on broadcast indecency, in particular, I often find over-reaching, unnecessary and anachronistic. But looking at all the available evidence shows that the risk of the Commission regulating indecency in internet radio is slim to none.


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