Re: Censorship Run Amok: XM, Big Money at the FCC, and the Rest

[David Farber <dave () farber net>]

Begin forwarded message:

From: Billy Brackenridge <BillyB () msn com>
Date: May 19, 2007 3:34:19 AM EDT
To: dave () farber net
Cc: tom_jackson () sbcglobal net
Subject: RE: [IP] Re: Censorship Run Amok: XM, Big Money at the FCC,  
and the Rest

For IP, if you wish....

From: Tom Jackson <tom_jackson () sbcglobal net>
Date: May 18, 2007 8:20:25 PM EDT
To: dave () farber net
Subject: RE: [IP] Re: Censorship Run Amok: XM, Big Money at the FCC,
and the Rest

For better or worse, the constitutional right to free speech does not
stipulate that everyone must own a radio or satellite service.  There
is no obligation that the owners of such businesses tolerate anything  
they
consider inappropriate.

--------------------------------------------------------------

This is a problem with the Internet. People make self serving statements
purporting to be fact when exactly the opposite is fact. The entire
justification for regulation of the airwaves by the FCC is based on a
Supreme Court decision stating exactly the opposite.

http://en.wikipedia.org/wiki/ 
National_Broadcasting_Co._Inc._et_al._v._United
_States_et_al.

The whole justification for regulation of content over the airwaves  
is based
on this Supreme Court decision. This has evolved to be called the  
"scarcity
doctrine". The point is that "owning a radio station" implies that  
others
don't own a radio station. In this landmark decision, the Supreme Court
ruled that NBC could not control what went over the airways precisely
because 'ownership' of the airways denied others access.

This is fundamental law in the US. "Owning spectrum" is not a legal  
concept
recognized by law, but operating under FCC rules implies certain
obligations, and this case made it clear that broadcasters did not have
absolute control over content.

Where have you been for the last 64 years? The law is exactly the  
opposite
of what you have stated.

I have issues with the Wikipedia article cited above, but that can be  
a long
discussion which I'd be happy to engage in some other forum.

NBC played the same shows over multiple radio stations, and claimed  
it was
their right to do so under the first amendment. The Supreme Court  
ruled that
because of what later became to be called the "scarcity doctrine" NBC  
had
the obligation to represent more diverse programming.

Over time the FCC extended the 'scarcity doctrine' to justify more  
and more
control over broadcasting.

Later the under the Reagan administration the Communications act of  
1934 was
amended to get rid of those pesky obligations about "public  
interest", but
the right of FCC to regulate content under "free speech" is still in  
force.

I could digress into a discussion of the Bush Administration, Kevin  
Martin
and Janet Jackson's tits, but the fact that the FCC could get  
involved in
this issue stems from NVC vs. US. The law of the land is that  
broadcasters
don't have an absolute right to "free speech".

Kevin Martin (Head of FCC) has aggressively gone after indecency over  
the
airwaves. I'd love to see him and other Republicans sent home, but he is
well within the law in regulating content over the airwaves.

You may not like the law, but it would take an act of the legislature to
change it (fat chance), and the new law would be subject to judicial  
review,
and NBC v. US would still be a powerful precedent.





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